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Africa Commission to rule on AIPPA
MISA-Zimbabwe
May 30, 2007

The Access to Information and Protection of Privacy Act (AIPPA) faces an acid test on its compatibility with the African Charter on Human and Peoples' Rights after its Commission agreed with MISA-Zimbabwe that there was need to bring finality to a communication filed before it in 2005.

The Independent Journalists Association of Zimbabwe (IJAZ), MISA-Zimbabwe and the Zimbabwe Lawyers for Human Rights (ZLHR) submitted a communication seeking a prayer for an opinion by the African Commission on Human and Peoples Rights (ACHPR) to the effect that Sections 79 (1) (on accreditation of journalists) and 80 (criminalisation of falsehoods) of the Access to Information and Protection of Privacy Act (AIPPA) contravene Article 9 (on Freedom of Expression) of the African Charter on Human and Peoples' Rights.

The complainants also prayed for a directive to the government of Zimbabwe to ensure that the said sections are repealed or amended to expunge accreditation of journalists and criminalisation of falsehoods.

During arguments on the matter during the 38th Session held in November 2005, the Commission was advised by the then Director of Public Prosecutions Loice Matanda-Moyo that AIPPA was being reviewed by the Minister of Information and Publicity with a view to ensuring removal of any infractions of the African Charter on Human and People's Rights. It was conceded that the legislation violated the right to freedom of expression

During the 40th Session held in Banjul, The Gambia in November 2006, the ACHPR deferred this Communication to the 41st Ordinary Session. This followed a request by the government for the Commission to defer the matter so as to allow consultations between itself and MISA-Zimbabwe to proceed in a harmonious manner. The government had also argued that the deferment "will aid in the confidence building necessary for the consultative process".

However appearing on behalf of the complainants on 25 May 2007, MISA-Zimbabwe's Legal Officer Wilbert Mandinde argued that no progress had been made by the government in either amending or repealing AIPPA. He submitted that instead the police had become more vicious in their application of AIPPA.

"In the circumstances, we request the Commission to come up with a decision on the Sections under challenge based on our written submissions to the Commission. This, we hope, will eventually put to rest the merry-go-round situation which we have witnessed on cases involving AIPPA in the Media and Information Commission, the Administrative Court, the High Court and the Supreme Court over the past five years," said Mandinde.

However Policy and Legal Research Director in the Ministry of Justice, Legal and Parliamentary Affairs Margaret Chiduku who appeared on behalf of the Respondent State denied the assertion that no progress had been made. Without elaborating, she stated that there is movement behind the scenes.

She then advised the Commission that the government had filed supplementary submissions which she requested that the Commission should also consider before coming up with a decision on the matter. The Secretariat of the Commission denied having received the supplementary submissions in question.

The Commission then ruled that it would now make a decision on the basis of the papers filed by both parties.

"Madam chairperson, I am of the opinion that this Commission can make a determination based on the information already provided by both parties. We have to bring finality to this case," said Commissioner Tom Nyanduga.

Irene Petras and Dzimbabwe Chimbga of the Zimbabwe Lawyers for Human Rights (ZLHR) co-appeared with Mandinde while government officials Lawrence Murasi, Stewart Nyakotyo and Gill Makarati co-appeared with Chiduku.

The Commission is now expected to come up with a decision on the sections under challenge. However, before their decision is made public, the Commission will present its findings as part of its activity report for adoption to the African Union Council of Ministers' meeting which takes place before the African Union's Heads of States Summit.

Meanwhile, in a separate matter, ZLHR has requested the ACHPR to immediately serve the government of Zimbabwe with a copy of Provisional Measures that the Commission issued against the government in 2004. The ACHPR's secretariat could not explain why the provisional measures were not served on the government of Zimbabwe.

Provisional Measures are actions which have to be taken to avoid irreparable damage or harm to victims of an alleged violation of the Charter.

ZLHR and the Associated Newspapers of Zimbabwe publishers of the Daily News and Daily News on Sunday approached the Commission seeking an order for the return of equipment which was confisticated by the police when the Daily News was closed. Despite the existence of various favourable court orders by the Zimbabwean courts, the police have simply refused, failed or neglected to comply with the order.

The 41st session of the ACHPR will end on Wednesday, 30 May 2007.

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