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Supreme Court Judgement No S.C.136\02 in the Association of Independent Journalists v the Minister of State for Information and Publicity in the President's Office
February 24, 2004

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Judgment No S.C.136\02
Const. Application No 252\02

(1) Association of Independent Journalists (2) Abel Ticharwa Mutsakani (3) Vincent Kahiya
v
(1) The Minister of State for Information and Publicity in the President's Office (2) Media and Information Commission (3) The Attorney-General Of Zimbabwe

Supreme Court of Zimbabwe
Chidyausiku CJ, Sandura JA, Cheda JA, Ziyambi JA& Malaba JA
Harare November 21, 2002 & February 5, 2004

S. Moyo, with him M.K. Chikuni, for the applicants
J. Tomana, for the first respondent
No appearance for the second respondent
N. Mutsonziwa, for the third respondent

CHIDYAUSIKU CJ: The first applicant in this case is the Independent Journalists Association of Zimbabwe, a body corporate with a capacity to sue and be sued in its own name with a current membership of sixty journalists. The second applicant is a News Editor employed by Financial Gazette (Private) Limited. The third applicant is a News Editor employed as such by Zimind Publishers (Private) Limited.

The first respondent is the Minister of State for Information and Publicity in the President's Office who is responsible for the administration of the Access to Information and Protection of Privacy Act [Chapter 10:27], hereinafter referred to as "the Act". The second respondent is the Media and Information Commission, a body corporate established in terms of s 38 of the Act, hereinafter referred to as "the Commission." The third respondent is the Attorney-General of Zimbabwe who is cited in terms of s 24 of the Constitution of Zimbabwe.

The applicants made this application in terms of s 24 of the Constitution which entitles an applicant to approach this Court, sitting as a Constitutional Court, on an allegation that the Declaration of Rights in the Constitution of Zimbabwe has been, is being, or is likely to be contravened in relation to him or it.

In particular, the applicants alleged that sections 79, 80, 83 and 85 of the Act violate the rights of the first applicant's members and those of the second and third applicants under s 20(1) of the Constitution of Zimbabwe, that is to say, the right to receive and impart information and ideas without hindrance or interference. The applicants further alleged that s 79 is unconstitutional as it contravenes s 18(9) of the Constitution in that it deprives them of the right to be heard before a decision affecting their rights is made. The relief sought is that s 79, 80, 83 and 85 be declared unconstitutional, therefore, null and void and of no effect.

The respondents contend otherwise and argue that the above provisions are intra vires the Constitution and, therefore, valid and of full force and effect.

Section 79 of the Act provides for the accreditation of journalists while s 80 criminalises certain abuses of journalistic privileges. Section 83 outlaws the practice of journalism without accreditation. Section 85 provides for the development of a Code of Conduct by the Commission in consultation with interested parties. That section also confers on the Commission disciplinary powers and provides guidelines on sanctions for misconduct. The above four sections are the only sections of the Act that the applicants seek to have set aside as unconstitutional.

A number of issues raised in this case were also raised in the case of Capital Radio v The Broadcasting Authority of Zimbabwe and Ors¹. Judgment in that matter was recently handed down and some of the issues herein were determined therein. There is no need for me to deal in any detail with the issues raised in this case that were determined in that judgment. Thus the Court concluded in the Capital Radio case, supra, that freedom of expression as enshrined in s 20 of the Constitution includes freedom of the press. The respondent raises the same issue in this case. I am satisfied that s 20 of the Constitution subsumes freedom of the press. I come to that conclusion on the same reasoning that is set out in the Capital Radio case, supra.

This Court also concluded in the Capital Radio case, supra, that it was constitutionally permissible to enact laws that regulate the licensing and the functioning of the media or press but such enactments had to be within the limits that are constitutionally permissible. In arriving at that conclusion the Court relied on a number of authorities². The authorities relied on in arriving at the above conclusion specifically relate to the electronic media as opposed to the print media. While I accept that the constitutionality of a particular impugned enactment differs from case to case it has to pass the laid down test³ I see no basis in principle for holding that it is constitutionally permissible to regulate by statute the electronic media but not the print media. The constitutionality of each statutory enactment depends on the wording and effect of the particular enactment. No doubt the question of whether the impugned provision regulates the electronic media or the print media is a very relevant factor in the determination of the constitutionality or otherwise of the particular impugned enactment. In this regard, I do not accept Mr Moyo's submission that the practice of journalism is special and admits no statutory regulation and that only self regulation is constitutional.

In arguing that the regulation of journalism by statute is unconstitutional and that the only regulation of journalism that is constitutional is self regulation, Mr Moyo relied on the Advisory Opinion of the Inter-American Court of Human Rights⁴. SANDURA JA in his judgment has placed reliance on that case for certain of his conclusions. I wish to comment in some detail on the Opinion.

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1 Judgment No SC-128-02
2 Athukorale & Ors v Attorney-General of Sri Lanka (1997) 2 BHRC 610; Groppera Radio AG v Switzerland 12 EHRR 321
3 Nyambirayi v NSSA & Anor 1995 (2) ZLR 1 (S)
4 Advisory Opinion, OC-5/85, Series A No. 5

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