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Chronicle of the ANZ case
MISA-Zimbabwe
May 17, 2007

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High Court judge Justice Anne-Mary Gowora's judgment on 9 May 2007 further diminishes hope for the immediate return of the banned Daily News and Daily News on Sunday as it fails to provide the relief that the Associated Newspapers of Zimbabwe (ANZ) was seeking from the courts in its rigmarole legal battle to be allowed to resume publishing.

Justice Gowora's judgment only adds to the agony of the ANZ's struggle to be duly licensed as it acknowledges without granting the relief sought, the bias of the state-controlled statutory licensing body, the Media and Information Commission (MIC), which has fought tooth and nail to block the return of the two publications.

The judge acknowledges, as noted in preceding judgments by the Supreme Court and her colleague Justice Rita Makarau now High Court Judge President, that the MIC's impartiality is tainted by the proven bias of its chairman Dr Tafataona Mahoso, effectively barring all members of the Commission's board from involvement in the matter.

She also found that the Minister of Information and Publicity had no intention of putting in place measures that will ensure that an impartial body is put in place to adjudicate over the application of the ANZ. "Clearly, this would be in violation of the applicant's rights in terms of the Act (Access to Information and Protection of Privacy Act) and the Constitution," she said.

Strikingly, Justice Gowora, notwithstanding her reservations with the Minister's intentions advises ANZ to apply for an order for the minister to be directed to take the necessary administrative action to ensure the application is duly considered and determined.

This route if considered by the ANZ will bring to almost 50 the number of legal challenges characterised by a myriad of appeals and counter appeals which are directly linked to the publishing house's bid to be duly licensed since its closure on 11 September 2003. That the matter will be speedily dealt with in the event of the ANZ filing for such an order can only be a matter of conjecture given that it took almost nine months since September last year for Justice Anne Gowora to pass judgment in the matter.

Worse still, the Ministry of Information through the now deceased Minister of Information Dr Tichaona Jokonya, indicated that it would only appoint the desired impartial body if the offending Access to Information and Protection of Privacy Act (AIPPA) is duly amended to so empower the Minister.

Without prejudicing the ANZ's case, it is nevertheless disturbing if not intriguing that the matter remains unresolved despite the courts having ruled in its favour on at least five different occasions which should have brought the matter to its finality.

On 18 September 2007 High Court Judge Justice Yunus Omerjee ruled that the ANZ could resume publishing. Omarjee's ruling followed an urgent application by the newspaper organisation to have its equipment seized by the police returned and to be allowed to resume publication. Omerjee noted that the Supreme Court's "dirty hands" judgment on 11 September 2003 had not convicted the paper of a criminal offence but had merely declared that the newspaper was acting outside the law by refusing to be registered pending the outcome of its challenge on the constitutionality of AIPPA.

The company's equipment could only be seized pursuant to a court order, said the judge. Justice Omerjee further noted that ANZ had started operating within the law from the day it lodged its application for registration with the Media and Information Commission following the Supreme Court judgment in September 2003.

The MIC refused to register the ANZ saying it had openly flouted the law by initially operating without being registered under AIPPA.

The ANZ appealed to the Administration Court and on 24 October 2003 Judge Michael Majuru ruled that the MIC's refusal to allow the Daily News to operate was illegal. Justice Majuru who was later to escape into exile in South Africa following his judgment further ruled that the MIC was also improperly constituted.

The judge ruled that if the MIC was not properly constituted by 30 November 2003 as well as not having made a determination in the ANZ case by that date, the publishing company would be deemed duly licensed. His judgment saw the ANZ resuming publication and The Daily News hit the streets for a day on 25 October 2003.

The MIC would have none of that and the police reoccupied its offices forcing it to stop publishing.

Armed police officers refused to vacate the paper's offices and prevented staff from accessing its offices. The police also refused to return The Daily News' computers and other equipment, allegedly seized as exhibits

What then followed was a series of appeals and counter appeals by the ANZ and MIC respectively. This turn of events culminated in Judge Majuru recusing himself from the ANZ case. However, his earlier judgment was on 19 December 2003 upheld by his colleague Judge Selo Nare but the police refused to vacate the Daily News' offices.

The High Court on 9 January 2004 ordered the police to vacate its premises but the police refused to budge.

On 21 January 2004 the High Court again ordered the police to vacate its premises and the Daily News appeared on the streets on 22 January 2004 only to stop publishing following a Supreme Court judgment in the Independent Journalists Association (IJAZ) case challenging the constitutionality of AIPPA. In a judgment released on 5 February 2004, the Supreme Court upheld the provisions of AIPPA as constitutional.

ANZ journalists had previously refused to file for accreditation, just as their newspaper had not applied for registration, on the basis that the law was unconstitutional. At the time of the IJAZ judgment, ANZ journalists were not registered. As a result, they had no choice but to stop working until they gained accreditation. As a result, The Daily News stopped publishing marking the beginning of a chain of court challenges for it to be duly registered.

Gleaned from this recent turn of events, it would appear that finality and the justice sought through these court challenges is not on the horizons anytime soon if Justice Gowora's judgment in which she notes the Executive's reluctance to deal with the matter conclusively is anything to go by.

MISA-Zimbabwe is naturally concerned that the courts have yet again failed to bring finality to the five-year old legal impasse seriously prejudicing the publishers and employees of the Daily News and Daily News on Sunday who have been in limbo since the closure of the two publications in September 2003.

Viewed against the favourable judgments during the course of the multiplicity of the legal challenges mounted by the ANZ, one cannot help but feel that the agony endured and the delay in conclusively deciding the matter gives apt meaning to the adage: justice delayed is justice denied.

This raises questions on whether the judiciary is abdicating from its responsibility of dispensing justice and whether justice is being deliberately denied.

Please find attached a full Chronicle of the ANZ Legal Battle from September 2003 to May 2007.

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