THE media in Zimbabwe at last had something to celebrate last week after the Supreme Court ruled that part of Section 80 of the Access to Information and Protection of Privacy Act (Aippa) was unconstitutional.
The ruling, generally consider
ed the first major step in unbundling the draconian piece of legislation, is of immense significance but the political coast is not yet clear. There is still a myriad of provisions in Aippa and its ugly sibling, the Public Order and Security Act (Posa), which continue to create barriers to media freedom.
Posa has remained a minefield for the media industry as journalists have been charged with publishing information which is deemed to be prejudicial to the state.
The Supreme Court bench ruled last Wednesday in the constitutional challenge to Aippa by Lloyd Mudiwa and Geofrey Nyarota, formerly of the Daily News, that Section 80 (1) (b) as read with section 80 (2) contravened Section 20 (1) of the constitution of Zimbabwe. The contentious provision made it an offence for journalists to “abuse journalistic privilege” by writing “falsehoods”. At least 25 journalists have been arrested and charged under its provisions.
The Zimbabwe Lawyers for Human Rights (ZLHR) in a statement last week applauded the court ruling but warned that the battle was still far from being won.
“We note that this ruling only declares unconstitutional the offence under Section 80 of publishing falsehoods,” the ZLHR said.
“The court has not ruled on the constitutionality of other offences contained in Section 80 such as the offence of falsifying or fabricating information,” the lawyers said.
The government last year gazetted amendments to Aippa to address shortcomings which offer some relief to journalists but lawyers have pointed out that the amending Bill might not pass the test of constitutionality.
Under Section 80 of Aippa a journalist deemed to have committed an offence is presumed guilty before the offence can be proven, which contravenes section 18(3)(a) of the constitution and its presumption of innocence. This places the onus of proof on the accused and not on the state which is clearly untenable in criminal law.
The proposed amendments to Aippa remedy this to some extent by the insertion of new words to make it an offence to “intentionally or recklessly” falsify information, or to “maliciously or fraudulently” fabricate information.
The onus would now rest on the state to prove there was reckless and deliberate intention to publish falsehoods.
In a submission to the Parliamentary Committee on Transport and Communication in December Misa Zimbabwe said the proposed amendment still falls far short of expectations in respect of freedom of expression.
“The section as it stands — in particular subsections (a) to (c) in the Bill,” said Misa, “still imposes criminal liability even where the reputations, rights and freedoms of other persons have not been threatened or contravened, and it imposes liability irrespective of the impact of the false or fabricated information on the reputations, rights and freedoms of other persons.
“In other words, even where the false news does not harm any person and therefore there is no complainant, the journalist is still open to stiff criminal penalties. We ask how will this be enforceable and who is the wronged party?”
The Independent Journalists Association of Zimbabwe (Ijaz) last year challenged the constitutionality of the same section together with other provisions of Aippa dealing with registration, the authority of the Media and Information Commission and powers of the Minister of Information. Judgement in the case is still pending in the Supreme Court.
In the Ijaz case, Information and Publicity minister Jonathan Moyo did not concede that Section 80 was unconstitutional but elected to defend the notion that the provision was meant to protect the “socio-economic fabric of any nation”.
“Section 80 of the Act is the best and most effective way of re-injecting professionalism in the practice of journalism,” said Moyo in his opposing affidavit in the Ijaz case.
The ZLHR said this was an attempt by the government to justify the arrest of journalists using an unconstitutional law.
“We are deeply concerned, however, at the action taken by respondents (the government) in other constitutional challenges, in which they have chosen to defend the constitutionality of the same provisions.
“This depicts a level of bad faith in attempting to legitimise action taken under this section whilst knowing fully well of the unconstitutional irregularity of such criminal sanctions,” the lawyers said.
The ZLHR has called on the Attorney-General’s office to withdraw cases of journalists who have been arrested under Section 80 of Aippa.
While the state generally has failed to prosecute and secure convictions on cases arising from Section 80 of Aippa, it can effectively employ Posa to harass journalists.
“This seems to be a knee-jerk reaction to the realisation that prosecutions were failing to obtain convictions under Section 80 of Aippa,” the ZLHR said.
Section 26 of Posa, which prohibits public gatherings, has also been used to harass, arrest and detain journalists covering demonstrations and rallies. There has not been a real constitutional challenge to Posa, which effectively constrains the operations of NGOs, opposition parties and civic organisations.
The Aippa amendment Bill also denies the media profession the basic right to choose representatives to sit on the commission that will regulate media affairs. The government wants to remove three media representatives provided for under the current Act. The profession will become the only professional body in Zimbabwe to be governed by a completely non-representative board at the discretion of an all-powerful minister.
“There is an attempt here not only to ignore these concerns but also to instead blatantly try and legislate an assurance that there will be no need for any participation whatsoever by representatives of the profession,” said Misa in its submission to the parliamentary committee.
“This leads to non-transparency and non-accountability by this commission and must be opposed.”
The amendments also give the commission discretion to adjudicate upon all questions of fact and law thereby usurping the functions of a court of law.
“How can a commission, which has adjudicated upon and turned down an application for registration impartially and effectively review its own decision?” asked Misa.
“How can the commission, which has decided to suspend a registration licence, tell itself it was wrong or right to do so? The problems are apparent, and it defies logic that this is not patently clear to the drafters of the Bill.
“Such a provision would make the commission both a regulator and a policing body which is also clearly in contravention of Section 18(1) and (2) of the Constitution, as an individual or a body is denied the protection of the law in having the matter heard and adjudicated upon within a reasonable time by an independent and impartial court of law,” said Misa.
The amendments also seek to reduce the time period for which a foreign journalist can be accredited to a mere 30 days which seriously impedes those who are stationed in Zimbabwe to cover long-term developments.
“It could be argued that for this reason, and the fact that the journalist would have to leave the country and then apply again for accreditation and await the approval of the commission before re-entering Zimbabwe to continue such coverage, constitutes an impediment on the free flow of information,” Misa said.
“We also remind Honourable Members that the Sadc Protocol on Information, Sport and Culture calls on countries to draw up measures that allow the free movement of journalists in Sadc. We believe that this section will not promote that spirit.”