Talk Constitution Zimbabwe

1. Introduction

A free media is a critical component in the creation and maintenance of a healthy and vibrant democracy. It plays a key monitoring, evaluation and watchdog role over both private and public institutions. In functioning democracies, a free media thus contributes to greater accountability, good governance and socio-economic and political development.

However, for a free media to exist, it is largely dependent on the mechanisms a nation puts in place to ensure and safeguard media freedom. The constitution as the supreme law of the land thus plays a critical role in that regard.  A constitution ought to explicitly guarantee all facets and requisite components critical to the exercise of the right to freedom of expression and citizens’ right to access to information hence the need to foster the proliferation of a free, diverse, pluralistic and independent media environment.

Although Zimbabwe has a constitutional provision on the right to freedom of expression, its mere inclusion in the Bill of Rights is not sufficient guarantee that this right and other media freedoms are adequately protected. In its current state, the constitution does not adequately facilitate the enjoyment of these rights by all Zimbabweans.

The constitutional provision in s20 (1) does not explicitly guarantee media freedom and access to information.  As it is, these components have to be inferred. On the other hand, s20 (2) which is the limitations clause,  in its wording imposes further restrictions which limit the rights provided for in s20 (1) itself.

It is MISA-Zimbabwe’s strong submission that it is due to the absence of an explicit constitutional provision that upholds and guarantees and secures freedom of the press and access to information that has allowed for the enactment of repressive pieces of legislation such as Access to Information and Protection of Privacy Act (AIPPA), Public Order and Security Act (POSA) and Broadcasting Services Act (BSA), Criminal Law (Codification and Reform) Act and Interception of Communications Act, among others. These laws pose serious restrictions on free journalistic enterprise as well as the exercise of these rights by the public at large.

It is within this context that MISA-Zimbabwe seeks to substantiate on the need not only for an overhaul and revamp of media legislation in Zimbabwe, but for constitutional provisions that explicitly guarantee media freedom and the right to access to information. This is more so in the context of Section 20 of the Constitution and Section 100 N-P inserted by Constitutional Amendment No. 19.

This will be done by taking into cognisance the regional and international instruments and benchmarks on the right of freedom of expression, media freedom and access to information. MISA-Zimbabwe will therefore highlight and analyse the constitutional provisions in the following African countries; Malawi, South Africa and Mozambique and gauge how far they have gone in entrenching media freedom in comparison with the prevailing Zimbabwean situation.

1. The legal basis for the right of freedom of expression, media freedom and access to information

Generally, access to information refers to one’s ability and opportunity to obtain knowledge/information of any nature, whilst media freedom (press freedom) is the freedom of media practitioners (the press) to gather, publish and distribute information and ideas without restrictions and through various mediums. It also encompasses freedom from prior restraint and censorship.

The right to freedom of expression, media freedom and of access to information derive their authenticity from a number of international and regional instruments, which Zimbabwe has acceded to. These rights are clearly espoused in a manner that indicates the fundamental nature of these human rights which should be provided for and protected by all states in their domestic constitutions. It is from such regional and international instruments that certain benchmarks are set as well as the extent to which these rights should be protected.

Such provisions act as yardsticks determining the adequacy or inadequacy of the Zimbabwean constitutional provisions. The SADC Protocol on Culture, Information and Sport in its Article 20, stipulates that it is a state party’s prerogative to ensure that all necessary mechanisms are put in place for the freedom and independence of the media.

The Protocol enjoins all states to: take necessary measures to ensure the freedom and independence of the media.

On the other hand, the African Charter on Human and People’s Rights (ACHPR) one of the well-recognised and highly esteemed human rights document, stipulates in unequivocal terms, how member states including Zimbabwe do not have room for derogation from any of the obligations they acceded to under the Charter. The Charter together with the Banjul Declaration of Principles of Freedom of Expression in Africa sets more benchmarks regarding freedom of expression, access to information and media freedom wherein they provide as follows:

“Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.” (African Charter on Human and People’s Rights -article 9)

Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.  Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination.

Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society.

………… everyone has a right to access this information, subject only to clearly defined rules established by law.” (Banjul Declaration of Principles of Freedom of Expression in Africa articles 1, 2 & 4)

The above provisions clearly indicate the duty of the state to ensure that freedoms of information and access to information are guaranteed like is the case with other rights. They are also explicitly formulated in a manner which covers all aspects of freedom of expression, access to information and media freedom and it is along such benchmarks that Zimbabwe’s constitution should be aligned. Compliance with the above benchmarks is not only a sign of a country’s progress towards embracing democratic norms, values and best practices. It also demonstrates commitment to common and shared visions held by African states as well as to bodies such as the African Commission on Human and Peoples’ Rights (ACHPR).

