By Tawanda Hondora
IN a death blow to media freedom and the right of the public to access information through a medium of their choice, the Supreme Court last Thursday passed judgement in the constitutional
petition filed by the Independent Journalists Association of Zimbabwe (Ijaz). The judgement, written by Chief Justice Chidyausiku, to which judges Cheda, Ziyambi and Malaba concurred, was palpably wrong.
The majority reasoning was, with respect, contradictory. Chidyausiku stated that the provision in the Access to Information and Protection of Privacy Act (Aippa) which compels journalists to register with the Media and Information Commission (MIC) as a condition to practise as journalists was constitutional. Justice Sandura, the longest-serving judge in the Supreme Court, in a persuasive dissenting judgement, disagreed.
What is immediately striking about the judgement is that Justices Cheda, Ziyambi and Malaba, in such a significant constitutional matter did not write individual opinions. Instead they merely concurred with Chidyausiku.
Judges are civil servants whose salaries and perks come from taxpayers’ money. Why should we appoint so many judges when their opinions on matters, some so fundamental to the country’s constitutional jurisprudence, is no more than “I agree”?
However, this serious concern pales when one considers the manner and grounds upon which Chidyausiku based his claim that Section 79 of Aippa – requiring journalists to register with the MIC – is constitutional.
Freedom of expression, of which media freedom is an integral part, is guaranteed under Section 20(1) of the constitution. Section 20(2) of the constitution provides the six grounds upon which this freedom, fundamental to the system and values of democracy, may be limited by law. In his affidavit to the Supreme Court Information minister Jonathan Moyo claimed that it is in the national security and economic interest of Zimbabwe to limit media freedom through a licensing system administered by him and the MIC. In the same case, the former Attorney-General of Zimbabwe, Andrew Chigovera, on behalf of the government claimed that the Aippa provision was necessary in the interests of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings.
In line with established rules of law, the question before the Supreme Court was therefore whether any of the specific but different grounds given by Moyo and Chigovera were constitutionally valid reasons to abridge media freedom through the MIC licensing regime? In other words: were the defences given by the government to the Ijaz complaint about the compulsory licensing requirement constitutionally valid?
Chidyausiku ignored the baseless and unsubstantiated defences proffered by the government. Instead, he declared that it is constitutional to compulsorily license journalists through the MIC in the interests of public order.
Section 20(2)(a) lists public order as one of the grounds that may be used to limit freedom of expression, but only if such limitation is “reasonably justifiable in a democratic society”. It is highly unusual for a judge to raise to the advantage and benefit of one of the litigants a defence that was not raised by the relevant party concerned.
Our system of justice is adversarial and not inquisitorial in nature. On page 17 of his judgement, Chidyausiku proclaimed that “an applicant’s case as a general rule stands or falls on his or its founding affidavit”.
Does the respondent’s (or government’s) defence stand or fall on its opposing affidavit? Or is it now the rule that the court will raise defences for and on behalf of the government, even though such defence was not established in the papers before the court? So why did Chidyausiku, Cheda, Malaba and Ziyambi amend one of the cardinal rules that they accept they are obliged as judges to follow?
In addition, Chidyausiku said that even though he considered the requirement that accreditation of journalists must be approved by the Minister of Information and his permanent secretary to be unconstitutional, he would not make such a declaration because Ijaz had not sought to have the section declared unconstitutional.
One wonders why the judge then created a defence to the benefit of Moyo, the MIC and the Attorney-General, which none of them had raised in their affidavits?
And for his unfounded proposition that the compulsory registration of journalists as a precondition for practising was universally recognised, Chidyausiku relied on one Sri Lankan case. He ignored cases from within the Southern African region, which for instance declared unconstitutional the proposed use of similar licensing systems to control the print media. To make it worse, the Sri Lankan case did not support Chidyausiku’s conclusion that it is constitutional to limit print media freedom through a compulsory licensing regime. It evaluated the validity of regulating the electronic and not the print media through a licensing regime.
Chidyausiku’s reasoning on the merits of the case was even more curious. He concluded that freedom of expression includes press freedom but freedom of expression does not envisage a right or freedom to practise as a journalist. I ask: how is press freedom to be exercised if not through freedom to practise, among other things, as a journalist? He also said that the constitution does not guarantee the individual a right to use any means of his or her choice to exercise freedom of expression. To understand Chidyausiku’s disturbing reasoning a question must be asked: what means do people use to exercise their freedom of expression?
The answer is rather obvious. People use speech or correspondence, such as newspapers, books, or any written material; and the electronic transmission of signals such as radio, television, satellites, or even the telephone. And he noted, somewhat blithely, that he “saw nothing in the language of Section 20(1) of the constitution that suggests that the legislature intended to confer on an individual a constitutional entitlement to work as a journalist”.
I ask: does the legislature confer on an individual a constitutional entitlement to work as a cartoonist or as an artist, or as an author of books?
According to Chidyausiku the constitution does not protect the “means” through which freedom of expression is exercised. This means the Chief Justice believes that a person enjoys freedom of expression but not the right to use any means of his or her choice in exercising such freedom.
Taken to its logical conclusion, his argument represents that Section 20 of the constitution grants a theoretical freedom of expression but without a corresponding freedom to speak or write as a means of exercising the freedom.
How does one receive or impart ideas if not through the use of “means” of communication? The constitution specifically protects the individual’s freedom from interference with his or her correspondence. Isn’t the use of correspondence a means through which the exercise of freedom of expression is manifested, specifically protected under Section 20 of the constitution? So why does Chidyausiku claim that Section 20 does not protect the individual’s discretion to use any means of his or her choice in the exercise of freedom of expression?
This judgement makes a nonsense of the guarantee of freedom of expression contained in Section 20(1) of the constitution. It has become a disturbing habit for some judges to blithely ignore their previous judgements. When Econet challenged the monopoly enjoyed by the Post and Telecommunications Corporation in the provision of telephone services, the Supreme Court declared that the monopoly violated freedom of expression. Do we not use the telephone system as a means of exercising the self-same freedom of expression? The same Supreme Court has even declared that it is a violation of freedom of expression to unreasonably restrict prisoners’ rights to exercise their freedom of expression through writing and receiving letters. Therefore in diverse previous judgements a Supreme Court bench composed of seasoned senior judges has ruled on the need to guarantee the right of individuals to use all lawful means to exercise their God-given freedom to communicate.
Chidyausiku, following on Moyo’s argument in his opposing affidavit, claimed that it is an acceptable practice to accredit journalists. What he failed to consider is whether democracies use a politically compromised entity such as the MIC to license journalists. Even if three members of the MIC are appointed from a list of nominees submitted by an association of journalists, the question remains: what security of tenure of office do such members enjoy? Well, members of the MIC are appointed by, enjoy tenure of office at the discretion of, and are dismissed at the instance and discretion of, the Minister of Information.
In addition, the Minister of Information is also in overall charge of Zimpapers as well as the Zimbabwe Broadcasting Corporation. Does this not qualify him as a competitor? Is it constitutional to use a competitor to regulate companies and persons that compete against his mass media organisations for market space, readers and advertising revenue? Further, in a multiparty democracy, is it reasonable or fair to use a party functionary, a politburo member of Zanu PF, to regulate and exercise disciplinary power over both the print and electronic media?
* Tawanda Hondora is a human rights lawyer