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AIPPA: African Commission
August 28, 2009
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.
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.
however, ruled and recommended that:
79 and 80 of AIPPA be repealed
- The offence
relating to accreditation and the practice of journalism should
- 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
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.
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.
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.
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.
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
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.
the MISA-Zimbabwe fact
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