ZIMBABWE’S most experienced Supreme Court judge, Justice Wilson Sandura, has distanced himself from Chief Justice Godfrey Chidyausiku over the issue of compulsory accreditation and punish
ment of journalists under the Access to Information and Protection of Privacy Act (Aippa).
In a powerful dissenting judgement which followed Chidyausiku’s ruling yesterday that it was constitutional for journalists to be forced to accredit with the Media and Information Commission (MIC), which is chaired by Tafataona Mahoso, Sandura said compelling journalists to register was clearly ultra vires the constitution.
Sandura said mandatory accreditation was unconstitutional because it violated Section 20 of the constitution. The section, which is in sync with constitutional developments in tested democracies, gives journalists, as well as other citizens, freedom of expression that includes the liberty to “hold opinions, receive and impart ideas and information without interference” unless where state restrictions are reasonably justifiable in a democratic society.
Since accreditation of journalists by the MIC under Section 79 of Aippa was subject to approval by Information minister Jonathan Moyo and permanent secretary George Charamba, Sandura said this effectively meant that it was a restrictive measure and not a mere routine.
“The accreditation is not, therefore, a mere formality. If it were, why would it need the minister’s approval?” Sandura asked.
Chidyausiku said Section 20 of the constitution, that guarantees freedom of expression, did not protect freedom of the press.
However, Sandura said: “It is pertinent to note that there is no rational basis for distinguishing the practice of journalism from the exercise of the right of freedom of expression because the two are intertwined.”
Sandura, a Supreme Court judge of several years standing, said the task before the court should have been to consider whether or not the “restrictive provisions of Section 79 are reasonably justifiable in a democratic society” and “sufficiently important to justify limiting a fundamental right”.
He said Moyo claimed the idea of accreditation’s main objectives was to ensure accountability and easy access to events by journalists. As the issue of access to events applied only to voluntary accreditation, Sandura said compulsory registration was therefore the issue.
“Regrettably, the first respondent (Moyo) does not say how the requirement that a journalist be accredited, before exercising his rights as a journalist, would achieve the intended objective (accountability),” Sandura said.
“Nevertheless, I am satisfied that the legislative objective given is not sufficiently important to justify limiting freedom of expression.”
Quoting another judgement, Sandura said freedom of expression could not be limited on flimsy grounds because it was “a cornerstone upon which the very existence of a democratic society rests”.
Sandura said the Aippa provision that Moyo claimed was aimed at making journalists accountable was unnecessary because “provisions of common law and criminal law make the journalist accountable for his actions”.
He also said the provision which empowers MIC to penalise journalists for violating Aippa in general was flawed because it suggested punishment of journalists for contravening sections of the law that are in themselves actually unconstitutional.
While Sandura agreed with Chidyausiku that “criminalising the abuse of a privilege (as Aippa did) is patently oppressive”, he also ruled that provisions of Section 80 that deal with “falsifying or fabricating information, and publishing falsehoods” were also unconstitutional “simply because the publication of false statements is protected by Section 20 of the constitution”.