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Statement on the Zimbabwe Media Commission's statutory functions and powers
MISA-Zimbabwe
June 15, 2009

On Sunday 31 May 2009 the Standing Rules and Orders Committee placed an advertisement in The Sunday Mail calling for applications from suitably qualified individuals wishing to be considered for appointment into the Zimbabwe Media Commission, setting into motion plans to set up the long overdue Commission.

The ZMC is set to replace the now defunct Media and Information Commission (MIC). In terms of the Access to Information and Protection of Privacy Act (AIPPA) as amended in January 2008, Section 38 of the statutory instrument notes the creation of the Zimbabwe Media Commission (ZMC), which replaces the Media and Information Commission. Section 38 reads: . . . established is a commission to be known as the Zimbabwe Media Commission, which shall be a body corporate capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that bodies corporate may by law perform . . .

On the other hand, Zimbabwe Constitutional Amendment 19, which clearly takes precedence over any provision of AIPPA that is inconsistent with it, stipulates the following: There is a Zimbabwe Media Commission consisting of a chairperson and eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders. That the ZMC now exists at law, cannot be disputed vis-à-vis the controversy pertaining to the continued existence of the MIC which was, however, finally put to rest in the High Court case of Stanley Gama and Others v Ministry of Media, Information and Publicity, where Justice Bharat Patel ruled that the MIC is now defunct by virtue of the 11 January 2008 amendments to AIPPA which replaced the MIC with the ZMC.

Functions

In terms of Section 100 N the functions of the newly created, but yet to be constituted ZMC shall include; (a) to uphold and develop freedom of the press; and

(b) To promote and enforce good practice and ethics in the press, print and electronic media, and broadcasting; and

(c) To ensure that the people of Zimbabwe have equitable and wide access to information; and

(d) To ensure the equitable use and development of all indigenous languages spoken in Zimbabwe; and

(e) To exercise any other functions that may be conferred or imposed on the Commission by or under an Act of Parliament.

Powers

The constitutional Amendment No 19 further notes that, an Act of Parliament may confer powers on the Zimbabwe Media Commission, including power to

(a) Conduct investigations and inquiries into

(i) Any conduct or circumstance that appears to threaten the freedom of the press; and

(ii) The conduct of the press, print and electronic media, and broadcasting;

And

(b) The disciplinary action against journalists and other persons employed in the press, print or electronic media, or broadcasting, who are found to have breached any law or any code of conduct applicable to them.

MISA Zimbabwe Opinion

There are a number of aspects that arise from the advertisement calling for nominations to the media commission. There are a number of grey areas pertaining to the appointments and the processes leading to such appointments.

Public Interest

One apparent defect with the advertisement clearly lies in the fact that there is no set process envisaged of receiving recommendations for the commissioners from the public or civil society through a defined consultative framework in the selection process. Yet, the supposedly independent media commission ought to be an essentially public body serving the public interest and should come into being through public participation. There is also a missing link in terms of the transparency of the process between the time of lodging the applications in question and the final appointments as there is no provision that obliges the Standing Rules and Orders Committee (SROC) to publish the names of those who submit their applications, those eventually interviewed or those nominees that are subsequently short listed for presidential consideration. It would also be in the public interest for the SROC to publicly make known justifications regarding the rejection or subsequent selection of short listed nominees subject to presidential consideration.

Regulations

While the SROC derives its legal authority in terms of Constitutional Amendment No 19 there are no statutory regulations that establish the framework for the appointment of commissioners to the anticipated ZMC. Statutory instrument 185 of 2008 which is cited as the Access to Information and Protection of Privacy (Amendment) Regulations that had existed hitherto were only in respect of appointing commissioners to the MIC. These regulations have since fallen away with the demise of the MIC and are no longer applicable with respect to the ZMC as the two bodies are separate legal entities. What this implies is that, unless this position is sooner rectified the resultant commission will be legally defective as there is no legal basis that sanctions the appointment of the Commissioners to the ZMC.

Additionally, the nomination of candidates for appointment to bodies outside parliament is a relatively novel function for the SROC that is only coming into force with the advent of Amendment No.19. Traditionally, the preserve of the SROC is to appoint members to Parliamentary Portfolio Committees and the Select Committee on the Constitution.

However, at face value as per the advertisement in question, the process being employed does not preclude the SROC from choosing [or not choosing] applicants on partisan grounds to consolidate and further their influence within the transitional arrangement. Also worth noting is the fact that in terms of section 100N there is a provision that reads: To exercise any other functions that may be conferred or imposed on the Commission by or under an Act of Parliament". The import of this provision is actually quite scary, as it essentially means that the other provisions can be read from outside those expressly stated by any Act of Parliament because there is no specific Act that is cited although this presumably refers to the amended AIPPA. In addition parliament can actually sit and craft another Act that materially alters or amends one or a number of provisions that have already been defined within section 100N and it would still be legal and constitutional because the present law is too open ended so as to allow such encroachment.

Conclusion

It is MISA- Zimbabwe's considered view that these issues of concern should be revisited and considered in the public interest and to foster accountability on the part of public bodies and institutions. MISA-Zimbabwe reiterates its position that the setting up of the statutory ZMC should be taken as a temporary measure that will ultimately give way to self-regulation of the media as the best way forward and as espoused under the Banjul Declaration on the Principles of Freedom of Expression in Africa.

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