THE Access to Information and Protection of Privacy Act (Aippa) established a commission, known as the Media and Information Commission, and conferred functions and powers on that commission.
The operations of the MIC were to be controlled and managed by a board consisting of not less than five and not more than seven members, appointed by the Minister of Information and Publicity, after consultation with the president and in accordance with any directions given by the president.Â The minister was required to designate one of the members as chairman of the board and another as vice- chairman.
One of the functions of the MIC was â€œto register mass media in Zimbabweâ€. In Section 2 of Aippa, the terms â€œmass media serviceâ€ and â€œmass mediaâ€ are defined as including any service or media consisting in the transmission of voice, visual, data or textual messages to an unlimited number of persons, and includes an advertising agency, publisher or, except as otherwise excluded or specially provided in the Act, a news agency or broadcasting licensee. Â
The terms clearly cover not only newspapers, broadcasts and other services, but also persons such as agencies and broadcasting licensees.Â The definition shows clear confusion as to what is meant to be regarded as a service.Â In the first part of the definition the service is the product, whereas in the second part it is the person providing the product.Â A mass media owner is defined as meaning, in the case of a mass media service company, the person who holds a controlling interest in the company.
Part XI of Aippa provides for the regulation of Mass Media Services. Section 66 (1) provides that a mass media owner shall carry on the activities of a mass media service only after registering and receiving a certificate of registration in terms of Aippa.Â It is not clear whether the section requires separate registration for each particular product of the service or whether the registration would cover all the products.Â However, it would appear from the wording of subsection (1) that the mass media is registered to carry on the activities of a mass media service.Â In other words, if when a mass media owner is registered it intends to publish a weekly newspaper, its registration means that it is authorised to carry on the activities of a mass media service, so it could also subsequently publish a daily newspaper. Â
The application for registration of a mass media service whose products are intended for dissemination in Zimbabwe must be submitted by its owner to what used to be the MIC.Â The mass media service is registered when it is issued with a certificate of registration by the commission.Â Section 67 of Aippa provides that a mass media service is required to notify the commission of any changes such as if the owner is replaced or if the name, language, form and frequency of the periodical dissemination of mass media products is altered.Â Nowhere in the Act is it made an offence if a mass media service fails to notify the commission of any changes referred to in Section 67 of Aippa.
Furthermore, Section 70 of Aippa, which provides for the suspension or cancellation of a registration certificate, does not provide for such suspension or cancellation if the mass media service has contravened Section 67; it is only if it contravenes Section 65, 75 or 89 that the certificate may be suspended or cancelled.Â Section 67, as stated above, requires that the mass media service merely notifies the commission of any changes in the name, form and frequency of the periodical dissemination of mass media products. Â
It is not provided in Part XI that, consequent on such changes, the certificate of registration must be altered or a new certificate issued.Â Â Section 72 (1) of Aippa provides that no person shall carry on or operate a mass media service without a valid registration certificate issued in terms of Aippa.Â That section, too, implies that once the person has a valid registration certificate he can carry on or operate a mass media service and, from time to time, change the services provided.
The provisions of Aippa relating to registration are confusing.Â For example Section 66 provides that the mass media owner may only carry on the activities of a mass media service after registering and receiving a certificate of registration.Â Are those two separate exercises, firstly registering and secondly getting a certificate of registration?Â Then, in terms of Section 67, it is the mass media service, not the mass media owner, that must notify the MIC of any changes.Â A mass media service might be the actual newspaper producer or the general service of producing newspapers.
In 2007 Parliament passed Act No 20 of 2007 (hereinafter referred to as â€œthe 2007 Amendmentâ€) which amended Aippa.Â It was assented to by the president and promulgated in the Government Gazette on January 11 last year. Normally, when an Act contains provisions which cannot be implemented until certain procedural matters have been carried out (eg the appointment of members of a board or council which is required to perform certain functions in terms of provisions contained in the Act), there is a provision in the Act that it will come into operation on a date to be fixed by the president or the minister by notice in the Gazette. Â
The 2007 amendment did not contain any such provision.Â Â In terms of Section 51 (5) of the Constitution, an Act of Parliament shall come into operation on the day of its publication in the Gazette or on such other day as may be specified in or under that or some other Act.Â As no other day was specified in the 2007 amendment, it came into operation on January 11 2008.
