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constitutional challenge against the Broadcasting Services Act
October 05, 2007
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
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.
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
"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.
the MISA-Zimbabwe fact
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