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Analysis of Section 80 of the Access to Information and Protection of Privacy Act
Media Institute of Southern Africa - Zimbabwe Chapter (MISA-Zimbabwe)
June 05, 2002


Section 80 of the Access to Information and Protection of Privacy Act falls under what is termed "Abuse of Journalistic Privilege" in the Act. This clause provides for the punishments, both monetary and jail sentences that can be preferred on journalists who would have "abused their privilege" by writing falsehoods and fabricating information. As has been noted above almost all the journalists who have been arrested have been charged under this Clause.

Section 80 reads that:

(1) A journalist shall be deemed to have abused his journalistic privilege and committed an offence if he does the following—

(2) A person who contravenes subparagraphs (a) to (d) of subsection (1) shall be guilty of an offence and liable to a fine not exceeding $100,000 or to imprisonment for a period not exceeding two years.

It must be noted that freedom of expression is constitutionally guaranteed in Zimbabwe and what clause 80 seeks to do is to make it (Freedom of expression) a privilege and not a right. It is therefore unconstitutional for the Act and the law enforcement agencies to confer "privilege" status to what is essentially a right. Furthermore the punishment is hefty and will inhibit journalists in the exercise of freedom of expression as has already been seen through the number of arrests, legal costs and psychological torture that takes its toll on journalists.

The clause makes it difficult for a media practitioner to determine his conduct in light of the contradictions and uncertainties in the whole Act. Faced with such law journalists will be forced to steer clear of controvesional issues for fear of violating the law. Critical debate will be affected by the punishment that awaits a person who abuses "journalistic privilege".

Clause 80 establishes offences, which will be deemed to be an abuse of journalist privilege. In terms of this section it is criminal to publish falsehoods, falsify information, collect information for persons who are not the employer of the individual, and most important of all, it is an offence to breach any section of the Access to Information Act. The practice of journalism is rendered criminal. As mentioned above it must be stated that the section is unconstitutional, in that it violates section 20 of the Constitution.

Subsection (1)(a) states that it is an offence to falsify or fabricate information, and subsection (1)(b) states that it is an offence to publish falsehoods. There is no distinction between the two sections, as both refer to the same thing, which is the publication of information that is not "true." The issue is one of truth! The criminalizing of the failure to report accurately places an unreasonable hindrance of freedom of expression as guaranteed in section 20(1) of the Constitution.

As to the publication of false information, the very limited circumstances in which that can be made an offence have been stated by our Supreme Court in the case of Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S).

"Often the line between fact and opinion is blurred." The major problem with the restriction lies with the difficulty with defining expression, words and terms. The Supreme Court struck down section 50(2) of the Law and Order Act, which criminalized the publication of false statements. And the Supreme Court stated that:

"The use of the word ‘false’ is wide enough to embrace a statement, rumour or report which is merely incorrect or inaccurate, as well as a blatant lie…"

And as a result of the slipperiness of interpretation, "what is overlooked in the criminalisation of false statements is that language is used in a variety of complex and subtle ways. It is simply not possible to divide statements into categories of fact and opinion. Rhetorical devices, figures of speech, comedy, metaphor and sarcasm are all examples of superficially false statements which either may be substantially correct or be expressions of opinion."

In any event, the excesses of the media "and most important, the consequences of failure to prove truth are civil damages, not the rigorous sanction of criminal conviction and imprisonment."

The Supreme Court in the case of Chavunduka (Supra) accepted that the criminalisation of the publication of statements, deemed to be false, is unconstitutional. This is because language is imprecise, and interpretation of term and phrase is rendered subjective as a result. Section 80(1)(a) "…is potentially applicable to a very wide range of published work and effectively allocates a wide discretion to authorities in deciding when and where to prosecute. It is also difficult for citizens to know with any degree of certainty whether there are conforming to its requirements. Were this provision to be actively applied, it would exert a significant chilling effect on freedom of expression."

There is no doubt that the government simply re-introduced legislation that it knows was declared unconstitutional by the Supreme Court.

Subsection (1)(d) prohibits any journalist from breaching any section of the Access to Information Act, on pain of criminal sanction. This means for instance that if journalist publishes information that relates to national government information without official clearance from the government officials, that constitutes a breach punishable in terms of section 80 by up to two years imprisonment. It also means that if a journalist obtains information from a public body but without disclosing to the head that he is a journalist intending to obtain information, the publication of the information constitutes an offence.

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