Section 3 of the 2007 amendment repealed sections 38, 39 and 40 of Aippa.Â Those sections established the MIC, prescribed its functions and powers and provided for the appointment and composition of the Board of the MIC.Â In place of those three sections it substituted sections which provided for:
(a) The establishment and composition of a Zimbabwe Media Commission (hereinafter referred to as â€œthe ZMCâ€) which consists of a chairperson and eight other members appointed by the president from a list of not fewer than 12 nominees submitted by the Parliamentary Committee on Standing Rules and Orders, who must be chosen for their knowledge and experience in the Press, print or electronic media or broadcasting; and
(b) The functions of the ZMC.
The 2007 Amendment also inserted a new Part VIIA in Aippa which established a Media Council and prescribed its functions which relate to a Code of Conduct and Ethics for journalists and mass media services and the resolution of breaches thereof.
The effect of the 2007 Amendment and its promulgation in the Gazette on January 11 2008 was that, with effect from that date, the MIC ceased to exist and was replaced by the ZMC.Â In Section 2 of Aippa there was a definition of the term â€œcommissionâ€, in which it was said to mean the MIC.Â The 2007 Amendment repealed that definition and substituted one which said that any reference in Aippa to the commission meant the ZMC.Â Consequently, with effect from January 11 2008, all the functions which immediately before that date were imposed on the MIC were transferred to the ZMC.
Despite the fact that the then Minister of Information and Publicity was the head of the ministry which had crafted the 2007 Amendment and that he had introduced it in parliament and piloted it through both the House of Assembly and the Senate, it seems that once it was passed by parliament, he lost all interest in it or just forgot about it. Â
Even to a minister of the meanest intelligence, which in 2007 would apparently have covered most of the Ministers since the president said that it was the worst cabinet in his 26 years as head of state, it should have been apparent that once the Bill had been approved by the Senate he should have approached the chairman of the Parliamentary Committee and requested him to obtain nominations for appointment to the ZMC.Â However he did not do so.Â No appointments were made. Â
Accordingly, although the ZMC has come into existence, it has never functioned because it has no members.Â It is even less effective than a toothless bulldog.Â The fact that no appointments were made to the ZMC did not mean, however, that the MIC or any of the members of the Board of the MIC could continue to exercise any of the powers conferred on the Commission by Aippa.Â Only the ZMC is authorised to exercise such powers.Â The members of the Board of the MIC ceased to be members on January 11 2008.Â They were not entitled to be paid from the funds of the ZMC after that.Â If they were being paid they should be required to reimburse the monies they unlawfully received.
The certificates of registration of the Zimbabwe Independent and the Standard newspapers purport to have been issued on February 6 2009 by the executive chairman of the MIC. However, the MIC ceased to exist on January 11 2008.Â Furthermore, the chairman of the M IC was not an executive chairman.Â Prior to the 2007 Amendment, Aippa provided that the MIC was controlled and managed by a board consisting of a chairman and vice-chairman and other members.Â The chairman was not given any executive powers. Â
Paragraph 9 of the Fifth Schedule to Aippa provided that the board could appoint a person to be chief executive and that, subject to the control of the board, the chief executive was responsible for managing the operations and property of the MIC.Â It would therefore be highly improper, and in fact illegal, for the chairman of the MIC to exercise executive functions and powers.Â In terms of Aippa, before January 11 2008 such functions were conferred on the chief executive.Â Accordingly the certificates of registration of the Independent and the Standard are invalid. Â
They are null and void.Â They have no legal effect.Â The effect of the abolition of the MIC and the failure to appoint members to the ZMC means that the mass media services whose registration expired on or after January 11 2008 are no longer registered.Â Likewise, any journalist whose accreditation lapsed on or after January 11 2008 is no longer accredited, even if the so-called executive chairman of the MIC purported to renew the accreditation.Â Â Â
George Smith is a retired judge.
BY GEORGE SMITH