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Judgment reserved in Daily News case
MISA-Zimbabwe
October 09, 2006

The decision to grant ANZ, publishers of the banned Daily News and Daily News on Sunday, now rests with the High Court, lawyers representing the publishing house argued in Harare on 9 October 2006.

Advocate Eric Matinenga representing ANZ in the matter in which it is seeking a High Court order to be duly licensed, said the licensing authority, the Media and Information Commission (MIC), and the Ministry of Information and Publicity had failed to deal with the application within the stipulated period.

Advocate Matinenga argued before High Court judge Justice Anne Mary Gowora that Section 66 (3) of the Access to Information and Protection of Privacy Act (AIPPA) gave the Commission 30 days within which to respond to an application.

This followed High Court judge Justice Rita Makarau’s judgment in February 2006 in which she ruled that the MIC board chaired by Dr Tafataona Mahoso was biased against the ANZ. Justice Makarau ruled that Mahoso was biased against ANZ, publishers of the banned Daily News and Daily News on Sunday.

The judge said the MIC’s impartiality was tainted by the proven bias of its chairman, thereby barring all members of the Commission’s board from involvement.

Justice Makarau’s ruling was an interpretation of Chief Justice Chidyausiku decision in March 2005 in which he referred to the perceived bias of Dr Mahoso.

Following the ruling, ANZ then filed an application for a High Court order to be duly registered arguing that the Minister of Information and Publicity as the appointing authority of the MIC, can appoint a special board to determine its application for a licence or instruct the MIC secretariat to issue a certificate of registration.

In that judgment, the full bench of the Supreme Court made a finding that the MIC’s conduct towards the ANZ had been biased and would cause apprehension in the mind of an average reasonable person. Matinenga noted that nothing had been done to resolve the matter since Chief Justice Chidyausiku’s and Justice Makarau’s judgments. He submitted that the Ministry had failed to put in place an administration agency to adjudicate over the matter following the two judgments.

Matinenga referred the court to Section 66 of AIPPA which stipulates that applications to be registered should be submitted in AP1 format, accompanied by a business plan and the requisite application and registration fees. Nothing in the opposing papers filed by the MIC and the Ministry showed that ANZ had not met that criteria.

The MIC, represented by Harare lawyer Mercy Chizodza, opposed the application arguing that only the MIC has the power to licence Mass Media Service Providers as the Administrative Authority. She stated that for the court to issue the order prayed for, it would have usurped the powers of the MIC.

Nelson Mutsonziwa of the Attorney-General’s Office, appearing on behalf of the Acting Minister of Information and Publicity, pleaded with the court to refer the matter back to the Minister describing the actions by ANZ as pre-mature. He argued that ANZ had approached his Ministry to enable it to deal with the issue arising out of the Supreme Court judgment and that of Justice Makarau.

He said the Ministry was still considering the matter and that the ANZ had jumped the gun by appealing to the High Court for speedy resolution of the matter.

In his opposing papers, the now deceased Minister of Information Dr Tichaona Jokonya, said AIPPA did not provide for the appointment of an interim committee to adjudicate over the ANZ’s application to be licensed.

The minister argued that he could only appoint an independent committee to adjudicate over the ANZ application if AIPPA is duly amended. 

"The court cannot wash itself off the case like Pontius Pilate. Finality must be drawn to this sorry saga. There is no administrative agency in place to which the matter could be remitted. This is the time to award the applicant the order. The delays will inconvenience Zimbabweans as it delays the right of Zimbabweans to information and freedom of expression provided by the daily publication," said Matinenga.

Justice Gowora reserved judgment indefinitely.

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