High court confirms media ombudsman correctly handled NBC oil exploration complaint

A Complaint against the Namibian Broadcasting Corporation (NBC) about a television programme on oil exploration in the Kavango East region was correctly handled by the media ombudsman, a High Court judge has found. In a judgement delivered in the Windhoek High Court, deputy judge president Shafimana Ueitele has found that former media ombudsman John Nakuta acted reasonably and rationally when he accepted a complaint lodged about a programme broadcast on NBC television near the end of March 2021. The complaint was about a discussion on the company ReconAfrica’s oil exploration drilling south-east of Rundu in the Kavango East area that was broadcast on NBC. The two people who lodged the complaint alleged the programme violated a clause of the code of conduct and ethics of the Editors’ Forum of Namibia (EFN), of which NBC is a member, by broadcasting paid content in favour of ReconAfrica’s activities. ReconAfrica’s drilling activities have been criticised by environmentalists worried about the impact oil exploration could have on the area and in the Okavango basin. After Nakuta referred the complaint to the EFN’s media complaints committee, the committee found in May 2022 that NBC breached a clause of the EFN’s code of ethics and conduct by not presenting both sides of the argument about ReconAfrica’s activities in the programme. The committee also found, though, that there was no credible evidence to indicate that the programme broadcast by NBC consisted of content that had been paid for, Ueitele noted in his judgement. NBC appealed against that decision, but the EFN’s media appeals committee dismissed the appeal and upheld the complaints committee’s decision in October 2022. After that, NBC filed an application at the Windhoek High Court, which was asked to review and set aside the decisions of the complaints committee and the appeals committee, and to also set aside Nakuta’s decision to investigate the complaint received by him and ask NBC to reply thereto. The EFN’s constitution not only empowers the media ombudsman to receive complaints against EFN members and to request parties against whom complaints are lodged to respond to the complaints, but it also obliges the ombudsman to receive complaints and ask the involved party to respond to it, Ueitele noted in his judgement. Nakuta correctly recused himself from making a decision about the complaint, due to having a conflict of interest, and allowed different structures of the EFN to deal with the complaint, Ueitele found. He said he also found there were no merits in NBC’s contention that Nakuta should have refused the complaint because it was filed eight days after a time limit of 30 days following the broadcast of the programme. “I further find that the NBC was given a fair opportunity to correct or contradict any relevant statement prejudicial to its view,” Ueitele said. He added that NBC did not provide the court with any exceptional circumstances that would entitle the court to review the merits of the decisions taken by the EFN’s media complaints committee and media appeals committee. Fair hearings need not necessarily meet the formal standards of the proceedings adopted by courts of law, Ueitele remarked. “I find that the media ombudsman acted reasonably and rationally when he accepted the complaint lodged by the complainants, which he had to accept and deal with by virtue of the functions of his office,” Ueitele stated. He also found that the conduct of the EFN and its structures was “the conduct of a fair and reasonable decision-maker”. Ueitele dismissed NBC’s review application and ordered the broadcaster to pay the legal costs of the media ombudsman, the media complaints committee and the media appeals committee. NBC was represented by Unanisa Hengari, instructed by Loini Shikale. Norman Tjombe represented the media ombudsman and other respondents.