Tabani Moyo..Media analyst
THE process of government-led media law reforms commenced during the era of the former president Robert Mugabe, as his administration reluctantly buckled under pressure over the alignment of the laws to the 2013 charter.
The lead agent in this process is the Inter-Ministerial Taskforce on Media Law Reforms, which is chaired by the Ministry of Justice and Parliamentary Affairs, targeting two laws for alignment, namely the draconian Access to Information and Protection of Privacy Act (Aippa) and the Broadcasting Services Act (BSA). Both laws were promulgated almost two decades ago with the aim of stifling the free flow of information in Zimbabwe.
With these laws under the spotlight, one would have been quick to declare, “the dawn of a new era!” Alas, the more things change the more they remain the same. The proposed laws have been a disappointment and the people of Zimbabwe are now focussing on the Parliament of Zimbabwe with the hope that it will rise above narrow political parties’ interests. This is akin to parliament being on trial.
In this article, I forward the notion that Zimbabwe has come a long way, with draconian laws that have reduced the citizens to second-class beings in their own country, while pushing Zimbabwe into a pariah state as it was isolated by the international community for human rights abuses and the use of repressive laws to silence dissent.
The article, therefore, calls upon parliament to take its rightful position in applying itself in defence of the constitution of the republic and push back any attempts at smuggling in laws, clauses that are both archaic and retrogressively taking Zimbabwe back to the Stone Age.
The current bills that have been gazetted to unbundle Aippa, namely the Freedom of Information (FoI) Bill and the Zimbabwe Media Commission Bill (ZMC Bill) are nowhere near conformity with the constitutional order of Zimbabwe. They are worse than laws that were enacted two decades ago, literally freezing the country in a time warp. The third Bill, the Data Protection/Privacy Bill is yet to be gazetted. Once Bills have been gazetted, they go to parliament for public consultations and debate before being passed into law.
The executive elected to sponsor bills that are worse than those crafted two decades ago. Simply put, the bills in their current state are in violation of the constitution of the country. Therefore, parliament’s role is to ensure, through the separated powers, that the bills are surgically broken down to minute detail, chucking out all forms of provisions that are in violation of the constitution.
The foundational and existential role of parliament is defined in the supreme law of the land through Section 119 (1-3), which reads:
1) Parliament must protect this constitution and promote democratic governance in Zimbabwe;
2) Parliament has the power to ensure that the provisions of the constitution are upheld and that the state and all institutions and agencies of government at every level act constitutionally and in the national interest;
3) For the purposes of subsection (2), all institutions and agencies of the State and government at every level are accountable to parliament.
It goes without saying that Parliament bears the most complex role in the republic as it is the only institution mandated with the duty and role to “protect this constitution”. The drafters of the constitution were alive to the temptation by the executive to regress to the narrow interests of the politics of power retention which would compromise the supreme law as exhibited by the two sponsored bills which are undermining the constitution of the land.
Therefore, parliament must rise above the narrow polity of the day in preserving the heart and soul of the constitution through firstly the Parliamentary Legal Committee (PLC), which is the guardian angel of the charter and its committee on Media, Information and Broadcasting Services, which has over the years shown its ability to close ranks and act in defence of the same.
Furthermore, parliament has a proactive role through Section 119(2) which empowers the august house with the powers to ensure that “… the State and all institutions and agencies of government at every level act constitutionally…” Parliament has the powers to summon anyone in Zimbabwe, except a sitting president in performing this right. It is my argument that it should not wait until the tail-end to summon the sponsors of the gazetted Bills to point out how they undermined the constitution—for reasons I will articulate in the article.
Talking of parliament, we must remember that the constitution stipulates: “All institutions and agencies of the state and government at every level are accountable to parliament.” This entails that parliament, in its wholistic manner, is the guardian of the constitution, and should use this stewardship to shield the constitution from being undermined by the state, government or its agencies, including respective ministries. Therefore, MPs, its duty bearers, should not at any given time be seen to be in complicity with treacherous acts of undermining the constitution of the country.
