Chidyausiku upholds Aippa

Vincent Kahiya

IN a clear endorsement of the government’s Media and Information Commission, the Supreme Court yesterday ruled that the regulatory body was constitutional and laws prohibiting journalists from

practising without accreditation were legitimate.


The ruling is likely to have a chilling effect on the practice of journalism in Zimbabwe and provides the government with the weapon it needs to deal with dissent in the independent press.


At the same time the Supreme Court reserved judgement in an application by the MIC filed on Tuesday to stop the ANZ from publishing its two titles pending finalisation of the appeals on February 18.


Chief Justice Godfrey Chidyausiku’s ruling yesterday in the case brought by the Independent Journalists Association of Zimbabwe (Ijaz) was assented by Justices Misheck Cheda, Vernanda Ziyambi and Luke Malaba. But Justice Wilson Sandura produced a dissenting judgement upholding freedom of expression. (See story below.)


In response to a November 2002 application by Ijaz challenging the constitutionality of the Access to Information and Protection of Privacy Act (Aippa) and the powers of the MIC, headed by Tafataona Mahoso, Chidyausiku ruled that it was constitutional for journalists to be registered with the MIC as stated by Section 79 of the Act. He ruled that Section 83 which prohibits journalists from practising without accreditation was also constitutional as were the powers vested in the MIC under Section 85.

In a joint statement yesterday Ijaz, the Media Institute of Southern Africa, and the Media Monitoring Project Zimbabwe said the sections upheld by the court posed a serious threat to the work of journalists and infringed on their rights to freedom of expression and that of the media.


“These sections compel all journalists to be accredited by MIC and make it a criminal offence to practise journalism without accreditation,” the groups said. “While there is nothing wrong with accreditation for administrative purposes, we are concerned however that the MIC and the Minister of Information are accorded quasi-judicial powers to decide who works as a journalist or not. In other words the MIC and the minister have arbitrary powers to decide who may or may not practise as a journalist.”


The court however struck down Section 80 (1), (a), (b) and (c) of the Act which was deemed to criminalise the abuse of journalistic privilege.

“Criminalising the abuse of a privilege is patently oppressive,” the judgement said.


Parts of the section have already been struck down in an earlier ruling by the same court and it was also amended by parliament last year.


But it is the upholding of Sections 79, 83 and 85 that is likely to leave an indelible mark on the media considering allegations of partiality by the MIC when dealing with independent media organisations.


In his ruling Chidyausiku contended that Section 20 of the Constitution of Zimbabwe guarantees freedom of expression but does not guarantee freedom of the press.


“I see nothing in the language of the Section 20 (1) that suggests that the legislature intended to confer on an individual a constitutional entitlement to work as a journalist,” said Chidyausiku.


The Supreme Court said that the “practice of journalism is different from other liberal professions such as law and medicine” which are regulated by statute.


“It is correct that the practice of journalism involves the exercise of freedom of expression, the receiving and imparting of information,” said Chidyausiku.


“This distinction in my view does not place the practice of journalism beyond the control of statutory regulation.”


He said the fact that the press was important did not place it above the law.

Sternford Moyo of Scanlen & Holderness, representing Ijaz, had contended that the licensing of journalists was unconstitutional as this did not fall within exceptions to freedom of expression like providing for public order. But Chidyausiku differed.


“I find myself in agreement with the proposition that a law providing for the licensing of media falls under the exception of the law providing for law and order,” he said.


The Chief Justice also rejected Moyo’s claim that Section 79 conferred too much power on the Information minister in the licensing of journalists.

“I am unable to accept this submission for a number of reasons,” said Chidyausiku. “A proper reading of the section reveals that that section confers on the commission and not the minister certain powers.


“If the suggestion is that the commission is sufficiently not independent of the minister or is controlled by the government, the argument is misconceived,” he said.


On Section 83 which outlaws practising without a licence, Chidyausiku ruled that the section was constitutional.


“Section 83 prohibits an individual from practising as a journalist unless he or she is accredited as a journalist. The issues raised here are identical to those raised in respect of the challenge to Section 79. What I said in regard to Section 79 applies with equal force to Section 83. In my view, Section 83 is constitutional,” he said.

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