1. The Zimbabwean Constitution s20 (1): No explicit guarantee of freedom of information and access to information.

One of the shortcomings of the Zimbabwean constitution is that it makes mention of the right to freedom of expression without explicitly stating and guaranteeing the right to access to information held by both public and private bodies as well as media freedom as stated in the aforementioned provisions of the African Charter on Human and People’s Rights and the Banjul Declaration of Principles of Freedom of Expression in Africa. These rights cannot be sufficiently covered or read into the provision on freedom of expression. The relevant provision of s20 (1) provides as follows:

“…no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.”

The South African, Malawian, Namibian and Mozambican constitutional provisions on freedom of expression indicate just how much the Zimbabwean provision is retrogressive by virtue of the absence of explicit provisions for media freedom and the right to access to information. The Malawian constitution is clearly crafted with each of these rights separately provided for and thus they can be independently claimed. Unlike is the case with other constitutions such as the Zimbabwean and Botswana ones, in Malawi freedom of opinion, freedom of expression, freedom of the press and access to information are treated as enforceable unique entities.

The concise provision of these rights is in line with the provisions of the African Charter and clearly demonstrates compliance and progress on that front.  This aspect is proven by the fact that these countries rarely find themselves hauled before bodies such as the African Commission on Human and People’s Rights for non-compliance as has been the case with Zimbabwe. This is so because of the great strides that they have taken in fulfilling their state obligations.

Please find below a glimpse into the Malawian, South African and Mozambican constitutional provisions on media freedom and the right to access to information.

Malawian constitutional provisions

Freedom of Opinion

34. Every person shall have the right to freedom of opinion, including the right to hold

opinions without interference to hold receive and impart opinions.

Freedom of expression

35. Every person shall have the right to freedom of expression.

Freedom of the press

36. The press shall have the right to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.

Access to information

37. Subject to any Act of Parliament, every person shall have the right of access to all

information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights.”

The South African constitution in s16 provides that everyone has the right to freedom of expression, which includes:

“Freedom of the press and other media; Freedom to receive and impart information or ideas; Freedom of artistic creativity; and Academic freedom and freedom of scientific research….”

The Mozambican constitution on the other hand in s74 provides as follows:

“All citizens shall have the right to freedom of expression and to freedom of the press as well as the right to information. Freedom of the press shall include in particular the freedom of journalistic expression and creativity, access to sources of information, protection of professional independence and confidentiality, and the right to publish newspapers and other publications.

1. 4. Constitution of Zimbabwe s20 (2): Limitations clause too widely drawn.

While it is common-cause that no right is absolute, any provision should still be reasonably necessary in a democratic space. There is also need to constantly check whether the limitations set against fundamental rights are not in serious breach of same. The constitution making process therefore offers immense opportunity to self-introspect and address the deficiencies in our supreme law more so as it pertains to media freedom, freedom of expression and access to information given the critical role played by the media in the domocratisation process.

The right to freedom of expression as enshrined in the constitution, however, is further curtailed by Section 20 (2) which stipulates the instances upon which the enjoyment of the right to freedom of expression may be restricted. These are overbroad and very widely drawn against what is permitted in many other countries’ constitutions and are not within the confines of regional and international standards.

1. 5. No safeguard against abuse/erroneous application of the limitations clause

The guideline that limitations should be “reasonably justifiable” is not an adequate safeguard against wide and arbitrary interpretations which may permit the infringement of the constitutionally guaranteed rights. Instead there should be a qualification that such limitations ought to be “necessary in a democratic society” as employed by other countries.  For example, in Namibia the limitations clause in part reads as follows:

“The fundamental freedoms referred to in Sub-Article (1) hereof shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said Sub-Article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”

1. Provisions on the Zimbabwe Media Commission are a perpetuation of statutory regulation

While the Declaration of Principles on Freedom of Expression in Africa clearly states that: effective self-regulation is the best system for promoting high standards in the media – s100 N-P of Constitutional Amendment No.19/ 2008 on the other hand, provides for the Zimbabwe Media Commission thus perpetuating undesirable statutory regulation. This deprives the media of its independence and autonomy. A constitutional provision to that effect is in a way buttressing the concept of statutory regulation. That position cannot be altered by other complementary pieces of legislation as they become unconstitutional should they provide for anything inconsistent with the constitution. Thus, such a provision should not be part of a democratic constitution.

