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Analysis
of the implications of the proposed amendments to AIPPA
Crisis in Zimbabwe
Coalition
June 25, 2004
The government intends
to amend the Access to Information and Protection of Privacy Act (AIPPA)
in a bid to further cripple press freedom and gag the private media. A
brief background will assist to show the history of the diabolic law.
The idea of having
the repressive and draconian AIPPA started when Professor Jonathan Moyo
was appointed to the Constitutional Commission of Zimbabwe (CCZ) in 1999
whose draft constitution was rejected in a national referendum. Moyo was
the spokesperson of the CCZ.
It was during this
period that Moyo realised the significance of the private media in shaping
public opinion and in assisting the citizenry to make informed decisions
about critical issues in the administration of their country.
Following the constitutional
debacle, Moyo and other Zanu PF mandarins were not happy with the outcome
of the constitutional referendum and that is when Moyo who used to be
a darling of the private press because of his vitriolic attack of the
Zanu PF government started talking about regulating the media. After Moyo
was appointed into Cabinet in July 2000, he started talking about having
a media law because there was no specific act regulating the media. The
whole of 2001 AIPPA was being discussed with other interested parties
but unfortunately Moyo did not take into account submissions made to him.
At the end of 2001,
the AIPPA Bill was hotly debated in Parliament and the legal committee
led by veteran nationalist and lawyer ,Eddison Zvobgo ruled that most
provisions of the Bill were unconstitutional but using Zanu PF’s parliamentary
majority, the Bill was passed and President Mugabe signed it into law
in February 2002 on the eve of the disputed presidential election of March
2002.
At the heart of AIPPA
is the desire by the state to stifle and ban privately owned newspapers
that are critical of Zanu PF. Since its enactment three newspapers have
been banned. The Daily News and The Daily News On Sunday
, have already fallen victim to this monstrous legislation. The papers
were banned through the Supreme Court in September 2003 while The Tribune
was closed last month.
So far about 70 journalists
have lost their jobs while more than 300 other workers in the media industry
have faced the same fate. Several journalists in the private media have
been arrested for violating the Act and 50 journalists from Associated
Newspapers of Zimbabwe await possible trial for operating without licenses.
Fundamentally AIPPA
is designed to encroach on the citizens’ freedom of expression. The international
community has realised this and Zimbabwe is now ranked third in the world
for violating press freedom.
The implications
of the proposed amendments to AIPPA
The proposed
amendments to the Access to Information and Protection to Sections 40
and 83 poses a greater danger to press freedom and democratic principles
as they violate the Constitution of Zimbabwe, the Universal Declaration
of Human Rights and the African Charter on Human and People‘s Rights.
According to an Extraordinary
Government Gazette of Friday 18 June 2004, the government through the
Department of Information and Publicity in the Office of the President
and Cabinet wish to introduce the amendment Bill in Parliament for debate.
The Bill seeks to
amend Section 40 of the Act, which requires that some of the members of
the Media and Information Commission (MIC) be appointed from nominees
of an association of journalists and an association of media houses. The
department said that since an association of media houses does not exit,
the Bill proposes that nominations should be received from either or both
of such types of association.
The proposal is absurd
in that it seeks to deny the existence of the Advertising Media Association
(ADMA), a body that represents media houses in the country. What Moyo
seeks to achieve is to exclude publishers from taking part in matters
that affect them. For instance, if MIC is to make a decision to penalise
an errant newspaper, it should have representatives from publishers and
journalists for it to be binding.
Retired Administrative
Court President Michael Majuru in October 20003 ruled that when MIC refused
registration to The Daily News and The Daily News On Sunday it violated
Section 40 because MIC was improperly constituted. There was no representative
of media houses.
What is also interesting
is that Moyo seeks to sanitise Section 40 before the Supreme Court ruling
in the case involving the government and Associated Newspapers of Zimbabwe
(ANZ) after MIC refused registration of the privately owned company’s
two papers.
It was argued that
MIC did not follow the provisions of Section 40 when it denied ANZ registration
and it did not have a representative of media houses when it refused to
register The Daily News and The Daily News On Sunday. It seems to be an
admission on the part of Moyo that the MIC did not comply with the provisions
of Section 40 hence the proposed amendments.
