Basic constitutional guarantees of free expression and media freedom, together with a deregulated environment that allowed for open competition between media, were considered the ingredients necessary for free expression and access to information to thrive. Namibia was in the forefront of this global trend and, indeed, free expression did thrive, and private media mushroomed, both here and elsewhere in Africa. But this new found freedom of expression and access to information were enjoyed largely by an urban elite, while rural communities, as well as marginalized groups such as women, children and disabled people, were often excluded from the information and communication loop. Consequently, the SADC Protocol, and the AC and ICT Declarations lay great emphasis on the promotion of pluralistic media, which the Protocol defines as “diversified media in terms of ownership, control and content”. Furthermore, the Protocol and Declarations require States to take proactive measures to ensure this pluralism is achieved. Independent media regulation, guided by clearly defined government policy, is the main tool for doing this, particularly with regards the broadcasting sector. However, the provisions of current and prospective regulation fall short of the requirements of the Protocol and Declarations in this regard, not least because commercial and political interests are allowed to override the promotion of diversity. As a result, the NCC Act, as well as the Draft Communications Bill that is set to replace it, only pay lip service to the promotion of broadcasting pluralism. Admittedly, diversity can be addressed in many respects through regulation that can be passed in terms of the existing laws, particularly the licensing mechanisms already available to the regulator. However, much clearer guidelines for regulators need to be provided in through both policy and the law, which need to incorporate and expand upon the principles for regulating media diversity laid down in the AC Declaration. For example, the legislative framework needs to recognise the three distinct “tiers” (sectors) of broadcasting – private, public and community – and broadcasting frequencies need to be allocated to all three on an equitable basis. The role of the public broadcaster in ensuring diversity has to be captured in a legally-binding public service mandate that is overseen by the broadcasting regulator. Thus the need for independent regulation becomes all the more apparent, as regulators and the media they regulate need to be shielded from the economic and political interests that currently distort the media landscape in favour of a powerful elite. Funding In tandem with proactive regulation, funding is another important tool for promoting the kind of media pluralism that is so essential for free expression and access to information, and the development and national building that these rights underpin. However, only one such funding mechanism currently exists, the Film and Video Development Fund, which, as its names suggests, specifically assists with the development of the audio-visual sector. The Draft Communications Bill provides for a Universal Service Fund, which will help fund the provision of telecommunications services to rural areas and otherwise marginalized communities. However, no such funding mechanism exists for supporting the development of broadcasting and print media, both of which, in could be argued, are more readily accessible to marginalized communities than film and video, as well as many of the new computer-based information and communication technologies. Both the Film and Video Development Fund, and the Universal Service Fund, fall under the control of their respective regulators, neither of which is genuinely independent. Therefore, it cannot be guaranteed that these funding mechanisms will be protected from economic and political interference, as is required by the AC Declaration. Consequently, it cannot be guaranteed that these funds will necessarily promote pluralism. Similarly, in terms of the 1991 Namibian Broadcasting Act, the NBC receives its State subsidy directly from the Ministry of Information and Broadcasting, and therefore is not adequately protected from arbitrary interference, as required in the AC Declaration. Meanwhile, the ban on Government advertising in The Namibian contradicts the provision of the AC Declaration that States shall not use their power over the placement of public advertising as a means to interfere with media content. Training Funding can in turn support the provision of training. However, only the Film and Video Development Fund currently provides for this. Otherwise, Namibian legislation does not Namibia Media Law Audit – report final draft 36