Lack of media reforms unconstitutional

Reading Professor Jonathan Moyo’s article in the Herald of June 10 2013, one is left wondering at the unashamed zeal he exhibited in trying to pull the wool over Zimbabweans’ faces with regards media reforms.

Opinion by Nhlanhla Ngwenya

Whatever the source of Moyo’s rabid personal dislike of MDC-T leader Morgan Tsvangirai, which he displays ad nauseam in his articles laced with invectives aimed at debasing President Robert Mugabe’s political rival, only he knows.

In any case, one key hallmark of a democracy is the contestability of ideas where individuals engage and debate each other’s ideas without fear of reprisals. But such an exercise should be done with civility, integrity and honesty.

Over the years, Zimbabweans have come to understand — if not ignore — the abusive and abrasive tone of Moyo’s contributions on issues of national discourse as his “normal” style of engagement. Ordinarily, I would not have responded to his instalment had it been his usual tired expression of his perceived leadership qualities of Tsvangirai.

For I am not one of those paid to defend the MDC-T leader or sanitise his image and make him saleable to the electorate.

But what cannot be allowed to pass without challenge are Moyo’s efforts to mislead readers into believing that the new constitution puts paid to calls for media reforms.

That is not only a disingenuous misinterpretation of the supreme law, but a desperate attempt to defend the status quo; entrench the abuse of the hijacked public media and simply perpetuate the subjection of Zimbabweans to spells of undemocratic media controls.

But why is Moyo and his colleagues so afraid of a free media space if they have nothing to hide or fear? The answer is simple; they cannot phantom a media that will fearlessly unravel state transgressions and those involved, demand accountability in the exploitation of the country’s resources, robustly scrutinise those in office as well as provide a platform on which citizens can challenge and question those in authority.

In trying to cover up such deep-seated paranoia of a free press, typical of tyrannical states, he claimed: “There is nothing that the government, political or commercial interests can now do to reform the media in the way demanded by Tsvangirai without offending against the new constitution. In other words, the Sadc-mediated media reforms are plainly now unconstitutional.”

Obviously, Moyo was referring to the controversial media reform matrix the government principals, including Mugabe, agreed to before Sadc. Under the matrix, the parties came up with formulae for appointing individuals to head media bodies, including the ZBC board.

Each of the three parties in government allocated themselves quotas of individuals they were to second to sit on the envisaged boards.

While civil society organisations and other observers roundly condemned this plan as antithetical to principles of liberalising the media space, it was grudgingly accepted as a compromise deal given the diametrically opposed standpoints on the nature and form of media reforms to be undertaken within the auspices of the coalition government.

However, to then claim, as Moyo does, that the adoption of the new constitution automatically renders envisaged media reforms unconstitutional is the height of dishonesty that can only come from those who believe that they can commandeer the sun to set in the east through the verbosity of their arguments.

The simple fact that the coalition government’s reform agenda of the last four years may have been overtaken by events does not mean Zimbabweans cannot come up with measures to democratise the media sector in line with the new constitution.

In fact, the new constitution offers Zimbabweans a golden opportunity to break with the media tyranny of the past and join the league of democratic nations where the media is not viewed as the enemy of the state, but an indispensable cog in building and strengthening democracy.

Moyo cannot therefore give the impression that because of the new constitution, Zimbabweans cannot sit down, discuss, debate and chart the way forward on what sort of media reforms they want.

It is within every Zimbabwean’s right to demand and participate in the democratisation of the media space, however unpalatable that may be to some in Zanu PF.

Oblivious to this simple democratic principle, Moyo then sought to cement his argument by citing sections of the new constitution as they relate to the regulation of the state-owned media and broadcasting. One of the sections he cited is 61(4)(a), which states that “all state-owned media of communication must be free to determine independently the editorial content of their broadcasts or other communications”.

Apart from perpetuating the confusion of state-owned media with the privately-owned outlets, one of the key points of contradictions found in the new constitution, he narrowly interpreted the section to simply mean an entrenchment of the status quo.

On the contrary, the section, with all its faults, clearly outlaws the continued manipulation and control of the hijacked public media by his colleagues in Zanu PF, who are in charge of these news outlets.

For him to suggest that Tsvangirai’s demands for reformation of the public media is tantamount to political interference more than what is already obtaining, is utterly dishonest.

It is a matter of public record that Zanu PF interferes with management, operations and editorial content of the hijacked public media. And that surely is unconstitutional!

Also unconstitutional is the continued regulation of the broadcasting sector under the current regulatory framework. Section 61(3)(b) of the new constitution stipulates that, as Moyo rightly cited: “Broadcasting and other electronic media of communication have freedom of establishment, subject only to state licensing procedures that are independent of control by government or by political or commercial interest.”

An honest interpretation of this section would clearly show that the intention of the law is to insulate the regulation of broadcasting against abuse and manipulation, to which the Broadcasting Authority of Zimbabwe has been vulnerable.

It is a section that if complied with should see the replacement of the current licensing regime and boards with a democratic regulator whose appointment and conduct of business is transparent, not subordinate to a single ministry and generally meets the best practice in regulating the broadcasting sector as spelt out in various democratic instruments on broadcasting.

The current media legislative framework falls far short of the democratic standards and any Zimbabwean aspiring for a democratic dispensation would embrace any initiative aimed at adopting those principles without unfounded qualms.

But it is not difficult to understand why Moyo furiously disagrees.

He stands accused of being the mastermind of the worst media repression this country has witnessed when he was in charge of the information ministry.

He would obviously defend his infamous legacy.
Lastly, it is important that any discussion on media reforms is not predicated on self-preservation agendas that play out through narrow and superficial analysis of the new constitution.

Instead, they should be grounded on a holistic reading of the document to ensure that media freedom is not compartmentalised as exclusivesly for journalists, but a key vehicle for the enjoyment of all political, socio-economic, cultural and environment freedoms the constitution provides for in its expansive Bill of Rights.

It is important that this happens to avoid legislative trickery where liberties given by one hand are taken away by the other.

Our legislative history is littered with such examples. A case in point is the deceit that surrounded amendments to the Public Order and Security Act (Posa) and Access to Information nand Protection of Privacy Act (Aippa)ahead of the 2008 harmonised elections.

Pressured to repeal laws that imposed unwarranted restrictions to freedom of expression by various stakeholders, including the African Commission on Human and People’s Rights, government revoked Section 15 of Posa and Aippa’s Section 80. Both sections criminalised communication or publication of falsehoods.

However, this offence was then tucked under Section 31 of a different Act, the Criminal Law (Codification and Reform) Act, with even a heavier penalty of a maximum 20-year imprisonment term, a heavy fine or both for its violation. Before the amalgamation of the two sections, the crime attracted a maximum five years imprisonment.

For these reasons, media reforms can never be wished away on flimsy constitutional arguments. Only a holistic, inclusive and participatory approach will atone for years of destructive media policies.

Ngwenya is the director of Misa Zimbabwe.