‘Public Order’ becoming an end in itself

“IT is vital and indeed critical to the proper functioning of the press that the legal framewor

k should ensure and enhance the independence of the press from both governmental and commercial control… Enactments that unduly undermine the independence of the press will not pass the laid down test for the constitutionality of such enactments.”

These words came from Zimbabwe’s Chief Justice in his recent judgement on the constitutional case lodged in July 2002 by the Independent Journalists Association of Zimbabwe challenging the Access to Information and Protection of Privacy Act.

Does his judgement meet this test?

With the agreement of three colleagues he has approved a law giving a commission chosen by a minister enormous control over the press. They approved powers letting it decide who may work in the media and who may not. It has the power also to “discipline” journalists and revoke their right to speak out.

The Supreme Court majority chose to see it as an independent body. But is it?

In Zimbabwe a minister given any power to appoint someone is also given the power to remove or suspend him, to replace him or act instead of him, and not just to fix or vary his remuneration but to withhold it in whole or in part during any time he suspends him. 

Such terms and conditions are automatically written into any appointment by a minister. Those still accepting such appointments implicitly agree to be put on a leash. What the independent journalists objected to was being told to put themselves on a leash too, or to abandon their right to impart ideas and information to the general public without interference.

The guardians of our constitutional liberties invoked Ian Smith’s old mantra of “public order” to restrict fundamental — and on their own admission — essential rights.

Smith and his colleagues used these for years to defend an illegal minority regime. Make a law; then say everyone must obey it or we’ll have a breakdown of law and order. The mere existence of the law finally justifies itself.

That of course was also what the Supreme Court said last September 11 when it told ANZ to obey whatever law had been published before they would hear their argument on whether it was constitutional, because otherwise the court would be tolerating “lawlessness”.

“Public order” appears also in our current constitution as a reason to strip people of their property, of their protection of person and property from arbitrary search or entry, their freedom of conscience and their freedoms of assembly, association, and movement. In a totalitarian state “Public Order” becomes an end in itself.

As Judge Sandura noted, it must be a democratic public order; but after invoking the mantras of law and order, the Chief Justice stopped there. He did not consider in total whether the infringements were reasonably justifiable in a democratic society, although the constitution does not allow infringements on grounds of   “order” unless they can also pass that particular test.

He followed instead another route, finding that as the journalists had not objected to the existence of a commission or any code of conduct written by it, they had “tacitly” accepted others regulating their conduct through those means, and accepted that it was constitutionally permissible to regulate the press.

Was there room for finding such “tacit concessions”? It was their express open  rejection of such controls which had brought the journalists before the court, asking it to remove the teeth by which they could be hurt.

If those teeth were to be removed, they could have no objection to the animal itself remaining. It would become irrelevant to them. The journalists did not object to all existence of any such mechanisms — only to being compelled to submit to them. The court could not have failed to appreciate that.

As Sandura noted, the State’s suggestion that these controls were there to “help” journalists could never provide a reason to force them to accept them.

Justice Sandura referred to freedom of expression as a cornerstone on which the very existence of a democratic society rests, and refused to condone this law’s interference with that.  Regrettably the majority of the judges on the bench decided otherwise.

In the week since then, Minister Moyo’s watchdogs have confirmed Sandura’s warning: “The compulsory accreditation of journalists in terms of Section 79 is not a mere formality. It was obviously intended to exclude some persons from practising as journalists.”

Courts have often recognised that freedom of expression is protective of all other rights.  When people are tortured or killed, or when judges are taken away in the middle of the night, it is the free press, the independent press, that is often their best friend or their families’ best hope for securing help or justice.

We should remember that as our liberties are stripped away one by one.

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