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Constitutional Commissions - Bill Watch 12/2010
Veritas
March 28, 2010

Zimbabwe Media Commission

Members: Godfrey Majonga [chairperson], Nqobile Nyathi [deputy chairperson], Lawton Hikwa, Miriam Madziwa, Chris Mhike, Millicent Mombeshora, Henry Muradzikwa, Chris Mutsvangwa and Matthew Takaona.

No requirement 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.

First 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.

Setting 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.

ZMC’s Constitutional Responsibilities

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 information
  • 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.

Prime 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 staffing
  • ZMC should immediately respond to the expectations of Zimbabweans by ensuring new media houses and newspapers are registered to operate as soon as possible

ZMC chairperson 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.

ZMC’s Status under AIPPA

[Electronic 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.

But 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”.

Would 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 84].
  • journalists 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.

These provisions 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.

Funding of ZMC

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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