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Statement on the judgment on the Associated Newspapers of Zimbabwe case
MISA-Zimbabwe
March 16, 2005

The Media Institute of Southern Africa (MISA)-Zimbabwe is dismayed by yet another Supreme Court judgment upholding certain sections of the Access to Information and Protection of Privacy Act (AIPPA) as constitutional.
The Constitutional challenge brought by the Associated Newspapers of Zimbabwe (ANZ) against the Minister of State for Information and Publicity in the Office of the President and Cabinet as well as the Media and Information Commission (MIC) sought the nullification of sections 39, 40, 41, 65, 66, 69, 70, 71, 76, 79, 80, 83 and 89 as well as paragraph 4 of the Forth Schedule of the Act as unconstitutional.

The case was heard on March 3, 2004, with judgment only being delivered on March 14, 2005, over one year after the matter was heard.

We have always stated that justice delayed is justice denied and in this case there can be no argument over the fact that the unwarranted delay certainly resulted in a gross miscarriage of justice.

Although the Supreme Court set aside the determination of the MIC in which it refused ANZ registration as a mass media service provider, the fact that the same court referred the issue back to the MIC for consideration de novo is cause for concern.

This is informed by the fact that the same MIC especially its chairperson has previously been found to be biased against ANZ. Even the Chief Justice remarked that the chairperson who should have appreciated that he would chair the Commission that would determine the application for registration by ANZ should have refrained from making comments that were likely to make ANZ apprehensive on the chances of a fair hearing from the MIC. We only hope that this time around, the MIC will apply its mind to the protection of the right to Freedom of Expression and grant ANZ an operating licence.

Chief Justice Godfrey Chidyausiku concurred with Justices Cheda, Ziyambi, Malaba and Gwaunza and declared all Sections under challenge to be constitutional. We have always stated that the powers accorded to the MIC and the Minister amount to quasi-judicial powers and this judgment will not change our position. The MIC and the Minister can decide on whom to and not to accredit therefore, who can and cannot work as a journalist in Zimbabwe. We have questioned and will continue to ask why the Minister and his permanent secretary would want to approve an application to practice as a journalist. Such a process is no longer a mere formality as there is discretion on the part of the accrediting authorities to accredit or to refuse to accredit.

MISA Zimbabwe notes with concern that this judgment casts an ominous spell on press freedom in Zimbabwe. The Supreme Court dismissed most of the arising issues on technicalities. To the ordinary man, this does not make sense. Where the law fails to protect the rights of its own citizens, then it is bad law and as citizens we do not need such a law.

We reiterate that the contentious sections upheld by the Supreme Court bench severely undermine the exercise of freedom of expression.

We have always stated that the Access to Information and Protection of Privacy Act was not promulgated in good faith. Its use has been against journalists working in the privately owned media. We call upon the sixth Parliament of Zimbabwe to repeal this Act so that Zimbabweans can freely exercise their right to freedom of expression.

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