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Analysis of the Broadcasting Services Amendment Bill 2002 & ZBC Commercialisation Act 2001
Media Institute of Southern Africa - Zimbabwe (MISA-Zimbabwe)
May 2002

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Introduction & overview
Until the latter part of 2000, broadcasting in Zimbabwe was regulated by the Broadcasting Act [Chapter 12:01]. By virtue of s 27 of that Act, the Zimbabwe Broadcasting Corporation held a monopoly over the provision of broadcasting services. The constitutionality of this dispensation was subject to successful challenge in Capital Radio (Pvt) Ltd v Minister of Information (1) 2000 (2) ZLR 243 (S) in which matter the Supreme Court went on to hold that other legislation¹ prohibiting the possession or operation of radio stations by persons other than the Zimbabwe Broadcasting Corporation was equally unconstitutional. The litigation in this regard was relatively uncomplicated, as the Respondent Minister had in fact conceded that the legislation was unconstitutional.

The offending provisions having been declared invalid, there appeared a lacuna in the law: the impediment to private participation in the broadcasting industry had been removed, but there was yet to be established any regulatory framework to govern their operations. In the Capital Radio case, the Respondent Minister was found to have been somewhat dilatory in causing the establishment of a regulatory authority. Four months had passed from the time of the making of the Minister's concession that the challenged provisions were unconstitutional up to the hearing of the matter and yet he had not done that which was required of him in the light of the concession. Agreement could not be reached as to a time limit for the establishment of the necessary regulatory framework and it followed that in the absence of this framework, Capital Radio (or anyone else for that matter) was at liberty to establish and run a broadcasting service. Armed with an order to that effect from the highest court in the land, Capital Radio proceeded to do just that. Learning of this development, the Respondent Minister was quoted in the media describing Capital Radio as a "pirate station" and warning that he would soon take "appropriate action".

Fearing that the Minister may interfere with or confiscate its equipment, Capital Radio urgently sought an order interdicting such action. The application was laid before a judge in chambers who granted that relief as armed agents of the State maintained a blockade of the station's premises through the night of 4 - 5 October 2000.² In defiance of the order, police details broke down the door and seized the equipment.³ The judge who dealt with the urgent application, Chatikobo J, was in time to come described by the Minister as a "night judge" dispensing "night justice" in a "night court". This was said amid a flurry of remarks about the "abuse" of the Constitution by a minority.

Against this background there appeared as a supplement to a Government Gazette Extraordinary dated 4 October 2000 the Presidential Powers (Temporary Measures) (Broadcasting) Regulations, 2000.⁴ These Regulations made provision for the establishment of the Broadcasting Authority of Zimbabwe, licensing of operators in the industry and the regulation of operations generally. By virtue of the provisions of the enabling statute, these regulations had a life span of six months from the date of promulgation,⁵ but their expiry was preceded by the promulgation of the Broadcasting Services Act [Chapter 12:06].⁶ The operation of this Act was backdated to the date of commencement of the Regulations, and indeed many of the provisions of the Regulations were retained in the Act. Accordingly, activities in connection with broadcasting in Zimbabwe on and after 4 October 2000 are governed by the Broadcasting Services Act.

The Act provides for the establishment of a Broadcasting Authority of Zimbabwe composed of persons appointed by the Minister of State for Information and Publicity in the President's Office, subject to the direction of the President. The Act constitutes the Minister as the licensing authority of broadcasting services and sets out the different classes of licence and the requirements to be satisfied by applicants. Provision is made for the development of codes of conduct for broadcasting services and limitations on the ownership of broadcasters and other mass media are set out. The Act also creates a broadcasting fund and provides for certain general matters such as the regulatory powers of the Minister. Rather significantly, the Act amends the Broadcasting Act [Chapter 12:01] by amending its title to the Zimbabwe Broadcasting Corporation Act [Chapter 12:01] and by amending s 27 to confirm the breaking of Zimbabwe Broadcasting Corporation's monopoly.

In a related development, Parliament later passed the Zimbabwe Broadcasting Corporation (Commercialisation) Act, 2001.⁷ This Act in essence provides for "the formation of successor companies to take over the functions, assets, liabilities and staff of the Zimbabwe Broadcasting Corporation."⁸ This Act also amends the Broadcasting Services Act to import the essence of certain provisions of the Zimbabwe Broadcasting Corporation Act. Provision is also made for the repeal of the Zimbabwe Broadcasting Corporation Act so soon as the President is satisfied as to certain matters. Further amendments to the Broadcasting Services Act are proposed in the Broadcasting Services Amendment Bill, 2002.⁹

We have been instructed to prepare and do hereby furnish an analysis of the Broadcasting Services Amendment Bill and of the Zimbabwe Broadcasting Corporation (Commercialisation) Act. Having regard to the chronology narrated above, this paper will commence with a consideration of the Zimbabwe Broadcasting Corporation (Commercialisation) Act incorporating, where relevant, a testing of its provisions and effect against the Declaration of Rights. The Broadcasting Services Amendment Bill will thereafter receive similar treatment and in both cases a comparison between these instruments and comparable measures in other jurisdictions will be made. Should this prove to be necessary, and subject to the reservations expressed regarding the diction employed in our instructions, we might then make recommendations as to amendments which might be appropriate in the light of the observations we shall make.

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