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Zimrights
applauds administrative court judgement on ANZ (Daily News)
Zimbabwe
Human Rights Association (ZimRights)
October 27, 2003
INTRODUCTION
The Supreme Court
of Zimbabwe declared the operations of ANZ illegal on 11 September
2003.
The Supreme
Court judgement in ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE)
LIITED V (1) THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY
IN THE PRESIDENT’S OFFICE (2) MEDI AND INFORMATION COMMISSION
(3) THE ATTORNEY GENERAL OF ZIMBABWE – SC 20\03 observed: -
"Compliance
with the law does not necessarily mean submission of an application
for registration to carry on the activities of a mass media
service. It certainly means desisting from carrying on the
activities of a mass media service illegally.
In the result
the point taken in limine succeeds. The applicant
is operating outside the law and this Court will only hear
the applicant on the merits once the applicant has submitted
itself to the law."1 (emphasis
mine)
The ANZ were
ordered to comply with the requirements of mass media services and
to apply for registration with the Media and Information Commission
(MIC). ANZ complied as ordered by the courts and applied on 15 September
2003. The Media and Information Commission declined to register
ANZ on the 20th of September 2003. According to the determination,
signed by the Chairman of the MIC, the ANZ had applied for registration
as a mass media service on the 15th of September 2003
in the prescribed form and paid its application fees. But the Commission
noted that the Applicant (ANZ) had filed its application eight and
a half months after expiry of the transitional period that ended
on the 31st of December 2002. The Commission viewed the
operations of the ANZ as being in contravention of the law, in particular
in contravention of Section 66 of the Access to Information and
Protection of Privacy Act. The Commission also noted that the ANZ
had employed unaccredited journalists whereas, unemployment of unaccredited
journalists is unlawful2. The employment
of Chengetai Zvauya3 a journalist said
to be with previous conviction was raised by the Commission. Such
a point could be used to reflect how emotional the investigations
and deliberations of the commission were. This also proves the fact
that the Commission’s deliberations were biased against the granting
of a licence to ANZ. The Administrative Court raised the issue of
bias. Other reservations were also noted by the Commission including
findings reflecting that even at the time of considering the application,
ANZ failed "in terms of Section 69 (1) (a) to comply with the
Act in that it continues to employ unaccredited journalists."4
The Commission therefore unanimously agreed that the ANZ application
failed to meet the requirements of the law and resultantly refused
to grant ANZ a licence.
DIARY OF FACTS
23 September
2003
The ANZ lodged
an appeal with the Administrative Court against the decision of the
Media and Information Commission. The was in compliance with provisions
spelt out under Section 60 of the Access to Information and Protection
of Privacy Act. The ANZ appeal was raised focussing on three issues,
namely:
- The Improper
Constitution of the Media and Information Commission
- Media and
Information Commission acted ultra vires its powers
- To prove
the bias of the Media and Information Commission
02 October
2003
ZimRights
issues a public petition condemning the decision by the MIC not
to grant a licence to ANZ. Members of public who gathered at ZimRights
offices felt the decision was ill concieved and bent on silencing
the independent media. ZimRights noted that the decision by the
MIC was in violation of Chapter 3 Section 20 of the Constitution
of Zimbabwe and against the provisions under Article 19 (2) of the
International Covenant on Civil and Political Rights (ICCPR) and
Article 19 of the Universal Declaration of Human Rights (UDHR).
The petition further condemned action by the Zimbabwe Republic Police
(ZRP) when they confiscated Daily News property on the 12th
Day of September 2003. ZimRights urged members of the police force
to act within the confines of the law. The petition unreservedly
challenged the authorities to remain professional in the discharge
of their duties.
ZimRights delivered
the petition to the Minister of Information and Publicity in the
office President and Cabinet, another copy to the Media and Information
Commission5.
06 October,
2003
1430
hours: ZimRights was immediately summoned to appear before the Commission
to answer allegations of trying to incite members of the public
against the Commission and conspire against the State. Mr Munyaradzi
Bidi, the National Director and Mr Obert Chinhamo, the Programmes
Coordinator represented more than a million petitioners before the
Commission. Verbal threats were made against ZimRights and its officers.
The Commission Chairman, Dr Tafataona Mahoso, unreserverdly threatened
unspecified action against the two officers. An emotional Mahoso
openly advised that ZimRights retracts the petition - this was vehemently
denied by the members of public.
16 – 19 October
2003
The
appeal was heard in the Administrative Court between 16 – 19 October
2003.
24 October,
20003
Decision
of the Court: A week later, the judgement was handed down on 24
October 2003. The President of the Court, M. Majuru who sat with
two assessors, Mr Timbe and Mr Chari handed down judgement as follows
(not verbatim):
- The evidence
adduced during the hearing satisfied the Court that especially
the Chairman of the Media and Information Commission was biased
against the Associated Newspapers of Zimbabwe. Because of the
manner exhibited by the MIC Chairman, the issue of bias was also
decided against the Commission itself.
It was found
that the Media and Information Commission chaired by Dr Tafataona
Mahoso was improperly constituted since it was set up without
having regard to the requirements of Section 40 of the Access
to Information and Protection of Privacy Act (AIPPA)6.
- Section 40
of AIPPA requires that of the three nominees on the Board of the
Commission, at least one be nominated by an association of media
houses.
President
of the Court in his judgement noted:7
"It
follows that the Respondent, as currently constituted, is improperly
constituted in terms of law and was accordingly unable to lawfully
make the decision it made."
- By virtue
of being improperly constituted, the Court made a finding that
the Media and Information Commission "cannot ….. lawfully
issue certificates of registration."
