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Briefing Note on Freedom of Expression and Current Legislative Developments in Zimbabwe
ARTICLE 19, Global Campaign for Free Expression
January 11, 2002

The government of Zimbabwe has recently introduced two pieces of legislation, the Access to Information and Protection of Privacy Bill, currently before Parliament and the Public Order and Security Act, passed yesterday, which severely restrict freedom of expression and of the media in the run-up to presidential elections planned for March this year.

As the name of the Information Bill implies, it does formally establish a right to access information held by public bodies. However, this right is so limited by exclusions and exceptions that its practical impact is likely to be extremely limited. In any case, most provisions in the bill have nothing to do with access to information but rather impose harsh restrictions on media freedom, giving analysts the sense that the information provisions have been included simply to draw attention away from the real import of the Bill.

Key problems with the two laws are as follows:

• excessive restrictions are imposed on the content of what the media may publish or broadcast;
• all media outlets and any business disseminating media products or even video or audio recordings must obtain a registration certificate from a government controlled body;
• all individual journalists must also obtain accreditation from the same body; and
• all foreign ownership of the media is prohibited and non-citizens are prohibited from working as journalists; and
• the authorities are given excessive powers to prevent demonstrations.

ARTICLE 19 calls on the Zimbabwean Parliament to reject these laws and calls on the government to stop seeking to control the media and to prevent independent media reporting. We also call on the international community to take effective measures to oppose these developments, including by isolating the government.

The Media and Information Commission

Pursuant to the Information Bill, the Media and Information Commission is given a wide range of powers over the media, including in relation to registration of the media, accreditation of journalists and monitoring media content. The Commission is firmly under the control of the Minister. The Minister appoints all members of the Board, after consultation with the President. He or she also sets the term of office, as well as other terms and conditions of office, including allowances, and may remove a member on a number of grounds, some of which are highly subjective (e.g. where the member has conducted him- or herself in a manner which "renders him unsuitable"). The Minister also appoints both the chair and the vice-chair of the Board.

It is now well-established that bodies which exercise direct powers in relation to the media must be protected against political interference (i.e. they must be independent). The reasons for this are obvious; otherwise there is a very real risk that media freedom will be undermined for political reasons, to the detriment of the public’s right to know and democracy. The risk of political interference with the media is far from theoretical in Zimbabwe, where private publications have been subjected to an active campaign of harassment for some time now and where the public media are under strict government control and operate largely as mouthpieces of government.

Media Registration

The Information Bill requires everyone who disseminates mass media products in any way, including by selling or distributing them, to obtain a registration certificate from the Commission. Mass media products are defined to include any "electronically transmitted material", all audio and video recorded material and any publication with a regular name. Registration is for a period of two years, renewable upon further application. Breach of these rules can lead to imprisonment for up to 2 years. In addition, the Minister may authorise the seizure of media products and equipment, where he or she "has reasonable grounds to believe" that a service is operating in breach of the Act. Non-citizens, including any company with even one non-citizen member, may not own mass media outlets.

Technical registration requirements for the media are not, per se, a breach of the guarantee of freedom of expression but they may be if they are subject to political interference or if they are too broad in application. This system, overseen by the Commission, is clearly potentially subject to political interference. The registration requirement is massively overbroad, covering all publications, no matter how small or irregular, and all forms of electronic communication, apparently including the Internet. Any store renting or selling video or audio cassettes, or even newspapers, would be required to register. These problems are exacerbated by the very short registration period, which means that political interference can be brought to bear at regular intervals, and the harsh sanctions for breach. The power of the Minster to order seizure of material and equipment is clearly open to abuse.

Although many countries impose upper limits on foreign ownership in the broadcast sector, a total ban, extending to the print sector, is clearly unjustifiable. A total ban not only restricts the right of foreigners to express themselves but also deprives the media sector of much needed foreign capital, expertise and programme content, thereby undermining the right of Zimbabweans to access a wide range of information and ideas through the media.

Accreditation of Journalists

Pursuant to the Information Bill, everyone who undertakes any journalistic activity must obtain accreditation from the Commission, on terms set by the Minister. Accreditation is dependent on the individual possessing the "prescribed qualifications". The Bill sets out comprehensive bans on working as a journalist in the absence of such accreditation and provides for sanctions, including suspension and prosecution, for breach. Accreditation lasts for only one year. Foreigners may not be accredited. A foreign media outlet may establish a representative office after obtaining the permission of the Minister, but only locally accredited, i.e. Zimbabwean, journalists may work as foreign correspondents.

These restrictions on who may practise journalism, particularly the need for prescribed qualifications, are a clear breach of the guarantee of freedom of expression. Everyone has the right to use the media to express themselves. The possibility of political interference, coupled with the very short accreditation period, exacerbates this problem, as does the very broad definition of a journalist. The breadth of definition makes it extremely onerous for working media outlets to comply with these requirements. The total ban on foreign journalists is clearly unjustifiable as a restriction on freedom of expression.

Content Restrictions

Both the Information Bill and the Public Order Act impose unjustifiable restrictions on media content. Both prohibit a wide range of statements about the President, a matter of some importance given the upcoming Presidential election. The Information Bill makes "denigrating, bringing into hatred or contempt or ridicule or to excite disaffection against the President" an offence, punishable by up to two years’ imprisonment, while the Public Order Act refers to "engendering feelings of hostility towards" or "causing hatred, contempt or ridicule of" the President, punishable by up to one year imprisonment. These restrictions clearly go far beyond justifiable restrictions on expression to protect reputations and make it very difficult to engage in legitimate criticism of the President.

The Information Bill makes it an offence, punishable by up to two years’ imprisonment, for a journalist to spread "rumours, falsehoods" or to cause "alarm and despondency". The illegitimacy of this provision is highlighted by the fact that a false news provision, narrower in scope than that found in the Information Bill, was struck down by the Supreme Court of Zimbabwe in 2000. The Public Order Act also contains a false news provision, punishable by up to five years’ imprisonment. These provisions are of particular concern given recent statements by the head of the armed forces threatening anyone making "false" statements about the army. The statement referred explicitly to the Democratic Republic of Congo, where most observers believe that the army is engaged in illegal profit-making.

Both Bills contain wide prohibitions based on the law of sedition, including provisions making it a crime to engender feelings of hostility towards police officers or causing disaffection in the police or armed forces, all potentially punishable by imprisonment. Sedition law has effectively fallen into disuse in most democracies and it has formally been struck down or abolished in a number of jurisdictions.

Of equal concern is role of the Commission in establishing a code of conduct for journalists. Although the code has not, of course, been produced, the lack of independence of the Commission, and the harsh sanctions for breach, including suspension, give cause for concern.

Demonstrations

The Public Order Act imposes a number of restrictions on demonstrations. In addition to broad powers over the timing and direction of demonstrations, the police may make an order prohibiting any demonstration in a given area for up to three months.

Restrictions on freedom of expression and association for purposes of public order may be legitimate, but only if there is a close causal nexus between the expression and the risk of public disorder. Such a nexus can never exist for a whole region and over a long period of time, such as three months. Under this provision, the police could, for example, ban all demonstrations in Harare from now until after the elections.

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