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Free expression and access to information in Zimbabwe
David Lush and Professor Tawana Kupe
Extracted from Report on International conference on media support strategies for Zimbabwe
November 30, 2005

http://www.i-m-s.dk/Media/PDF/Zimbabwe

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Rarely are the words "Zimbabwe" and "crisis" found apart these days. Zimbabwe has become the epitome of a crisis. Responses to crises tend to be short-term and reactive. With further food shortages looming, the current humanitarian crisis in Zimbabwe is likely to continue. Likewise the economy lurches from crisis to crisis in apparent free-fall. Meanwhile, Zimbabwe’s political crisis has all but come full circle, the current implosion of the opposition Movement for Democratic Change (MDC) being the last act of a doomed transition of power that started back in the late 1990s.

However, there is no such crisis when it comes to freedom of expression and access to information. Rather, the enactment of repressive legislation, the harassment of media workers, and the frustration and closure of private media enterprises that have accompanied the other crises are part of a continuum dating back to colonial times, if not before. Successive governments have continued a tradition of intolerance of diverse expression and suppression of information using laws that date back to colonial times. Although resembling a crisis, the current exodus of Zimbabwe’s media professionals from the country, the State’s continued monopoly of the broadcasting sector, and the cannibalisation of private newspapers by the ruling elite is but another chapter in a sorry story that has required long term solutions for a desperately long time. With little hope left in the foreseeable future for resuscitating the limited form of media freedom known to Zimbabweans during the 1990s, the time has come to take stock, rethink and plan anew.

Structural overhaul
Although standard at the time it was drafted in 1980, Zimbabwe’s constitutional guarantee of free expression (Article 20 of the Constitution) is an artefact of a by-gone era. Constitutions elsewhere in Africa are being reformed explicitly to guarantee free expression, media freedom and access to information. The contemporary benchmark for constitutional guarantees of free expression and access to information is set in the 2003 Declaration of Principles on Free Expression by the African Commission on Human and People’s Rights (see Appendix A). The Declaration seeks to define in more depth the guarantee of free expression contained in the African Charter on Human and People’s Rights (Article 9), and can be used in judgement of cases brought before the Commission and – once formed – the African Court on Human and Peoples' Rights. Zimbabwe has signed the Declaration, and Andrew Chigovera, Zimbabwe’s government appointed human rights commissioner, was actively involved in the drafting and subsequent adoption of the Declaration by the Commission.

Zimbabwe’s current constitutional guarantee of free expression has provided some defence, notably when cell phone provider Econet won the right in 1997 to operate on the grounds that the limitation of telecommunications operators was contrary to the right of citizens to express themselves freely. In 2000, the government’s monopoly on broadcasting was ruled unconstitutional in a case brought by aspirant private broadcaster Capital Radio. It required all of Econet’s corporate muscle and the dogged persistence of the company’s owner Strive Masiyiwa to overcome the government’s attempts to block the licensing of Econet following the constitutional ruling. Capital Radio was not so lucky, and was hounded off air.

These cases were fought by people with commercial interests in media and communications. There have been few attempts to defend and uphold the right to free expression of less influential and powerful citizens. There is awareness of, and longing for the rights of free expression and access to information among less influential people, but the majority of Zimbabweans appear to lack knowledge about the laws that affect these rights (ACPD and MISA 2004. See also ‘Community views on communication’ elsewhere in this document). Not surprisingly, in the current climate of fear and intimidation, few people are able exercise their rights. But what encouragement – through legal action and support by those with more power and influence, such as the media – have they been given?

The Constitution – or at least the court’s interpretation of it – has proved less robust in challenges to the constitutionality of sections of the Access to Information and Protection of Privacy Act (AIPPA) and the 2002 Public Order and Security (POSA) Act (see ‘Media laws in Zimbabwe’ elsewhere in this document). Furthermore, the Constitution did little to rid the statute books of repressive legislation inherited by the ZANU-PF government from its colonial predecessors at independence. These antiquated laws – the Official Secrets Act, Parliamentary Privileges and Immunities Act and POSA’s forerunner the Law and Order (Maintenance Act) among them - were used to criminalise free expression during the first two decades of independence (Amnesty International 1995, MISA 1994-2004). AIPPA and POSA are but additions to an armoury of repressive legislation in force at independence, and systematically abused by governments ever since. When these laws were ruled unconstitutional, as was the case with the Law and Order (Maintenance Act) in 1994, the government reintroduced much of the old law in the guise of new legislation, as was the case with POSA.

Zimbabwe has the dubious distinction of enjoying a continuous tradition of developing, implementing and perfecting legislation that restricts and seeks to close down the democratic space, while the trend elsewhere has been to do the opposite. Such a context has had and continues to have a damaging effect on the media, and breeds journalistic practices that have polarised the media industry. An overhaul of the Constitution is a pre-requisite for any meaningful advancement of free expression and access to information. Even when the current constitutional guarantee of free expression is adequate, political bias within the judiciary makes its interpretation a lottery, and therefore constitutional guarantees of the independence of the judiciary, as well as public media institutions and regulators, are also a pre-requisite for guaranteeing free expression and access to information. Such institutional independence is defined in the African Commission’s Declaration of Principles on Free Expression.

