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Media
laws In Zimbabwe
MISA-Zimbabwe
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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Follows an analysis
of legislation affecting free expression and access to information
in Zimbabwe.
The Constitution
of Zimbabwe
The
right to free expression is guaranteed in Section 20 of the Constitution,
which states.
"Except
with his own consent or by way of parental discipline, no person
shall be hindered in the enjoyment of his freedom of expression,
that is to say, freedom to hold opinions and to receive and impart
ideas and information without interference and freedom from interference
with his correspondence."
The above provision
makes no specific mention of the right to media freedom, or the
right to access information, which means these rights are inadequately
protected.
The Access
to Information and Protection of Privacy Act
The Access
to Information and Protection of Privacy Act (AIPPA) governs
the operation and general conduct of the media in a way that leaves
the media with little breathing space.
AIPPA provides
for access to information held by public bodies, but it is up to
the heads of these public bodies to decide what they will and will
not release "in the pubic interest" Public interest is
not defined in the law. The Act allows public officials to hold
information for 30 days after a request for information is made,
which is impractical for journalists. This 30-day period may be
extended by another 30 days with the permission of the Media and
Information Commission (MIC), the board of which is appointed by
the Minister of Information. Where the information requested affects
a third party, the latter is given up to 20 days to respond.
All journalists
must be accredited by the MIC. Foreign journalists – including Zimbabweans
not "ordinarily resident" in Zimbabwe - can be accredited
for no more than 30 days. Media institutions and news agencies must
be registered by the MIC, which has the power to refuse and withdraw
registration. Foreigners and Zimbabweans not ordinarily resident
in Zimbabwe are barred from registering media houses.
Public Order
and Security Act (POSA)
Promulgated in 2002, POSA
was meant to repeal the Law and Order Maintenance Act (LOMA). But
in effect, POSA is a reworded version of LOMA with a different name.
Like its predecessor, POSA contains provisions that curtail freedom
of expression.
POSA re-introduces
provisions of the 1964 Preservation of Constitutional Government
Act, (repealed in 1999), which the Rhodesian government used to
suppress nationalist movements such as the now-ruling ZANU-PF. The
new provision carries a penalty of 20 years’ imprisonment without
the option of a fine. Section 5 has very broad provisions that incorporate
the common law crime of treason. It also makes it an offence to
set up, organise, or advocate for a group or body that may "coerce
or attempt to coerce the Government". The law further prohibits
any person to support, assist or even threaten such action, with
or without the threat of violence. While the Constitution states
that the rights to free expression, association and assembly may
be limited in the interests of defence, public order or public safety,
I would argue that acts of passive resistance and civil disobedience
outlawed under POSA would not affect such interests, and are not
reasonably justifiable in a democratic society.
Section 15 of
POSA deals with publishing or communicating "false statements"
considered prejudicial to the State. Subsection 15(1) of POSA makes
it a criminal offence for a person inside or outside the country
to communicate a statement that is wholly or materially false, and
which:
- Promotes
public disorder or endangers public safety
- Adversely
affects the defence or economic interests of Zimbabwe
- Undermines
public confidence in the security forces
- Disrupts
any essential service
Proof that the
statement was intended to cause any of the above is enough to bring
about a conviction, which carries a fine of Z$100 000 and / or a
five year prison sentence. The law applies not only to mass media,
but also to reports produced by businesses and other civil society
organisations. This false statements provision is a re-enactment
of section 50 of LOMA, but takes into account the Supreme Court’s
judgment in Chavunduka & Anor –v- Minister of Home Affairs &
Anor, (see ‘Free Expression and the Judiciary’ below) in which section
50 of LOMA was ruled to be in contravention of Section 20 of the
Zimbabwean Constitution.
POSA’s subsection
15 (2) prohibits the publication of a statement by a person who
knows the statement to be false, or who does not have reasonable
grounds for believing the statement to be true, if the statement
gives rise to one of the four consequences listed above. By going
beyond defence, public safety, public order and the country’s economic
interests, the subsection exceeds the permissible limits set out
under section 20(2) of the Constitution. This offence is punishable
even where the accused person thought their statement was true,
if the court finds that the person did not have reasonable grounds
for believing the statement to be true.
Increasingly
the authorities have used Section 15 against the private media,
as well as civil society leaders and those perceived to support
the opposition. In most instances, charges have been dropped on
the advice of the Attorney General’s office. But the on-going threat
of the use of POSA doubtless has a chilling effect on the government’s
critics.
