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Amend AIPPA: African Commission
MISA-Zimbabwe
August 28, 2009

The African Commission on Human and Peoples' Rights (ACHPR) has ruled that the Zimbabwean government should repeal sections 79 and 80 of the repressive Access to Information and Protection of Privacy Act (AIPPA) which contravenes Article 9 of the African Charter on Human and People's Rights.

It also ruled that statutory media regulation as epitomised by the now defunct Media and Information Commission (MIC) was contrary to the principle of media self-regulation as enunciated under the African Charter to which Zimbabwe is a state party.

As part of its ruling, the Commission also ordered that it be furnished with a report pertaining to the implementation of its recommendations within six months from the date of its judgment.

The ruling was submitted to the Executive Council of the African Union at its 15th ordinary session held in Sirte, Libya, on 24 - 30 June 2009.

This followed a communication (complaint) filed against the government by the Independent Journalists Association of Zimbabwe (IJAZ), MISA-Zimbabwe and the Zimbabwe Lawyers for Human Rights (ZLHR) as the complainants. The complainants successfully challenged the legality of sections 79 and 80 of AIPPA.

Section 79 deals with the compulsory accreditation of journalists and the optional accreditation of part time or freelance journalists. Section 79 (3) prohibits the accreditation of non- citizens, although they may be granted temporary accreditation for a period not exceeding 60 days. Section 80 deals with issues of abuse of journalistic privileges in relation to publication of falsehoods and injurious statements.

In the communication recorded as 297/2009, the complainants challenged the constitutionality of the requirements compelling journalists to be accredited, criminalisation of offences relating to abuse of journalistic privileges and statutory regulation of the profession. The applicants contended that these aspects of the Act were incompatible with the provisions of Article 9 of the African Charter.

In its defence, the state argued that the provisions in question did not violate Article 9 of the Charter saying there was nothing prejudicial with the registration and accreditation of journalists. They also argued that the process of accreditation was not onerous, that the right to freedom of expression was not absolute, and that the practice of journalism did not place it beyond statutory regulation.

The Commission, however, ruled and recommended that:

• Section 79 and 80 of AIPPA be repealed
• The offence relating to accreditation and the practice of journalism should be decriminalised
• AIPPA should be reformed to conform with Article 9 of the African Charter and other principles and international human rights instruments
• The government should adopt legislation that provides a framework for self -regulation by journalists

The Commission said compulsory accreditation of journalists is deemed at both national and international levels to be a hindrance to the effective enjoyment of the right to freedom of expression.

Compulsory licensing or accreditation also amounted to a restriction on the freedom to practice the journalistic profession and aims to control rather than regulate the profession of journalism. The Commission further observed that registration should be for the betterment of the welfare of journalists and that the provisions of AIPPA were inconsistent with this objective owing to the onerous requirements imposed.

The Commission made extensive reference to the provisions of other international instruments on freedom of expression. Reference was made to Article 10(2) of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights, and Article 10 of the European Convention as well as the Declaration of Principles on Freedom of Expression in Africa.

On that basis the ACHPR ruled that any restriction of freedom of expression should be provided for by law and must serve a legitimate interest and be necessary in a democratic society. The restrictions imposed by AIPPA did not fall within the realm of this basic spectrum.

The Commission noted that a regulatory body such as the now defunct Media Information Commission whose regulations were drawn up by government cannot be claimed as self- regulatory. "Any act of establishing a regulatory body by law brings the body under the control of the state, hence the need to have a legislative framework that provides for self- regulation by journalists," observed the Commission.

The government has since amended AIPPA only to replace it with yet another statutory body in the form of the Zimbabwe Media Commission and in terms of Constitutional Amendment No 19 of 2008. This is in breach of the provisions of the African Charter which states that self- regulation is the best system of effecting professionalism in the media.

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