By Otto Saki
THE passing of the Access to Information and Protection of Privacy Act (Aippa) in March last year saw the enactment of registration requirements for media houses and journal
ists. The Associated Newspapers Zimbabwe (ANZ) then launched a constitutional challenge to provisions of the Act that they regarded as a violation of freedom of expression as provided for in the constitution and other international instruments which Zimbabwe is party to.
The Supreme Court in September this year refused to give the ANZ audience, ordering that the ANZ comply with the provisions of the Act before they can challenge the constitutionality or otherwise of the Act. Acting on the Supreme Court judgement, the state forced the ANZ to cease operations leading to the halt in production of the Daily News and the Daily News On Sunday.
The Supreme Court ruling has attracted the attention of virtually all human rights organisations, civic groups, and members of the legal fraternity. The Supreme Court decision, which prompted the closure of the Daily News, has received widespread condemnation on the perception that it abrogated its duty to defend and protect the freedoms provided for in the constitution and other international covenants that Zimbabwe signed and ratified. The subsequent seizure of ANZ property by the Zimbabwe Republic Police without judicial sanction is a further violation of certain fundamental rights in Zimbabwe. The directors, staff and journalists of the ANZ were not spared either as the police subjected them to arbitrary arrests and detentions from time to time.
The ANZ then filed an application for registration in compliance with the requirements under Aippa to the Media and Information Commission (MIC). The MIC turned down the application on the basis that the ANZ had not satisfied the requirements. The ANZ appealed against the decision of the MIC with the Administrative Court, which found in favour of the Daily News on October 24. The Administrative Court ruled that the MIC was improperly constituted, that it was biased largely due to the conduct of its chairperson and also that it acted ultra vires its powers in terms of Aippa.
The Constitution of Zimbabwe provides in Section 20 of the Bill of Rights for the freedom of expression and in verbatim states: “Except with his own consent or by way of parental discipline, 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.”
It is evident from the above that freedom of expression is one of the elementary rights which must be guarded jealously by all individuals in society for its violation affects the enjoyment of other rights.
The Universal Declaration of Human Rights (UDHR) in Article 19 states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Even though not necessarily binding, the provisions of the UDHR have been considered to be an authoritative guide to human rights and constitute general principles of law and are widely held as having acquired legal force as customary international law. Some jurists have also regarded the UDHR as part of the United Nations Law.
The African Charter on Human and Peoples’ Rights, which Zimbabwe ratified in 1986, equally provides for freedom of expression under Article 9 (1) when it states that “Every individual shall have the right to receive information”.
The African Commission on Human and Peoples Rights meeting at its 32nd Ordinary session in 2002 adopted the Declaration of Principles on Freedom of Expression, the preamble of which reaffirms “the fundamental importance of the freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms” in Africa.
The Declaration recognises the key role the media and other means of communication play in “ensuring full respect for freedom of expression, in promoting the free flow of information and ideas, in assisting people to make informed decisions and promoting the free flow of information and ideas, in assisting people to make informed decisions and in facilitating and strengthening democracy”.
An important aspect of the states’ positive obligation to promote freedom of expression and of the media is the need to promote pluralism within and to ensure equal access of all to the media. This entails that states not only refrain from interfering with the rights but also take positive steps to ensure that rights, including freedom of expression, are respected. In effect governments are under an obligation to create an environment in which independent media can flourish, thereby satisfying the public’s right to information.
Article 14 of the Declaration provides that “states shall promote a general economic environment in which the media can flourish”. The Declaration unequivocally affirms the principle of independence of media regulatory bodies, as this is a vital condition for the promotion and protection of the right to freedom of expression. To ensure the free flow of information and ideas, media regulatory bodies should enjoy both organisational and operational autonomy – a requirement that the MIC of Zimbabwe cannot satisfy.
Zimbabwe also ratified the International Covenant on Civil and Political Rights in 1991 which provides for the freedom of expression under Article 19 (2) as follow: “Everyone shall have the right to freedom of expression; this right shall include freedom to receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.
It is clear that freedom of expression is one of the fundamental rights; all state parties to the above cited instruments are expected to implement measures that further enhance the enjoyment of these rights. The ANZ case is emblematic of the patent suppression of the freedom of expression by the state. It goes without saying that the existence of an independent media is important in the furtherance of democracy and democratic values in society. To this end, Zimbabwe Lawyers For Human Rights is campaigning for the respect and protection of freedom of expression in Zimbabwe. The granting of a publishing licence to the ANZ is only but a step towards the promotion, enforcement, and realisation of the right to freedom of expression in Zimbabwe.
* Otto Saki is a projects lawyer with the Zimbabwe Lawyers For Human Rights.