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The legal implications of accreditation or non-accreditation of journalists under the Access to Information and Protection of Privacy Act
prepared by Irene Petras on behalf of MISA-Zimbabwe Chapter
October 19, 2002

© reserved - Irene Petras October 2002

Way forward in the event of a decision not to accredit
A possible method of avoiding the obligation to accredit, being the ‘employment-consultancy argument’, has been outlined. There is also the argument that one cannot consent to being accredited and bound to a non-existent code of conduct, as this would constitute a contract that would be void for uncertainty. The constitutional argument of discrimination in violation of section 23 of the Constitution has also been outlined.

If a journalist decides not to seek accreditation, there also exists the argument that section 79 of the Act violates one’s freedom of expression, which is protected in terms of section 20(1) of the Constitution.

Violation of the right of freedom of expression
There is no doubt that the State views the independent media both locally and internationally with suspicion. It is concerned with their attempts to undermine the government and the country as a whole. They have little tolerance for criticism or constructive suggestion. In large part, this would appear to be the rationale behind the current legislation.

However in the case of Chavunduka & Anor –v- Minister of Home Affairs & Anor¹ the Supreme Court stated that, "freedom of expression constitutes one of the essential foundations of a democratic society and that it is applicable not only to information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness, without which there is no democratic society."

There is a three-pronged approach to testing whether the constitutional freedom of expression has been limited in a manner that is reasonable and justifiable in a democratic society. This is currently the subject of argument in the Supreme Court². It is a very strong argument and any independent court concerned about the protection of freedom of expression should uphold the submissions by the journalists, especially considering that courts have on several previous occasions indicated that any restrictions on freedom of expression are to be interpreted in a narrow and limited manner³.

The first question to address would be whether mandatory accreditation hinders a journalist’s enjoyment of freedom of expression and his freedom to hold opinions and receive and impart ideas and information. The Commission is open to political interference as already illustrated, and has enormous powers to restrict a journalist from practising his profession. Criminal sanctions are imposed for those who operate without accreditation, as section 80 makes it an offence to contravene any section of the Act. Finally, there is no guarantee that an application for accreditation will be successful. There is no doubt that section 79 contravenes the freedoms enshrined in section 20(1).

The next step would be to ask: does section 79 fall within the enabling section, being section 20(2)? This subsection lists various instances in which the freedom of expression could be limited. The only one that would need to be looked at carefully would be where the limitation would be in the interests of defence, public safety, public order, the economic interests of the State, public morality or public health. It would be important to remember the words of the Supreme Court in both the Chavunduka and the Munhumeso cases when the bench indicated that, "It is not sufficient that the limitation on freedom of expression effects merely incidentally one of the specified legitimate aims. It must be primarily directed at that aim – an overriding objective." Also, "derogations from rights and freedoms which have been conferred should be given a strict and narrow, rather than a wide construction. Rights and freedoms are not to be diluted or diminished unless necessity or intractability of language dictates otherwise."

The remainder of the limitations would not be relevant in this case, and in any event would be capable of protection by methods such as civil action, and even criminal defamation suits.

If it were proved that the freedom could be limited for such national interests, it would still need to be proved that such a limitation is reasonable and justifiable in a democratic society.

1. The legislative objective of the limitation should be sufficiently important to warrant overriding a fundamental right. If it were of primary concern, then this would have been clearly alluded to in the Act. None of the grounds for limitation of the right are even mentioned in the Act, and therefore there is no real legislative objective intended to be protected by section 79.
2. The measures designed to meet this objective should not be arbitrary, unfair or based on irrational considerations, and the means used to impair the right should not be more than necessary to accomplish the objective. The considerations for requiring mandatory accreditation are not even alluded to in the Act. In any event, the fact that non-accreditation is a criminal offence and the Commission has the power to stop a journalist from making a living by exercising his profession shows how irrational the limitation would be.

In light of the abovementioned, it is submitted that the requirement of mandatory accreditation is contrary to the right of freedom of expression, and it cannot be saved under the limitations clause, as it is not reasonable and justifiable in a democratic society.

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If journalists decide against subjecting themselves to mandatory accreditation, then they should monitor the cases currently before the Supreme Court of Zimbabwe. If the constitutional court rules in favour of the journalists’ associations, section 79, amongst other sections, will be struck down as unconstitutional, and the affected journalists will be vindicated. If the applications fail, the judgments will have to be subjected to scrutiny to ensure that all the above arguments have been fully ventilated. If not, a further application can be filed and relevant argument made. Journalists should, however, be aware that they might be subject to criminal prosecution for failure to accredit. If arrested, it would be open to them to approach the courts on the basis of the constitutional arguments already outlined. This is a personal and moral decision, which each individual has to consider carefully. Those journalists who were not previously accredited and were obliged to register within 3 months of the Act coming into operation are free to use the arguments about the unconstitutionality of the discrimination between themselves and those who have been given a lifeline until the end of the year merely because they had been accredited voluntarily before the promulgation of the Act.

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