1. Impact of the current constitution on media legislation

Owing to the inadequate protection and lack of explicit guarantees regarding media freedom and access to information in the current constitution, media legislation and policies have thus been scantly formulated in a manner that is detrimental to the enjoyment of all media freedoms as guaranteed in regional and international instruments. This inadequacy clearly has a negative cascading effect as evidenced by the promulgation of repressive pieces of legislation such as Access to Information and Protection of Privacy Act (AIPPA), Public Order and Security Act (POSA), Official Secrets Act (OSA), Interception of Communications Act (ICA) and the Criminal Law Codification and Reform Act. These provisions are undoubtedly repressive and deprive the media and the public of their right to access to information, freedom of expression, media freedom and free flow of information.

The absence of specific guarantees to the aforementioned rights also has a serious cross-cutting effect in the manner in which the right to freedom of expression is technically construed or interpreted by the judiciary. Interpretations regarding the right to press freedom or access to information either stretch or limit the meaning of section 20, to include such rights.

As long as the constitution has inadequate guarantees on the media, rights such as access to information and media freedom cannot be enjoyed and let alone be demanded. The need for a review of the constitutional provisions for purposes of replacing them with more democratic legislation is thus imperative.

1. Impact of media freedom on print and broadcast media in Zimbabwe

In crafting a new constitution for purposes of creating a free media environment due regard should also be taken into consideration pertaining to the broadcasting media. Freedom of the media on the broadcasting landscape means a free broadcasting environment in line with the provisions of Article 9 of the African Charter, Banjul Declaration on Principles of Freedom of Expression in Africa and African Charter on Broadcasting.  The declaration calls upon member states to ensure the transformation of national/state broadcasters such as the ZBC into true public service broadcasters, which are accountable to the people through their representatives in parliament.

Article VI of the aforementioned declaration lays down the benchmarks for a true public service broadcaster as follows:

     public broadcasters should be governed by a board which is protected against interference, particularly of a political or economic nature;

      the editorial independence of public service broadcasters should be guaranteed;

      public broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets;”

• public broadcasters should strive to ensure that their transmission system covers  the whole territory of the country; and

      the public service ambit of public broadcasters should be clearly defined and include an obligation to ensure that the public receive adequate, politically balanced information, particularly during election periods.

Article V which deals with private broadcasting states:

1. 1. States shall encourage a diverse, independent private broadcasting sector. A state monopoly over broadcasting is not compatible with the right to freedom of expression.
2. 2. The broadcast regulatory system shall encourage private and community broadcasting in accordance with the following principles.

there shall be equitable allocation of frequencies between private broadcasting uses, both commercial and community.

an independent regulatory body shall be responsible for issuing broadcasting licenses and for ensuring observance of licence conditions

licensing processes shall be fair and transparent, and shall be responsible for issuing broadcasting licenses and for ensuring observance of licence conditions

community broadcasting shall be promoted given its potential to broaden access by poor and rural communities to the airwaves.

Despite these clear and concise benchmarks which Zimbabwe has committed itself to, the government of Zimbabwe continues to maintain a monopolistic grip on the broadcasting media through the state –controlled broadcaster Zimbabwe Broadcasting Holdings (ZBH). ZBH is also devoid of any semblance of editorial independence whilst the regulatory board, the Broadcasting Authority of Zimbabwe (BAZ), is appointed in a manner that falls far short of the afore-mentioned benchmarks.

Regarding print media, the Declaration provides as follows:

• Any registration system for the print media shall not impose substantive restrictions on the right to freedom of expression.
• Any print media published by a public authority should be protected adequately against undue political interference.
• Efforts should be made to increase the scope of circulation of the print media, particularly to rural communities.
• Media owners and media professionals shall be encouraged to reach agreements to guarantee editorial independence and to prevent commercial considerations from unduly influencing media content.

Conclusion

In Zimbabwe’s case, the existing constitutional provisions on the media have negatively impacted on media/press freedom, access to information and freedom of expression and the proliferation of free, independent, diverse and pluralistic broadcasting, print and ICT media industry.

It is therefore MISA-Zimbabwe’s humble submissions and appeal that the foregoing principles, concerns and best practices be taken into serious consideration at this juncture in the history of Zimbabwe as the country recommits itself to writing a new democratic constitution.

MISA-Zimbabwe

84 McChlery Drive

Eastlea

Harare

Zimbabwe

Telefax: +263 4 776165/746838

Email: misa@misazim.co.zw

Website: www.misazim.co.zw