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MISA-Zimbabwe statement on media freedom
MISA-Zimbabwe
June 25, 2010

Introduction

A free media is a critical component in the creation and maintenance of a healthy and vibrant democracy. It plays a key monitoring, evaluation and watchdog role over both private and public institutions.

In functioning democracies, a free media thus contributes to greater accountability, good governance and socio-economic and political development. However, to achieve this feat, the constitution as the supreme law of the land ought to explicitly guarantee media freedom as well as the citizens' full enjoyment of their right to freedom of expression and access to information through a free, diverse, pluralistic and independent media.

Although Section 20 (1) of the Zimbabwean constitution makes provision for the right to freedom of expression, it does not sufficiently guarantee and protect this right and other media freedoms. This leaves room for Zimbabweans to infer on what their entitlements are under this particular provision. To make matters worse, Section 20 (2) then imposes wide limitations to the enjoyment of the same rights.

It is therefore MISA-Zimbabwe's strong submission on the need for an overhaul of repressive media laws such as the Access to Information and Protection of Privacy Act (AIPPA), Public Order and Security Act (POSA), Broadcasting Services Act (BSA) and Criminal Law (Codification and Reform) Act, among others as well as Section 20 of the current constitution and Section 100N-P inserted by Constitutional Amendment No. 19. This will ensure that the country's statutes fully provide for the protection of the aforementioned rights.

Please find below justifications on why Zimbabwe needs a new constitutional provision that explicitly guarantees media freedom, freedom of expression and access to information.

No explicit guarantee of freedom of information and access to information in s20

(1) of the Zimbabwean Constitution.

One of the shortcomings of the Zimbabwean constitution is that whilst it makes mention of the right to freedom of expression, it does not however explicitly guarantee the right to access to information as well as media freedom as stated in key human rights instruments such as the African Charter on Human and People's Rights and the Banjul Declaration of Principles of Freedom of Expression in Africa. Instead, Section 20 (1) vaguely infers to these rights which it lumps together as follows:

No person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

Legal precedent has clearly demonstrated the inadequacy of Section 20 as it can and has been construed in a manner that abridges the right to freedom of the media because of its open-ended construction, which permits varied interpretations as to whether or not freedom of expression necessarily covers media freedom.

Limitations clause too widely drawn.

The limitations clause is too widely drawn such that it permits an abridgement of the very rights that the constitution ought to protect due to its overbroad limitations clause provided for under Section 20 (2).

MISA-Zimbabwe is cognisant of the fact that the right to freedom of expression is not an absolute and unlimited right. However, the restrictions in the Zimbabwean Constitution are too widely drawn. Restrictions on freedom of expression can be imposed in the interests of defence, public safety, public order, the economic interests of the State, public morality or public health.

In addition these can be imposed for purposes of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings; preventing the disclosure of information received in confidence; maintaining the authority and independence of the courts or tribunals or [Parliament]. Other restrictions pertain to regulating the technical administration, technical operation or general efficiency of telephony, telegraphy, posts, wireless broadcasting or television or creating or regulating a monopoly in these fields; in the case of correspondence, preventing the unlawful dispatch therewith of other matter; or that imposes restrictions on public officers.

In this respect the constitution therefore permits much wider limitations on freedom of expression than is permitted under international law in that it sets out several grounds for such limitations. While the constitution affords the right to freedom of expression as set out in Section 20(1), it nevertheless gives the state the power to take away that same right through the over-broad limitations clause which enables the state to justify its abridgement of the right through the plethora of limitations imposed on the right.

No safeguard against abuse/erroneous application of the limitations clause.

The guideline stated in Section 20 (1) that limitations should be "reasonably justifiable," is an inadequate safeguard against wide and arbitrary interpretations which may permit the infringement of the constitutionally guaranteed rights. Instead, there should be a qualification that such limitations ought to be "necessary in a democratic society" as employed by other countries and as set by regional and international human rights instruments.

The provision in s20 (1) falls way below set standards of human rights instruments and provisions in other constitutions.

In its current form, Section 20 does not meet the standards of a number of regional and international human rights instruments on the right to freedom of expression, media freedom and access to information. Zimbabwe is a signatory to instruments such as the Banjul Declaration on Principles of Freedom of Expression in Africa. On the other hand, the South African, Malawian, Namibian and Mozambican constitutional provisions on freedom of expression amply demonstrate how the Zimbabwean provision is retrogressive due to the absence of explicit provisions for media freedom and the right to access information. These are clearly crafted such that each right is separately provided for and thus can be independently claimed.

An example is the Mozambican constitution which provides as follows:

All citizens shall have the right to freedom of expression and to freedom of the press as well as the right to information. Freedom of the press shall include in particular the freedom of journalistic expression and creativity, access to sources of information, protection of professional independence and confidentiality, and the right to publish newspapers and other publications.

Current constitutional provisions perpetuate statutory regulation hamper media freedom

The provisions of Section 100N-P brought in by Constitution Amendment No.19 on the statutory Zimbabwe Media Commission (ZMC), deprives the media of its independence and autonomy. Such a provision should not be part of a democratic constitution as the notion of statutory regulation of the media clearly is an affront to democracy.

On the other hand, this position cannot be altered by other complementary pieces of legislation as they become unconstitutional should they provide for anything inconsistent with the constitution. Therefore, a review of this provision is required.

Lack of explicit constitutional guarantees result in oppressive legislation that violates media freedom and the right to access to information.

The lack of explicit guarantees of media freedom and access to information in the current constitution has a negative cascading effect on media legislation and policies. These have been scantly formulated in a manner that is detrimental to the enjoyment of these rights. This inadequacy is clearly evidenced by the promulgation of repressive of pieces of legislation such as Access to Information and Protection of Privacy Act (AIPPA), Public Order and Security Act (POSA), Official Secrets Act (OSA), Interception of Communications Act (ICA) and the Criminal Law (Codification and Reform) Act, among others.

The provisions of s20 results in wide interpretations prejudicial to the enjoyment of media freedoms

The absence of specific guarantees to the aforementioned rights also has a serious cross-cutting effect on the manner in which the right to freedom of expression is technically construed or interpreted by the judiciary. Legal precedent in Zimbabwe clearly demonstrates that the courts have had to use their discretion to infer these rights within the contemplation of Section 20 and this is unacceptable for a constitution whose provisions should be explicit and certain.

Opportunities presented by present constitution making process

For as long as the constitution does not guarantee media freedom, rights such as access to information and media freedom cannot be enjoyed and let alone be demanded. The constitution making process therefore offers a window of opportunity to address the deficiencies in our supreme law more so as it pertains to media freedom, freedom of expression and access to information given the critical role played by the media in the democratisation process.

Conclusion

It is therefore clear that the need for explicit constitutional guarantees of media freedom, freedom of expression and the right to access to information as well as the promulgation of democratic laws that facilitate the enjoyment of these basic liberties in line with regional instruments on free expression is long overdue. The benchmarks are clearly stated in terms of the African Charter on Human and Peoples Rights (ACHPR), Windhoek Declaration, Banjul Declaration on Principles of Freedom of Expression in Africa and the African Charter on Broadcasting (ACB).

The current constitution making process therefore offers immense opportunity for redress of the deficiencies and shortcomings of the Zimbabwean constitution as it pertains to explicit guarantees on media freedom, freedom of expression and the right to access to information held by both public and private bodies.

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