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Access to Information and Protection of Privacy Bill
November 30, 2001

Contents

Memorandum

[This memorandum is not part of the proposed Act but is published with the Bill.]

Recognising the critical role of information in a constitutional democracy and the fact that information can be used usefully or harmfully, the purpose of this Bill is to give effect to freedom of expression enshrined in the Constitution of Zimbabwe.

The Bill provides for the type of information that is accessible and that which is not accessible to the public. It also provides for the protection of privacy.

The underlying principles of this Bill are as follows—

 

(a) Giving members of the public access to records and information held by public bodies

The Bill allows members of the public to receive information without interference.

This is necessary in a democracy if we are to have an informed citizenry. Members of the public are entitled to check on the accuracy of information held or disseminated by public bodies as this will help improve transparency in the decision-making processes of public bodies.

 

(b) Making public bodies accountable to members of the public

It is necessary to make public bodies accountable to members of the public because information is an integral part of the democratic process and is necessary for public accountability. In Zimbabwe, public bodies have been accused of being opaque yet their activities affect the public in that they have a direct implication on national defence, security, public health, safety and the economic well-being of citizens and their right to privacy. So citizens should have the right of access to information held by these public bodies. In the same vein, it is important to ensure that public bodies that disseminate information do not intrude on the privacy of individuals or compromise national defence or security.

 

(c) Correction of personal information that is in the custody of a public body

Every person should have a right to request the correction of personal information that is in the custody or control of a public body if such information does not reflect the truth or the correct position. This is necessary as the continued misrepresentation of such information can result in prejudice to that person. For example if a public body holds a record or disseminates information which says an individual has a criminal record when that is not the case, that will have serious consequences on a person’s rights. So it is imperative for such a record or information to be corrected so that it reflects the true position. It is also important that public bodies have accurate records of an individual as inaccurate information can seriously affect a person’s reputation and livelihood.

 

(d) Protection of personal privacy

There is need for legislation that provides for the protection of personal privacy because there is a clear and present collapse of both professional and ethical standards in the media industry and this has resulted in the wanton invasion of personal privacies. This can be evidenced by the increase in the number of defamation cases that members of the public have brought against the media.

Of late there have been cases of intrusion of personal privacy by the media through invasion of personal correspondence, private family affairs and trespassing by way of taking illegal photographs of persons or their properties for no apparent reasons of public interest or journalistic purposes.

Current legislation was not designed to cope with the kind of media invasion that we are witnessing today, and where there is provision, the penalties provided are not deterrent enough because they were not meant to deal with the type of media invasion that we are experiencing today.

 

(e) Regulation of the mass media

Media, like any other public bodies, should be accountable to society. They are the vehicles of communication, connecting centres of messages and receivers of those messages and so they have to be judged on how well and faithfully they convey those messages to members of the public without abridgement, distortions or in any way interfering with the right to freedom of expression given to members of the public by our Constitution.

Media are dealing with a public good, that is disseminating information that has a direct bearing on a citizen’s capacity to play a meaningful role in society. There are various levels of power and authority within the media, thereby presenting the risk of arbitrary use to the detriment of the right to receive information. The predominance of the commercial media has created a new situation where profit or political agenda is put before professional and ethical service to the detriment of members of the public.

 

(f) Establishment of the Media and Information commission

This Bill also establishes a Media and Information Commission which will regulate the operations of the media industry in Zimbabwe. All along the media industry has been operating in an unstructured fashion which has led to ethical and professional lapses on the part of some of the media practitioners. The lacuna has also enabled some foreign created, foreign funded and foreign driven groups to take advantage by purporting to speak for and on behalf of Zimbabweans. Thus has opened wide and potentially harmful opportunities to malicious interests that could prejudice national defence and security. The media industry has failed to voluntarily structure itself as has been evidenced by the absence of a voluntary media council dramatised by the polarisation of the media. Further, there has been a discernible decline of public faith in the media industry as has been witnessed by complaints, open hostility and attacks on the media by some offended sections of the public who have regrettably taken the law unto their own hands. Thus, the need for a statutory remedy is clear and present.

Currently there is no institution which minds the growth of the media industry by way of investment and training skills beyond what individual publishers are doing and can do.

The media industry has been polarised to such an extent that it is now impossible for the industry to regulate itself through a meaningful voluntary body. There is so much mutual ill feeling amongst the players in the industry themselves that they have been unable to come together and form an organisation to regulate their activities, hence the need for a statutory body to perform this function.

Where an individual has been wronged by the media, the costs of litigation for redress are beyond the reach of the majority of our citizens such that there is a need for provision to be made for an affordable and reliable recourse to members of the public. The Media and Information Commission will he able to provide such kind of recourse.

In more detail the individual provisions of the Bill will provide as follows—

 

PART I

This Part deals with preliminary matters. Clause 1 sets out the Bill’s short title and Clause 2 defines the terms that are used throughout the Bill.

