THE Supreme Court ruling which last we
ek upheld provisions of the Access to Information and Protection of Privacy Act (Aippa) will have a chilling effect on journalism as it criminalises the practice of the profession by those not accredited by the Media and Information Commission whose members are appointed by Information minister Jonathan Moyo.
Media groups said the judgement, which immediately forced the Associated Newspapers of Zimbabwe (ANZ), publishers of the Daily News and Daily News on Sunday, to indefinitely suspend operations last Friday, will “chill to the marrow” Zimbabwe’s embattled independent journalists.
Analysts said Zimbabwe’s private press, currently under political siege, now faces a further risk as the ripple effects of the court ruling wave through the increasingly hazardous media landscape.
They criticised Chief Justice Godfrey Chidyausiku’s ruling, saying it would effectively consolidate media tyranny, which is growing at an alarming rate.
Since Aippa was enacted in March 2002, scores of independent journalists have been arrested and detained for allegedly “abusing journalistic privilege” — an offence which has now been found to be blatantly unconstitutional — while their government counterparts have been allowed to get away scot-free even though they are perhaps the biggest offenders under the draconian law.
Chidyausiku’s ruling upheld sections 79, 83, and 85 of Aippa, which from the start loomed as a lethal weapon designed to attack private media journalists for exposing government incompetence and corruption. The media has also been at the forefront of exposing government’s failure to properly run the economy and Zimbabwe’s chronic political repression.
Analysts say there could be no doubt that the independent press is a great inconvenience to the incumbent regime’s blossoming career in material self-aggrandisement and ruling by all means necessary, including through the use of coercion.
Section 79 of the law makes it mandatory for journalists to accredit with the government-appointed MIC headed by Tafataona Mahoso; Section 83 outlaws the practice of journalism without a licence, while Section 85 provides for the punishment of journalists deemed to have breached any section of Aippa.
Section 85 provides for the drafting of a Code of Conduct for journalists by the MIC in consultation with interested parties. It also confers disciplinary powers on the MIC and provides guidelines on sanctions for misconduct.
Chidyausiku, whose judgement on September 11 last year led to closure of the Daily News, ruled that the contested provisions of media legislation were constitutional as they were intended to maintain “public order”.
While conceding that Section 20 (1) of the constitution, which protects freedom of expression, also subsumes freedom of the press, Chidyausiku ruled that the licensing of the media was constitutional because it fell under permissible derogation of the conferred right in the same section.
“The authorities clearly establish that licensing of the media fall under the exception of public order,” Chidyausiku said. “I find myself in agreement with the proposition that a law providing for the licensing of the media falls under the exception of a law providing for public order.”
However, in a strong dissenting judgement, Zimbabwe’s longest-serving Supreme Court judge, Justice Wilson Sandura, said “it is clear beyond doubt that the legislative objective given for the enactment (purportedly to make journalists accountable) is not sufficiently important to justify limiting the fundamental right to freedom of expression”.
Sandura said he could not see “any rational connection” between the need for a journalist to register and Moyo’s claimed objective of making journalists accountable.
“In his opposing affidavit the first respondent (Moyo) does not say how the two are connected,” he said. In other words Sandura said he does not see how compulsory accreditation would make a journalist accountable.
However, Chidyausiku argued that the provision was “rationally connected” to the objective of the legislation.
In answering the question whether the means used to limit the freedom of expression were the least drastic, Chidyausiku said he was satisfied with the method because Section 79 “is essentially an enabling provision”.
But Sandura said: “There can be no doubt that the answer to that question is a negative one because the provisions of common law and criminal law adequately make a journalist accountable for his actions.”
He said the provisions of Section 79 are “not reasonably justifiable in a democratic society”.
Chidyausiku said the issue of accreditation could not be considered restrictive because Section 20 of the constitution “does not, expressly or implicitly, prohibit preventive restriction”. He said although freedom of expression is protected in the constitution, the exercise of that right was not expressly guaranteed “through any means of one’s choice”.
“I see nothing in the language of Section 20 (1) that suggests that legislature intend to confer on an individual a constitutional entitlement to work as a journalist,” he said.
Sandura said accreditation was restrictive because it was not a “mere formality” as it required the approval of Moyo — who has the final say in the matter.
University of Zimbabwe constitutional lawyer Dr Lovemore Madhuku said Chidyausiku’s argument was “nonsensical” because “freedom would have no meaning if it did not relate to the freedom of choice as to the medium to be used to exercise that right”.
“The constitution assumes you can use any means to enjoy freedom of expression. Although the term journalist is not used in the constitutional section on freedom of expression it is certainly implied through use of words like ‘the right to receive and impart information’,” he said. “Chidyausiku has no argument on that issue.”
On Section 80 (1) (a) and (b) which provided that a journalist who falsifies or fabricates information and publishes falsehoods is guilty of a criminal offence, Chidyausiku said the provisions were unconstitutional because they “create strict criminal liability and are so broad in their sweep”.
“Criminalising such conduct has a chilling and intimidating effect on journalists,” he said, adding the issue of journalists freelancing without their employers’ permission could not be made a criminal offence.
On the issue of punishing journalists for an alleged “abuse of journalistic privilege”, Chidyausiku said this was plainly unlawful because “freedom of the press is a constitutionally guaranteed right and not a privilege”.
Sandura agreed with Chidyausiku on these issues but added the provisions dealing with “falsehoods” were unconstitutional “simply because the publication of false statements is protected in Section 20 (1) of the constitution”.
Quoting from another judgement, Sandura said thus “a law which forbids expression of a minority or ‘false’ view on the pain of prosecution or imprisonment, on its face, offends the very purpose of the guarantee of free expression”.
On Section 83 which deals with criminalising the practice of journalism without accreditation, Chidyausiku said it was constitutional as it was meant to maintain “public order”. Sandura said it was not because it contravened the freedom of expression provision in the constitution.
While Chidyausiku upheld the MIC’s powers to punish journalists for violating its Code of Conduct — which has yet to be produced — and contravening any part of Aippa, Sandura said this was wrong because journalists could in certain circumstances be punished for exercising their legitimate rights under the constitution.
Although Chidyausiku’s ruling provides the official lawful position on the issues at contest, public debate on the merits of the case is likely to persist.