Having established the foregoing, it is critical to note that both Bills are beyond any reasonable doubt beyond the reach of the constitutional litmus test. With regards to the FoI Bill, the following issues are of concern:
Does not meet the standards set by the Constitution through Section 62 which gives the following rights, “every Zimbabwean citizen or permanent resident, including juristic persons and Zimbabwean media, has the right to access information held by the state or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability”.
The Bill defines the Zimbabwe Media Commission as the body responsible for the promotion and protection of the right to information in its text, yet it refers to the Zimbabwe Human Rights Commission in the preamble. ZMC cannot be responsible for the promotion of the right to access to information, which is a stand-alone right in the bill of rights.
It does not provide for mechanisms for proactive disclosure.Does not define comprehensive whistleblower protection and promotion mechanism.
Gives the burden of translation to the person requesting for information to carry the costs, which is tantamount to denying the person access.
It is heavy on exemptions, including lousy ones such as exempting the public from requesting information on government borrowing among others.
While the following concerns are critical for the ZMC Bill:Seeks to entrench statutory regulation on the industry, which has made its position clear on the need for self-regulation while the ZMC is supposed to be the applet body.
Seeks to criminalise the industry through proposing prison terms and hefty fines for committing professional mistakes.
It attempts to smuggle back criminal defamation which was outlawed by the courts in 2016.
Compromises the independence of a Chapter 12 institution, ZMC, through giving the minister excessive powers over its operations. This is in violation of Section 235 of the constitution which states that (1) the independent commissions : a) are independent and are not subject to the direction or control of anyone … while subsection (3) states that: No person may interfere with the functioning of independent commissions. These commissions, for the furtherance of their functions are accountable to the parliament of Zimbabwe, which is the guardian of the constitution.
In performing its roles, parliament should do so without fear or favour as it is the last frontier in defending the constitution on one hand and the community voices that emerge from the consultative process with the hope of strengthening the constitution of the republic on the other hand. This is critical for an institution with such a existential mandate to defend the constitution. Whereas the ministry consulted the media stakeholders, it “forgot” to capture the views of the same stakeholders into the draft, resulting in the executive sponsoring unconstitutional Bills to parliament.
It was the late Dr Edson Zvobgo, almost 20 years ago who stood in parliament as the chairperson of the PLC when his committee was vetting Aippa on its compliance to the constitution who stated that,
“… This bill, in its original form is the most calculated and determined assault on our liberties guaranteed by the constitution … what is worse, the Bill is badly drafted in that several provisions were obscure, vague, overbroad in scope, ill-conceived and dangerous …”
Twenty years on, Zimbabwe has gone full circle and calling for the parliament of Zimbabwe to rise beyond party polity as then Zvobgo and his team did in scrutinising the bill on its compliance with the constitution of the republic.
In essence, parliament should be encouraged and inspired by the United Nations’ official endorsement of September 28 as the International Day for Universal Access to Information to push back the unconstitutional bills and recommend for the current administration to domesticate international instruments that it is signatory to in its efforts to strengthen the country’s institutions of democracy.
In its proclamation, dated September 30 2019, the UN re-affirmed the 2030 Agenda for Sustainable Development and the commitments therein to promote peaceful and inclusive societies to spur development of which access to information is a key ingredient. This can be achieved by ensuring unfettered public access to information and the protection of fundamental freedoms in line with national legislation, international agreements and best practice.
In conclusion, parliament has a duty to protect the constitution, hence the need to surgically examine the media and access to information bills with the aim of seeking compliance to the constitution of the country.
Moyo is the chairperson of the Media Alliance of Zimbabwe (MAZ) and national director of the Media Institute of Southern Africa (Misa) Zimbabwe. He writes in his personal capacity. — firstname.lastname@example.org