Back to Index
to article index, «
legal implications of accreditation or non-accreditation of journalists
under the Access to Information and Protection of Privacy Act
Irene Petras on behalf of MISA-Zimbabwe Chapter
October 19, 2002
© reserved -
Irene Petras October 2002
forward in the event of a decision not to accredit
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.
of the right of freedom of expression
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."
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.
- 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.
- 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.
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.
(1) ZLR 552 (S)
2Association of Independent
Journalists & Ors -v- Minister of Information and Publicity & Ors
3Chavunduka op cit and In
re: Munhumeso Ors 1994 (1) ZLR 49 (S)
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.