 

PART II

This Part provides for access to information. Every person shall have a right of access to any record, including a record containing personal information that is in the custody or under the control of a public body, though certain information will be exempt from disclosure. Any person requiring information contained in a record held by a public body will make the request in writing and the head of the respective public body shall take every reasonable step to assist the applicant.

 

PART III

This Part protects certain type of information like for example, information pertaining to Cabinet deliberations from being disclosed to any person who has no right to have access to such information. It lists the information that is protected from disclosure. Of interest to note in this Part is the fact that the head of a public body is not allowed to disclose information that will result in the invasion of a third party’s personal privacy.

 

PART IV

This Part deals with information pertaining to third parties. A head of a public body is obliged, under this Part to notify a third party where an applicant has requested to be granted access to a record or information pertaining to the third party.

This Part also allows a head of a public body to disclose information that is deemed to be in the public interest. Such information includes for example information about the risk of significant harm to the health or safety of members of the public.

 

PART V

This Part sets out how personal information is to he collected, protected and retained.

 

PART VI

This Part deals with how public bodies will use and disclose personal information that is in their custody or under their control. This Part also lists the instances when personal information can be disclosed.

 

PART VII

This Part establishes the Media and Information Commission. The Commission will be an independent body that will deal with members of the public’s complaints against the media; deal with problems within the media as well as to ensure that every Zimbabwean has access to information. The operations of the Commission will be managed and controlled by a Board that will be chaired by an executive chairman. The usual conditions that apply to the appointment and tenure of office of members of statutory boards will apply to members of this Board.

 

PART VIII

This Part establishes a Media and Information Fund whose main object will be to assist in the training of journalists as well as promoting research and development. Every mass media house shall contribute a prescribed amount annually towards this Fund.

 

PART IX

This Part provides the Commission with further powers. The Commission is granted power to conduct an investigation, inquiry or hearing. This Part also protects a statement made, information supplied or record produced by a person during an investigation from being subject to defamation charges.

The Commission and members of its staff will not be allowed to disclose any information obtained during the performance of their duties

The Commission and members of staff are protected from liability for anything done or said as a result of the bona fide exercise or performance of their duties or powers.

 

PART X

This Part deals with reviews by the Commission. A person who makes a request to a head of a public body for access to a record or information held by that public body or for a request for correction of personal information may request the Commission to review any decision or act of the head of that public body that relates to that request. It also sets out the procedure to be followed when seeking such a review. The request for a review shall be made in writing and within 30 days of the date of the decision. The Commission shall after receiving a request for review, also give a copy of the request to the head of the respective public body. The Committee will then hold an enquiry and make an order as to its findings and the head of the public body shall, if Commission orders in favour of the applicant, be obliged to comply with the order unless an appeal against the order is lodged.

A person aggrieved by any decision of the Commission shall have a right to appeal to the Administrative Court.

 

PART XI

This Part regulates the activities of all mass media in the country and also deals with the accreditation of journalists. It will apply to all mass media in Zimbabwe and foreign mass media that disseminate mass media products in Zimbabwe.

Freedom of mass communication is declared in this Part though such freedom will have to be enjoyed within some stipulated guidelines which include disseminating true, useful and unbiased information to members of the public.

To entrench the freedom of mass communication, there will be no censorship of mass information or the suppression of the dissemination of information.

This Part also lists the instances which amount to abuse of freedom of mass communication.

Because of the sensitivity of disseminating mass media, only Zimbabwean citizens, companies, associations, state agencies or bodies may own or co-own mass media and every such mass media shall register with the Media and Information Commission and get a certificate of registration that will be valid for a period of two years and may be renewed thereafter. This part also exempts certain mass media from undergoing the process of registration.

A person who wishes to carry on or operate a news agency will have to register with the Commission. To ensure that there will be responsibility for articles published in any mass media, a product will only be disseminated after the editor-in-chief has given the go-ahead. This will ensure quality control.

 

PART XII

This Part deals with the rights and privileges of a journalist. No journalist will be allowed to practise in Zimbabwe without being accredited by the Commission. Accreditation will ensure that the Commission is able to know the number of journalists practising or covering stories in Zimbabwe at any given time.

This Part also provides for the Commission and the journalists to come up with a code of ethics to regulate the professional behaviour of journalists. Every journalist practising in Zimbabwe shall register with the Commission and the Commission shall keep a roll of all journalists practising in Zimbabwe. After registering, the Commission will issue the journalist with a certificate of registration that will be valid for one year and may be renewed thereafter.

Any member of the public aggrieved by the professional conduct of a journalist may appeal to the Commission.

 

PART XIII

This Part deals with general provisions. The head of a public body may delegate to any person any of his duties, powers or functions.

The Board shall submit to the Minister an annual report on the matters dealt with by the Commission.

This Part also protects a head of a public body and his officials from legal suits as well as makes provision for the payment of a fee for services provided by a public body in terms of this Act.

Clause 118 allows the Minister to make regulations to give effect to some of the provisions of the Act.

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