- The Media
and Information Commission was held to have exceeded its powers
by considering the ANZ application when the law enjoined it not
t consider an application where an applicant is in violation of
the law. Since the Commission strongly felt that ANZ was in contravention
of the Act, then it (MIC) should not have bothered considering
the application. Section 69 of the Access to Information and Protection
of Privacy Act (AIPPA) Section 69 points the grounds upon which
the Commission may refuse granting an application.8
In conclusion,
the Administrative Court found that
"Given
the finding of bias that we have made, the unjustifiable delay
that might be occasioned to the Appellant by re-determination,
and the fact that we are in as good a position to make the decision
ourselves, we order that the Appellant be issued with a certificate
of registration by the Respondent.
As already
determined, the Respondent is currently improperly constituted.
It cannot therefore lawfully issue certificates of registration.
Accordingly, it is ordered that:
- There be
appointed by the appointing authority a validly constituted
board as envisaged in Section 40 by 30 November 2003.
- The Board
is to issue appellant with a certificate of registration on
or before that date failing which the Appellant shall be deemed
to be registered as from that date…."9
25 October
2003
The
Daily Newspaper published a short edition of the paper and circulated
it. Armed police took siege to the ANZ offices and arrested 19 journalists
and other staff members. The Daily News staff and journalists were
later released without being charged. The police said they had arrested
the journalists in order to establish who had given them the directive
to publish. A docket was said to be in its final stages for the
Attorney General to prosecute. This is a continued worrying trend
that the Zimbabwe Republic Police use – that of arrest and investigate
later.
26 October
2003
One
of the Directors, Mr Washington Sansole was arrested in Bulawayo.
Mr Sansole was arrested for allegedly authorizing the publishing
of the Daily News without a licence. The other Directors were said
to be in hiding for fear of being arrested.
27 October
2003
Four other Daily News Directors, S. Nkomo, B. Mustawo, Rachel
and Ms Stewart were picked up by the police and detained at Harare
Central Police Station. Daily News lawyer, Gugulethu Moyo and another
lawyer Beatrice Mtetwa (1836 hours) were still battling to secure
their release. The Directors were being charged for contravening
Section 72 (1) of AIPPA (emphasis, underline mine).10
CONCLUDING OBSERVATIONS
The decision by
the Administrative Court is most welcome as an endorsement of respect
of local laws and affirmation on the need to respect international
covenants such as Article 19 of ICCPR. A point to note is the need
to review local legislation in order to ensure their compatibility
with international covenants. The decision by the Administrative Court
therefore provides that as it rightfully states, that by virtue of
its being ‘improperly constituted’ the Media and Information Commission
was operating outside the law. The Media and Information Commission
as represented by Dr Tafataona Mahoso indicated that the Commission
was to lodge an appeal against the judgement handed down by the Administrative
Court. The Media and Information Commission like most government institutions
have been using (mis) interpretation of the law to subvert justice.
The continued appeals and court application against court decisions
by government institutions amounts to gross abuse of the justice delivery
system and meant to frustrate the due process of law and in this case
to delay implementation of justice and provide an opportunity for
further harassment of the ANZ. The intention by the Media and Information
Commission to appeal against the Administrative Court decision clearly
proves the consistency of bias as exhibited by Dr Tafataona Mahoso
during the hearing.
ZimRights is
concerned with continued harassment/detention of independent journalists
and urges that the authorities urgently release the Directors of
the Daily who have been detained for allegedly authorizing the publication
a short edition of the Daily News paper on Saturday, 25 October
2003. The gagging of independent press is gagging of democracy.
ZimRights further
notes with extreme concern that the mass media as well as other
forms of expression (such as right to organize and demonstrate),
including artistic expression (such as music), are subject to censorship
and are largely controlled by the Government. The mass media laws
and restrictions on freedom of expression and the press should be
brought into strict compliance with Article 19 (2) and Article 19
(3) of the International Covenant of Civil and Political Rights
(ICCPR).
1 Judgement No:
SC 20\03
2 Employment of unaccredited journalists is made unlawful by Section
79(6) of AIPPA
3 MIC determination pp3
4 MIC determination pp 4
5 Certificate of Service, 3/10/03
6 40 Appointment and composition of Media and Information Commission
(1) The operations of the Commission shall, subject to
this Act, be controlled and managed by a Board.
(2) Subject to subsection (3), the Board shall consist
of no fewer than five members and not more than seven members (at
least three of whom shall be nominated by an association of journalists
and an association of media houses) appointed by the Minister after
consultation with the President and in accordance with any directions
that the President may give him. (Except from AIPPA, Section 40)
7 Administrative Court Judgement handed 24/10/03 p 6
8 69 Refusal of registration of mass media service
(1) The Commission may not refuse to register a mass media
service unless-
(a) it fails to comply with the provisions of this Act;
or
(b) the information indicated in an application for registration
is false, misleading or contains any misrepresentation; or
(c) that mass media service seeks to be registered in
the name of an existing registered mass media service;
and the Commission shall forward a written notification of the refusal
of registration, stating the grounds upon which such refusal is based.
(2) An application for the registration of a mass media
service shall not be considered-
(a) if it contravenes any provision of this Act; ………
(excepts from AIPPA, Section 69)
9 Operative part of the Administrative Court Judgement handed 24/10/03,
pp13
10 72 Penalties for operating mass media service without registration
certificate
(1) No person shall carry on or operate a mass media service
without a valid registration certificate, licence or permit issued
in terms of this Act or any other law.
(2) A person who contravenes subsection (1) shall be guilty
of an offence and liable, upon conviction, to a fine not exceeding
$300,000 or to imprisonment for a period not exceeding two years or
to both such fine and such imprisonment. (Excepts from AIPPA, Section
72 (1), (2).
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