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Another constitutional challenge against the Broadcasting Services Act
MISA-Zimbabwe
October 05, 2007

The Zimbabwean Supreme Court on 4 October 2007 postponed indefinitely yet another constitutional challenge against the Broadcasting Services Act (BSA) after the government challenged the suitability of Harare lawyer Terrence Hussein to represent a company contesting Zimbabwe Broadcasting Corporation's monopoly on broadcasting frequencies in the country.

Hussein is representing the applicants, Ndabenhle Mabhena and Manala (Pvt) Limited in a matter against three respondents namely Zimbabwe Broadcasting Corporation (ZBC), Broadcasting Authority of Zimbabwe (BAZ) and Transmedia.

The applicants are seeking an order declaring that Section 38 of the BSA is inconsistent with Section 20 of the Constitution of Zimbabwe. Section 38 of the Broadcasting Services Act states that all frequencies allocated immediately before the date of the commencement of the BSA would continue to be operational exclusively to the ZBC.

In Zimbabwe there are only two VHF (Very High Frequency) television channels and both of them are held by ZBC. There are also three other available television channels known as UHF (Ultra High Frequency).

The applicants are arguing that essentially what it means is that when one wants to start a television station they would have to set up UHF transmission systems parallel to the one held by Transmedia for VHF television. Applicants further argue that it is not an option to go on UHF due to the funds involved while ZBC is sitting on two VHF channels and using only one.

The applicants also contents that ZBC is now a private limited company and there is no justification for it to tax the public in the form of licence fees. They argue that collecting licence fees from the public is a ploy to perpetuate and fund the monopoly ZBC currently enjoys.

In response, the respondents argue that the other VHF channel has been reserved for National Television which the applicants argue has not taken off the ground.

The Ministry of Information in its response is arguing that the retention of frequencies was not unconstitutional because they were providing a public service.

The ministry contends that the applicant should wait for BAZ to invite applicants for other frequencies that become available.

It is also the ministry's contention that there is nothing wrong with ZBC collecting licence fees because it is a public broadcaster.

Before the commencement of the hearing on 4 October 2007, Information and Publicity Minister Sikhanyiso Ndlovu made a chamber application seeking to bar Hussein from representing the applicants on the grounds of conflict of interest. Hussein has previously represented the President Robert Mugabe, the ruling party and the government of Zimbabwe.

"Hussein should not represent the respondents (who are the applicants in the main application) because of serious conflict of interest, which arises from our previous relationship in regard to the formulation and drafting of the Broadcasting Services Act, which he now attacks through the respondents," said Ndlovu in his papers.

The minister also attached to the application an affidavit deposed by the Secretary for Information and Publicity George Charamba to support his contention. Charamba, in his affidavit, explained the role played by Hussein in crafting the Broadcasting Services Act.

"It is surprising that Hussein, for reasons best known to him, has decided to exploit the information given to him in confidence and such a thing should not be allowed as it gives rise to a conflict of interests of a serious nature," said Charamba.

He further argues that if Hussein is allowed to represent the respondents, this would seriously harm not only the minister but also the relationships between lawyers and their clients as the protection of clients' confidential information will play second fiddle to the economic interests of lawyers.

"Indeed, there is a serious conflict of interest in this matter and Hussein and his practice should recuse themselves, failure of which this matter should be dismissed," added Charamba.

But Hussein, who was served with a copy of the application on 3 October 2007, told the court that he was strenuously opposing the application by the minister saying he was raising serious issues of ethics.

"This is not a proper forum to raise issues of ethics. The minister should have raised the matter with the Law Society of Zimbabwe," said Hussein.

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