By Chido Makunike
WAS the decision of Associated Newspapers of Zimbabwe to refuse to register its newspapers with the Media and Information Commission a tactical mistake? It would seem s
o from last week’s Supreme Court ruling declaring the Daily News to have been operating illegally since newspapers were required by propaganda minister Jonathan Moyo’s Aippa to register with the Media and Information Commission.
All other newspapers, including the many independent ones who have doubts about both the constitutionality of the requirement to register, as well as the spirit of Moyo’s whole act, played it safe and decided to challenge or live with the law after having complied with it.
Particularly in the hindsight of the court ruling and the not surprising speed and enthusiasm with which the police moved to shut down the paper soon after, not giving the authorities any pretext to shut them down was the wiser move.
While refusing to comply with the registration requirement of Aippa on the grounds of conscience while challenging it in court seems justifiable to me when one considers all the foul efforts to silence the Daily News over the years, it was falling right into the hands of the authorities, as has been shown.
The court could have chosen to make a ruling both on the legality or otherwise of the publisher refusing to register the newspaper, as well as the constitutionality of the law that required it to do so at the same time. For instance, it could have ruled that while ANZ was indeed in violation of Aippa, a duly constituted law regardless of its cynicism and that of its principal author, that law was (a) unconstitutional or (b) not an infringement of the right to free speech after all.
In the case of finding ANZ in violation of Aippa but then finding the relevant section of that law unconstitutional (a), the simplest thing would have just been to let the newspaper continue to be published as before. In the second scenario, a finding of violation of Aippa by ANZ but also finding Aippa’s registration requirement to not be an infringement of the constitutional right to free speech, ANZ could have been fined and/or simply required to then register.
The court instead decided to separate the issues of compliance with Aippa’s registration requirements and whether those requirements were constitutional or not. Many will attribute the court choosing to deal with the matter in this two-step way as a sign of a stacked court working in cahoots with an oppressive state machinery to silence a thorn in the government’s flesh.
How the continuing saga unfolds in the near future will determine whether this suspicion is justified, or an unfair aspersion of the court’s professionalism and independence.
Despite the court’s discretion to deal with the two main issues at the same time or separately, on the face of it “comply with the law you detest and consider to be unconstitutional first before you come back to us to ask it to be overturned”, is this a perfectly reasonable argument from a bench only seeking to uphold “law and order” or is it also a clever way to force the Daily News to stay off the streets for as long as possible?
I know what many Zimbabweans will suspect, but things will become clearer over the future installments of this legal drama that we will no doubt witness.
It may very well turn out that ANZ complies with Aippa’s requirement to register its newspaper and later succeeds in having that part of Aippa and others declared unconstitutional. This depends on a lot of variables including the tightness of the reasoning of ANZ’s legal representatives as well as just how free, fair and independent of the authorities our judiciary is.
While this verdict would seem to vindicate the court’s independence, it is unfortunate that the judiciary is now seen as so compromised by the executive to the extent that a ruling of Aippa’s constitutionality, even on seemingly solid legal arguments, would confirm to many suspicious Zimbabweans that the executive and the judiciary conspire together against the citizens.
The lessons from all this for those fighting against the repressive regime of Mugabe? Among them are to cover your tracks and not to underestimate the extent to which the regime will use any tactics to defend itself and therefore do not give it any ammunition to say “we did things according to the book”.
The police certainly displayed amazing alacrity in acting on the court’s finding that the Daily News was operating illegally. Given the countless documented cases of flouting of laws that have been condoned by the authorities in recent years, resulting in the rape, harassment and death of many Zimbabweans simply protesting how they are being misruled by Mugabe’s regime, a right enshrined in the constitution, it is fascinating how quickly and heavily the police moved to stop ANZ from not just publishing its newspaper, but from conducting any other business!
While publishing the Daily News is its main business and is probably the grounds for the police’s enthusiasm since a feisty, prickly paper had been conveniently found to be “illegal”, sealing off the publishers’ premises by armed guards certainly did not simply stem from a desire to see the law complied with if the way we have seen the authorities react to other “lawlessness” is any indication.
A lot of the officially-sponsored and condoned lawlessness of the past several years that has cost lives has been of a “political” nature which the police could not touch with a ten-foot pole, but let them find an excuse to shut down the Daily News, and they suddenly become terribly brave and hyperactive! In this case it was so vitally, nationally important to comply with “law and order” that a paramilitary operation to seal off the paper’s building was thought to be called for, showing just how jittery the paper had made the authorities.
Speaking more broadly about what it all means for the push for democratic reform and political change in Zimbabwe, the efficacy of using traditional means of challenging the authorities in official fora that they have completely sown up must be questioned. Legal challenges can be tied up in the courts for years, judgements unfavourable to the authorities are simply ignored, those in its favour are harshly and swiftly carried out for maximum intimidatory effect.
Here we have one more example of how many of the brave Zimbabweans who are putting their livelihoods and lives on the line for a better country than we have now are completely misguided to continue to give the authorities the benefit of the doubt.
The Mugabe regime will happily comply with court judgements when they suit it, and throw them aside when they don’t. It is astonishing to me that given the evidence of the last several years, many of us still dare to hope that it can be negotiated with to move the country out of its misery.
Chido Makunike is a Harare-based writer.