Constitutional reform in Zimbabwe has been spearheaded by the National Constitutional Assembly (NCA), and is based on the rejection, in the 2000 referendum, of the government’s amended constitution. This popular rejection pointed to the need for a more broad based participatory approach to constitutional reform. However, the NCA also needs to be aware that the government driven approach was unsuccessful, in part, because the final draft ignored the inputs of the public, and not necessarily because the government’s draft was totally flawed. Some of the views gathered by the discredited government-driven process could be used as a basis to take the process forward through a new broad based participatory politics. The NCA faces a test of its own credibility in trying to convince all major political forces, including the MDC, to prioritise constitutional reform over electoral contests. It is interesting to note that the MDC President Morgan Tsvangari is talking about reviving the constitutional reform process as his party falls apart, and the time may be ripe to revive a broad based approach to constitutional reform.

Meanwhile, the Media Monitoring Project Zimbabwe (MMPZ) co-ordinates the Public Information Rights Forum, an alliance of civic media editors and information officers in the Civic Alliance for Social and Economic Progress (CASEP). The Forum seeks to represent media consumers, and carries out civic education work on public information rights issues. This may provide another launch pad for a much broader-based campaign around freedom of expression and access to information.

Continued efforts could be made to challenge existing undemocratic laws through the African Commission, as a way of illustrating that these laws do not conform to African values. And although the likes of AIPPA and POSA are extremely restrictive, there remains scope for working within them, and challenging their abuse through the Zimbabwean courts. Even the politically appointed Supreme Court, when interpreting a weak constitution, ruled that the "false news" provision of AIPPA was unconstitutional. On at least four occasions in recent years, Magistrate courts have ruled in favour of media workers charged under AIPPA. The Zimbabwean and Independent newspapers continue to be registered by the MIC, despite being editorially critical towards the government. So, in a similar vein, the Weekly Times might have been licensed if it was up-front about its intentions to report on politics. Associated Newspapers of Zimbabwe (ANZ), the publishers of the Daily and Sunday News, first chose not to register, giving the MIC an excuse to challenge their subsequent registration bid. Notifying the authorities of a change in shareholding, failure to do which allowed the MIC to deregister the Tribune, is standard practice under company law. Yes, the laws are restrictive, and keeping within them, looking at creative ways around them, and challenging their abuse, is hard, time-consuming, costly and sometimes dangerous work. But it is doable, as media in similarly restrictive environments have shown. MISA has in place its media defence fund and a network of media lawyers to assist. As a way of challenging the fear that underpins the culture of silence that pervades Zimbabwean society, greater efforts could be made to assist those with less of a commercial, and more of a public interest in free expression to both understand and uphold their right to free expression. In this way, free expression advocates might be able to foster real public interest in free expression and access to information issues, public opinion arguably being the strongest defence of all.

Guns and microphones
Zimbabwe’s liberation struggle witnessed an intense propaganda war with both the oppressor and the oppressed using mass media to enhance their military campaigns (see Frederikse 1983 for a detailed account). It was here that the liberation movements ZANU-PF and ZAPU developed an understanding of, and perhaps an appetite for the means of controlling the dissemination of information:

The liberation movements’ use of media was prompted by the white minority regime’s own propaganda efforts, particularly following the declaration of unilateral independence in 1965. The regime started by jamming the BBC broadcasts from a transmitter in neighbouring Botswana using a 400 000 watt American-made transmitter – an ironic twist to the current government’s reported use of Chinese-made equipment to jam the short-wave broadcasts of the London-based SWAfrica radio, and Voice of the People (VoP). The Rhodesian Broadcasting Corporation (RBC) then established inside the country "African" radio stations broadcasting on FM, and subsidised the manufacture and distribution of cheap FM-only radio sets (Ibid p96). There was little difference between the RBC’s approach to broadcasting, and that of the Zimbabwe Broadcasting Corporation after independence. At independence, the RBC changed its name to the ZBC, and the political appointees of the RBC were simply replaced by appointees of the new ZANU-PF regime (Maja-Pearce 1995:124-6). The ZBC was governed by the same legislation as the RBC up until 2001. The RBC was a state broadcaster par excellence - state driven and propagandistic. The ZBC has never been a genuine public broadcaster and, as the political and economic crisis deepened in the late 1990s, so its role as a state propaganda tool became more and more unashamed. To the extent that opposition and civil society voices are either completely excluded, or so selectively quoted out of context that broadcasts have little resemblance to reality, as was the case with the RBC. The ZBC has sought to promote national culture and languages through locally produced programming, as a genuine public broadcaster is required to do. But this is done in ways that advances the government and ruling party’s political agenda, as did the RBC’s African programming.

Therefore the culture of propaganda the polarisation of information is deeply ingrained in Zimbabwean mass communication culture. So too, it seems, is the combative role of media. The MMPZ’s report on the media coverage of the 2000 General Election has the ominous title of The Media War, and the language used in the Zimbabwean media – not to mention the MMPZ’s own reports - is often bellicose. More often than not, it simply echoes and amplifies – rather than challenges or contextualises – the actual and rhetorical violence of Zimbabwean politics. The divergent viewpoints of the Zimbabwean media, and the polarisation of media workers into pro and anti-government factions, further suggest the media has failed to evolve much from the preindependence era.

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