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Supreme Court reserves judgement in media law challenge
Media Institute of Southern Africa - Zimbabwe Chapter (MISA-Zimbabwe)
November 21, 2002

The Supreme Court yesterday (21 November 2002) reserved judgment in a case in which the Independent Journalists Association of Zimbabwe (IJAZ) is challenging certain clauses of the Access to Information and Protection of Privacy Act (AIPPA).

The full bench of the Supreme, which sat to hear the constitutional matter, said that it would need time to read the submissions by the lawyers and did not give a date as to when the judgment would be delivered.

IJAZ is challenging the constitutionality of sections 79, 80, 83 and 85 of AIPPA. The journalist's body contends that these sections, which prescribe compulsory registration of journalists and also spells out punitive measures for journalists who break a code of conduct and write falsehoods, are unconstitutional as they violate freedom of expression. IJAZ cited Information and Publicity Minister Jonathan Moyo, the Chairperson of the Media and Information Commission (MIC), Tafataona Mahoso and the Attorney General, Andrew Chigovera as the respondents.

IJAZ, which is being represented by Sternford Moyo, argued that journalists are being forced to register with the MIC yet the Minister will determine at a later stage who qualifies to practice as a journalist. Moyo also added that journalists are being forced to register before they know the code of conduct that would guide them. "It is like being forced to enter a house without knowing whether you are going to be whipped or given food," said Moyo.

Moyo added that Section 80 that deals with the publication of falsehoods was excessively broad to the extent of penalizing jokes such as "April Fools Day" jokes.

The Chief Justice Godfrey Chidyausiku in interventions during the proceedings asked the state lawyer Johannes Tomana to tell and justify to the court why the Minister of State for Information and Publicity is given "so much power". Tomana tried to trace the history of the law and link it with what he termed irresponsible journalism to which the bench reminded him to relate what he was saying to the constitutionality of the law. "You are not relating to the constitutionality of the relevant sections," said Justice Malaba. "There is need to regulate, but it has to be regulation within the law. What you need to demonstrate to us is whether it has been done professionally," said Chief Justice Chidyausiku.

Chidyausiku challenged the state lawyers to justify why the law makes the publication of a falsehood a criminal offence when there was no complainant, as opposed to dealing with the matter as an ethical issue of misconduct. Tomana conceded that, where there was no complainant the law could not be said to be protecting the rights and reputations of persons and that the wording does not specifically mention the interests to be protected under the Act. Justice Ziyambi noted that Section 80 (1) of the act deems a journalist guilty of an offence as opposed to being innocent until proven guilty.

The Zimbabwe Broadcasting Corporation (ZBC) reported on 21 November 2002, that the government had expressed disappointment with the Attorney General for failing to draft the media law "correctly" and failing to defend the government in many cases that have come before the courts in recent months. It is widely believed, however, that the Attorney General had little if any input into the media law, some of whose clauses are now being contested. The Department of Information and Publicity was largely involved in this process.

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