Meanwhile, section
16 of POSA deals with issues of undermining authority of, or insulting
President, and is taken from section 46 of LOMA. Section 16 prohibits
the making, publicly and intentionally, of any false statement (including
an act or gesture) about or concerning the President or Acting President
if the person knows or realises that there is a risk or possibility
of engendering feelings of hostility towards or causing hatred,
contempt or ridicule of the President / Acting President, whether
in their official or personal capacity. It is also an offence to
make abusive, indecent, obscene or false statements about the President.
None of these terms are defined. Zimbabwe has an Executive President
and therefore it is perfectly permissible for him to come under
public scrutiny and criticism as the politician responsible for
the policies and practices of the government.
In terms of
section 24 of POSA, anyone organising a public gathering has to
give the police at least four days’ notice. Many police stations,
whether deliberately or by mistake, interpret this provision to
mean that the organiser must apply for, and obtain police permission
to hold a gathering, whereas the law simply requires notification.
Police have been broken up many gatherings on the basis of this
provision.
The Broadcasting
Services Act (BSA)
Promulgated following attempts by Capital Radio to go on air in
2000, BSA
establishes the Broadcasting Authority of Zimbabwe (BAZ), which
grants broadcasting licenses. As with MIC, the Minister appoints
the BAZ board, which has yet to license a private or community broadcaster.
Under the BSA, it is an offence to broadcast without a license,
and only citizens ordinarily resident in Zimbabwe, or a body corporate
whose controlling interest are held in Zimbabwe, can apply for a
license. Contravention of the law attracts a fine of Z$5 million
and / or two years imprisonment.
The BSA further
requires a broadcaster to reserve, free of charge, one hour of programming
a week for the government to explain its policies. At least 75%
of a broadcaster’s programming must be produced either locally or
elsewhere in Africa.
The Criminal
Law (Codification and Reform) Act
The Criminal Law (Codification and Reform) Act was gazetted on June
2, and is anticipated to come into force on January 1 2006. The
Act will introduce stiffer penalties than those initially provided
for in POSA and AIPPA.
Section 31(a)
of the Act is almost a carbon copy of the "false statements"
provisions of POSA, but provides for fines of up to Z$2,500,000
and / or 20 years imprisonment, whereas POSA provides for fines
of Z$100 000 and / or five years in jail. Section 31(b) mirrors
Section 80 of AIPPA, and deals with the communication of "falsehoods".
Whilst AIPPA provides for penalties of a Z$400,000 fine or a two
year jail term, the new Act states that anyone convicted under section
31 will be liable to 20 years in prison or a fine of Z$2,500,000.
Section 33 of
the Codification is similar in all respects to Section 16 of POSA,
and deals with "undermining authority of, or insulting the
President". Under POSA, those convicted for such offences are
liable to be fined Z$20,000 and / or a one-year jail term. The Codification
Act increases the penalties to a Z$200,000 fine and / or one year’s
imprisonment. When considering the Bill, the Parliamentary Legal
Committee noted that Section 33 was unconstitutional. However, Parliament
chose to reject the committee’s report.
General Laws
Amendment Bill
This Bill
– currently before Parliament’s Legal Committee - seeks to tighten
POSA still further by increasing the penalties for those convicted.
The Bill, that aims to amend several other Acts, affects 22 sections
of POSA. The proposed amendments seek to increase the fine imposed
under Section 16 of POSA (insulting / undermining the authority
of the president) from Z$20 000 to $2 million. The penalty for those
convicted under Section 15 (false statements) will now be Z$10 million
and / or five years in prison. The maximum fine for unauthorised
public gatherings (section 24) will increase to Z$10 million.
The Official
Secrets Act (OSA)
The OSA is a pre-independence statute that seeks to limit what official
information can be made public. The Act prohibits communication
of any official information by any civil servant. Communication
of such information by anyone who state officials may have entrusted
with it in confidence is also a crime. Under the Act, it is an offence
to communicate official information unless authorised to do so by
a competent authority. However, the Act does not say which authority
can authorise the disclosure of official information.
OSA also criminalises
communication with "foreign agents", the definition of
who includes people suspected of having committed crimes in Zimbabwe
or elsewhere that are prejudicial to the state. At times the Act
has been used to cover up the blunders and improprieties of government
officials.
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