IN terms of the Access to Information and Protection of Privacy Act (Aippa) as amended in January 2008, Section 38 of the statutory instrument notes the creation of the Zimbabwe Media Commission (ZMC), which replaces the Media and Information Commission (MIC).
AlthoughÂ the functions of the newly created ZMC are largely similar to those of the former MIC as set out in Section 39, there is no clause or provision in the Act which presupposes that the MIC shall be transformed into the ZMC.Â
Nor is there any intimation that the MIC may execute the duties expressly mandated to the ZMC.Â In fact the wording of the Act clearly anticipates the formation of the ZMC and sets out the manner of appointment of the new office bearers.
Section 39 of the Principal Act which establishes the MIC reads: Established is a Commission, to be known as the Media and Information Commission, which shall be a body corporate capable of suing and being sued in its own name and, subject to this Act, of performing all acts that bodies corporate may by law perform.
On the other hand the amendment Act under Section 38 reads: established is a Commission to be known as the Zimbabwe Media Commission, which shall be a body corporate capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that bodies corporate may by law perform.
A casual glance at the provisions outlined above raises one interesting question about the legality of any media commission. This question hinges precisely on the premise of the legal persona of the Commission.
This is where the Commission derives its legal recognition and power to act as an independent artificial person. It is this legal persona that legally empowers any body corporate to act or carry out such business as may be reasonably incidental to the objectives enshrined in its articles of association.
If, therefore, a commission or any other artificial legal entity should lose such legal persona or corporate personality it necessarily loses its power to act. It is therefore unequivocally clear that the former MIC, having been replaced by the ZMC, lost its legal persona and, by the same token, its legal recognition.
What this means is that the MIC can no longer lawfully act or issue legally binding directives as it has recently purported to do as implicitly highlighted by its attempt (acting through the minister) to issue the new steep application and accreditation fees that were recently gazetted by the government.
This act is a nullity; it is of no force and effect.Â Â Any attempt at according the actions of the MIC legal recognition would be a perpetuation of the illegality since the MIC no longer exists at law. Its directives are therefore illegal and unconstitutional.
One pertinent question that also comes to mind is the idea of when a Bill becomes law.Â At which precise moment does a Bill become an official legal instrument? It is a trite point that a Bill, having gone through parliament and duly passed by the same body becomes law upon being signed by the president, or upon a two-third majority resolution by parliament should the president refuse to so sign.
However, in the present scenario we need not bother ourselves with the latter scenario, since the Aippa Amendment Bill was duly passed by parliament and signed into law by the president in January 2008.
Having noted the above position and bearing in mind the fact that the law does not operate retrospectively, it is clear that the operations of the MIC were suspended by the passing of the amendment Act.
Its subsequent existence after the passing of the Act was just as illegal as any other business that it may have purported to conduct under the guise of the Commission, unless such business was reasonably incidental to its winding up.
Only the ZMC could legally execute the business of the Commission thereafter. The fact that to date the ZMC has not been constituted does not then sanitise the illegal operation of the former Commission. Not even convenience or necessity can exonerate or legally justify the continued operation of this body.
It should be the duty of the government to ensure that an enabling environment that can conduce to the realisation or creation of this new legal body is created.
Section 38 clearly states: The Commission (ZMC) shall have a chairperson and eight other members appointed by the president from a list of not fewer than 12 nominees submitted by the Committee on Standing Rules and Orders.
The fact that the ZMC is yet to be formed or created is a fault that inevitably lies with the Parliament, considering the fact that it did not endeavour to take necessary steps to ensure that the statutory body came to life. Â
However the executive, being the arm of government responsible for the implementation of the law, should be apportioned with the greater part of the blame. As noted above, a Bill becomes law upon being assented to by the president.
Why the executive then chose to sit on the law before its implementation boggles the mind. There can be no capable justification for the fact that ZMC is still not constituted. Â
The “dirty hands” principle is a fairly common maxim which stipulates that a party cannot approach the court for redress with soiled hands. This means that one has to comply with the law first before seeking legal redress from the court. This classic maxim was applied in the case of The Daily News by Chief Justice Godfrey Chidyausiku.
In this case the Chief Justice denied the applicant the right of audience before the court on the basis that it had not fully complied with the law by choosing not to register as a media house, notwithstanding the fact that the applicant was challenging the constitutionality of that same requirement that it was now being compelled to fulfil before it could properly come before the court.
In the same vein, the continued existence of the MIC is illegal rendering any of its proclamations or directives null and void.
One wonders how its directives can be legally enforceable when it has long outlived its sell-by date. Unless its legal persona is reassumed, it therefore cannot wish to demand legal compliance from any sector of the media industry before it justifies or shows its existence to be legal.
What is however shocking is the fact that the Minister of Information and Publicity, purporting to execute his duty under the guise of Section 91 of Aippa recently enacted new regulations under statutory instrument 185 of 2008.
The Amendment which is cited as Access to Information and Protection of Privacy (Registration, Accreditation, and Levy) (Amendment) Regulations, 2008 (No.5) fixes the new accreditation and registration fees for journalists working for foreign media.
The new fees proposed are absurdly high. They range from about US$4 000 to about US$30 000 in application and accreditation fees of journalists working for the foreign media and international media wishing to operate in Zimbabwe respectively.
Besides being illegal, these fees are unjustifiably high. Even if the fees were set within reasonable limits, the question is: to whom should the fees be paid given the fact that MIC is now legally defunct and the ZMC is yet to be constituted. Â
The new statutory instrument was gazetted on 19 December 2008, yet purports to operate retrospectively, as it clearly states that new regulations shall become operational with effect from August 1 2008.
Clearly there is nothing to merit or warrant retrospective operation of the law from a purely rational standpoint. This development appears to be nothing short of being senseless and illogical.Â
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There is yet another legal twist to this debacle pertaining to the issuance of regulations by the minister in terms of statutory instrument 185 of 2008. The minister no longer has these powers.
This power now vests within the domain of the ZMC which has not yet come into existence.Â The role of the minister under the new amendment is reduced to a merely consultative one in which the commission (which is absent in the present case) only requires the approval of the minister to make any regulations or proclamations.
The minister cannot however make these regulations.Â It is clear beyond any reasonable doubt that the directive by the minister seeking to review the registration and accreditation fees is legally defective. The minister made regulations which he is not legally competent to make. On this ground the regulations are null and void.
Beyond this obvious unlawfulness of the entire process there are also the illogically steep fees that have been gazetted in the legally invalid regulations. The fees are prohibitive and punitively high.
They can arguably be regarded as being in violation of the fundamental right to freedom of expression. It is clearly a hindrance to the free dissemination of information on the part of those journalists working with foreign media agencies.
The right to free expression on its own without the necessary conditions for exercising the same right becomes very dim. Arguably a right is meaningless if it is impossible for the right-holder to exercise it. The restrictive fees imposed by the regulations are so prohibitive that they may in all probability reduce the right to an unusable conceptual form.
Farai Nhende is a legal intern with Misa-Zimbabwe. Â
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BY FARAI NHENDE