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Constitutional Commissions - Bill Watch 12/2010
March 28, 2010
Godfrey Majonga [chairperson], Nqobile Nyathi [deputy chairperson],
Lawton Hikwa, Miriam Madziwa, Chris Mhike, Millicent Mombeshora,
Henry Muradzikwa, Chris Mutsvangwa and Matthew Takaona.
for ZMC to be Sworn in: Neither the Constitution
nor any other law requires ZMC members to be sworn in before assuming
office, although the delay setting up ZMC was attributed to this.
meeting: The Commission met for the first time on Thursday
18th March. A short press statement by chairperson Godfrey Majonga
pledged “expeditious fulfilment” of the Commission’s
mandate, but did not go into detail on when it will tackle pending
applications for registration of media houses and journalists. The
following day Mr Majonga, his deputy and three other commissioners
had a meeting with the Prime Minister at which the Prime Minister
urged them to ensure the speedy registration of new media houses.
up ZMC: A long drawn-out process
The ZMC was
established by section 100N of the Constitution, enacted by Constitution
Amendment No. 19 in February 2009, which states it must have a chairperson
and eight other members appointed by the President from a list of
nominees submitted by Parliament’s Committee on Standing Rules
and Orders. The Committee interviewed candidates and submitted its
list of nominees in August 2009. The final list announced on 21st
December is considered a party-political compromise with its members’
sympathies balanced or with a slight weighting towards ZANU-PF.
The list was only made official in the Government Gazette of 19th
February specifying five-year terms effective from 11th February.
There was another delay caused by the Ministry’s Permanent
Secretary’s misapprehension that members had to be sworn in
by the President. The new ZMC finally had its first meeting on 18th
March, coinciding with President Zuma’s visit to Harare.
Under the Constitution
the ZMC’s functions are listed as:
- to uphold
and develop freedom of the press
- to promote
and enforce good practice and ethics in the press, print and electronic
media, and broadcasting
- to ensure
that the people of Zimbabwe have equitable and wide access to
- to ensure
the equitable use and development of all indigenous languages
spoken in Zimbabwe
- to exercise
any other functions that may be conferred or imposed on the Commission
by or under an Act of Parliament.
Ministers Exhortation to ZMC
On 19th March,
the day after the first ZMC meeting, the chairperson, deputy chairperson
and three of its members met the Prime Minister. The Minister [Shamu],
Deputy Minister [Timba] of Media, Information and Publicity, and
Permanent Secretary Charamba were also present. The Prime Minister
emphasised that the purpose of the ZMC is to ensure that freedom
of expression is advanced and the people are heard, and assured
the commissioners that:
- ZMC is an
independent Commission, not under the control of any organization
or individual, and has the responsibility to ensure that the media
environment in Zimbabwe reflects multiple voices and views
- the role
of the Ministry is to act as a conduit for the Commission to get
access to Treasury and Parliament
- ZMC should
engage its own Secretariat and if it is to use the Secretariat
of the defunct Media and Information Commission to expedite processing
of applications, then it may do so on the basis of new short term
contracts with them before ZMC determine their own structure and
- ZMC should
immediately respond to the expectations of Zimbabweans by ensuring
new media houses and newspapers are registered to operate as soon
Majonga responded by saying ZMC would “work all hours to meet
the enormous expectations of the people”. He also said that
one of the functions of ZMC is to advise government on which laws
and regulations should be reviewed in order to fulfill the ZMC’s
role of promoting freedom of expression.
Status under AIPPA
version of AIPPA available on request.]
The Access to
Information and Protection of Privacy Act [AIPPA] as amended January
2008 confers functions and powers on a “Zimbabwe Media Commission”.
But the Zimbabwe Media Commission which the amended AIPPA provided
for was a statutory commission, not a constitutional commission.
That statutory ZMC was to have replaced the notorious Media and
Information Commission [MIC], but members were never appointed to
this Commission. In fact the members of MIC apparently continued
in office as if MIC were still in existence, which, legally, it
was not. In February 2009 Constitution Amendment No. 19 provided
for the establishment of the present constitutional ZMC but there
was no amendment of AIPPA to make it refer to the new body. Hence
it can be argued that the new constitutional ZMC cannot exercise
any powers under AIPPA, because those powers could only have been
exercised by the never-appointed statutory ZMC.
there is a counter-argument: that Constitution
Amendment No. 19 must be taken to have “impliedly”
amended AIPPA, meaning that references to “the Commission”
in AIPPA must now be read as referring to the new constitutional
ZMC. It is obviously the counter-argument that has, understandably,
appealed to the Prime Minister, as it would enable the carrying
out of Article 19 of the GPA,
in which it was agreed the government would ensure the “immediate
processing by the appropriate authorities of all applications for
re-registration and registration” in terms of AIPPA. There
is however a snag to accepting this argument, the new ZMC would
have to apply AIPPA as it stands and some provisions are very restrictive,
which could make it difficult for would-be media houses and broadcasters
to fulfil them. Also, if the new commission took on the mantle of
the statutory commission referred to in AIPPA its decisions could
be challenged in court on the basis that it is not in fact the commission
referred to. A far better solution would be to amend AIPPA forthwith
to enable the new constitutional ZMC to fulfil its brief under the
Constitution listed above, in particular “to uphold and develop
freedom of the press”.
ZMC Operating under AIPPA Promote Press Freedom?
If the constitutional
ZMC chooses to exercise the powers of the statutory commission under
AIPPA, how far would it be able to go in upholding and developing
press diversity and freedom? Under the provisions of AIPPA:
- no one may
operate a mass media service [e.g. a newspaper or a broadcasting
station] in Zimbabwe unless it has been registered by the ZMC
[section 66(1)] and no mass media service or news agency may employ
a journalist unless he or she has been accredited by the ZMC [sections
78(4) & 79(7)]. The procedures for registration and accreditation
are fairly tortuous, and the ZMC has no power to simplify them.
- only citizens
are allowed to own mass media services, and non-citizens are not
even allowed to hold shares in mass media services [section 65].
Only the Minister may grant exemptions from this; the ZMC may
not do so. This provision makes it difficult, if not impossible,
for Zimbabwean mass media services to get foreign financing.
- only citizens
and permanent residents are allowed to be employed as journalists;
aliens and non-residents may be accredited by the ZMC for not
more than 60 days [sections 79(3) & (4)]. The ZMC does have
power to extend the period of accreditation of foreign journalists,
but only for “a specified number of days”, and even
local journalists are accredited for a year at a time [section
and owners of mass media services who publish false information
can be imprisoned for up to two years, in the case of journalists
[section 80] or three years in the case of mass media owners [section
64]. The decision to prosecute in any particular case rests with
the police and the Attorney-General, not with the ZMC.
cannot be altered by the ZMC, because they are set out in the Act.
So if the constitutional ZMC decides to function under AIPPA, and
even if it tries to carry out its functions with the best will in
the world, there is little it can do to liberate the press in Zimbabwe.
The only way to achieve a free, diverse press in Zimbabwe is to
repeal the restrictive provisions of AIPPA.
The 2010 Budget
allocates an amount of US$ 47 000 for ZMC operations for the whole
of 2010, under Vote 22: Ministry of Media, Information and Publicity.
No additional funds for ZMC are listed under the Vote 7: Vote of
Credit [when the Minister of Finance presented the 2010 Estimates
and Budget proposals he explained that he envisaged the Vote of
Credit being funded by donors, with other Votes being funded by
revenue]. So ZMC will not have much money at its disposal.
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