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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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