Section 83 of the
Act, which prohibits unaccredited or suspended journalists from practising,
will be amended to provide a penalty which is presently absent. The Bill
proposes that persons who contravene the section will be guilty of an
offence and liable to a fine or imprisonment not exceeding two years or
both.
The Constitution of
Zimbabwe, which is the supreme law of the land, provides in Section 20
of the Bill of Rights for the freedom of expression and states that ‘’Except
with his own consent or by way of parental discipline, 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.’’
From these constitutional
provisions, it is evident that freedom of expression is one of the elementary
rights, which must be guarded jealously by all individuals in society.
Other legal scholars
have argued that freedom of expression is the cornerstone of any democratic
society. Moyo is however of a different persuasion.
The Minister has successfully
made a consistent attack on such freedoms and in the end criminalized
the journalism profession. By banning three private newspapers in the
space of one year, Moyo has gone further than what the colonial regime
of Ian Smith did. He has destroyed our civil liberties with impunity.
He has also defied
Article 19 of the Universal Declaration of Human Rights that states, ‘‘everyone
has the right to freedom of expression; this right includes freedom to
hold opinions without interference and to seek to, receive and impart
information and ideas through any media and regardless of frontiers.’’
Even though not binding
legal experts have argued that the provisions have been considered to
be an authoritative guide to human rights and constitute general principles
of law and are widely held as having acquired legal force as customary
international law.
The government of
Zimbabwe risks being an international outlaw if it fails to abide by such
world standards of modern democratic principles of governance. It is also
interesting to note that the Zimbabwe government further disregards the
African Charter on Human and People’s Rights, which it ratified in 1986.
Article 19 (1) of the Charter states, ‘‘every individual shall have the
right to receive information.’’
The African Commission
on Human and People’s Rights meeting in its 32nd Ordinary session
in 2002 adopted the Declaration of Principles on Freedom of Expression
(The Declaration), the preamble of which affirms ‘’the fundamental importance
of the freedom of expression as an individual human right, as a cornerstone
of democracy and as a means of ensuring respect for human rights and freedoms’’
in Africa.
The Declaration recognises
the key role the media and other means of communication play in ‘’ensuring
full respect for freedom of expression, in promoting the free flow of
information and ideas, in assisting people to make informed decisions
and in facilitating and strengthening democracy.’’
The envisaged amendments
like other legal instruments such as POSA are at variance with the above
African norms on press freedom, human rights and democracy. Contrary to
assertions by the government that it would not be averse to advice by
fellow African governments, it is busy violating the continent’s provision
on a free society.
It is now abundantly
clear that the government would not listen to wise counsel even from its
African colleagues in its bid to hang on to power using unconstitutional
and archaic laws.
Despite promises to
South African President Thabo Mbeki that the government would repeal bad
laws such as AIPPA and POSA during the build up to the Commonwealth Summit
in Abuja last year, President Robert Mugabe is determined to make the
country an unequivocal pariah state and his rule dictatorial in the extreme.
History tells us that there is no dictatorship that celebrates free press,
diversity of opinions, an independent judiciary and the rule of law. The
government has an obligation to prove otherwise.
It should be made
abundantly clear that the government particularly Moyo’s department continues
to make unconstitutional laws because of their confidence in the current
Supreme Court bench whose judgements of late have continued to be questioned
by senior lawyers in the country.
It has been argued
that instead of upholding the citizens’ fundamental rights that are under
siege by the executive, the country’s highest court is collaborating with
the government to erode such rights.
The argument seems
plausible because the proposed AIPPA amendments followed a Supreme Court
ruling in a matter in which the Independent Journalists Association of
Zimbabwe (IJAZ) lost its case against the constitutionality of some sections
of AIPPA.
In February, the Supreme
Court ruled that it was criminal for any journalist to operate without
a license from the government run MIC. As a result The Daily News and
The Daily News On Sunday stopped operating because journalists from the
two papers were not registered by MIC. Attempts to get the licences failed
after MIC chairman Tafataona Mahoso said he could not register reporters
from an ‘’illegitimate’’ employer.
Visit the Crisis in Zimbabwe
Coalition fact
sheet
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