AS the media fraternity and other stakeholders wait, with bated breath, for new media laws to be passed, various concerns are running rampant.
Major concerns include, but are not limited to, whether or not there is, on the part of government, sincerity and sufficient political will to enact legislation that can significantly democratise the media space; promote access to information instead of hamper, curtail and/or limit it; protect the right to information and deliver on freedom of the media and free expression as espoused by the 2013 constitution.
Also concerning is whether or not a new legislative environment will enable not just plurality of the media as a hollow measure to tick some boxes, but actually usher in diversity, with alternative voices by independent media owners not just extensions, sympathisers or apologists of the regime, alongside others.
Further, yet another concern which has reared its ugly head during the processes towards reforming the laws thus far has been the apparent contestation of interests pitting legal and technical interests relevant to the industry versus ideological slants and emphasis as per the establishment. More on this a little later.
To its credit, Zimbabwe’s Second Republic took a bold step in the right (read democratic) direction when it committed itself to media law and policy reform trajectory. This commenced with the announcement of the legislative agenda for the Ninth Parliament by President Emmerson Mnangagwa on September 13, 2018.
Departure from the past
According to the Justice Ministry, this legislative agenda, which is a stark departure from the more repressive past under the late former President Robert Mugabe, was informed principally by the need to align the laws with the constitution, giving, in particular, effect to sections 61 and 62 of the supreme law which provide for freedom of expression and freedom of the media, as well as access to information, which were not guaranteed in the previous constitution.
The legislative agenda was also influenced by the need by government to spruce up the tarnished international image of the country by embracing and aspiring for international best practice as the Second Republic has sought to engage the international community in general and the global north in particular.
More specifically, the most pronounced step towards media law reform has been the intended repealing of the Access to Information and Protection of Privacy Act (Aippa), which government expressly committed to and whose provisions restricted freedom of expression and curtailed access to information. Aippa was designed to exercise massive state control over the media, which saw extensively the criminalisation of the profession of journalism.
As per the new legislative agenda, Aippa is set to be replaced by three bills: the Freedom of Information (FOI) Act, the Zimbabwe Media Commission (ZMC) Act, and the Protection of Personal Information Bill (Data Protection) Act. Repealing Aippa will also require amendment of the existing Broadcasting Services Act (BSA).
To date, the Information Ministry has spearheaded efforts to replace the offending Aippa, among other efforts, through — much to government’s credit, and a departure from the politics of the more dictatorial past — engagement with stakeholders from across the divide, including those from previously shunned and demonised circles. Civil society actors, who have in the past not been entertained, have in the last year been invited to participate in several consultations on media law reforms including even in a write-shop, which was organised by the Inter-ministerial Taskforce on the Alignment of Legislation to the Constitution (IMT), working with the Information Ministry in March 2019.
At this write-shop, the IMT and the Attorney-General’s (AG) Drafting Department sought to incorporate input from key stakeholders who were involved in the processes of aligning the media laws with the constitution.
Release and gazetting of bills
Within the same collaborative engagement context, government actors have also participated in workshops and other engagements initiated by civil society players in a refreshing spirit and momentum of working together towards reforming the media space.
So far, the ministry has released three of the four proposed draft Bills into the public domain, namely the draft Freedom of Information Bill, the draft Zimbabwe Media Commission (ZMC) Bill, and the draft Broadcasting Services Amendment Bill.
The Protection of Personal Information Bill (Data Protection) Bill is yet to be released. Wide consultations and outreaches by Parliament on the gazetted Freedom of Information and Zimbabwe Media Commission bills have been concluded. What remains is now the enactment of the draft laws to make them bonafide laws.
That there will be new laws is a given as expressed by steps undertaken to date. What is not certain as yet is the extent of democratisation, the magnitude of reform, of the proposed pieces of legislation in their final form, with fear being whether or not the laws will make for a freer media or not; whether they will provide for more access to information or not. Or whether they will be more of the same with only some minute and cosmetic differences.
While there have been consultations, reaching out across the divide, so far there has been outcries by in particular members of civil society who were engaged in earlier consultations and drafting stages of the bills, but claim that their input was left out and not factored in.
This has, no doubt, called into question the sincerity of the engagement exercise. It remains to be seen whether following the outcries, there will be redress of the omitted contributions. Whether this happens, only the final laws will reveal.
Content issues raised
Major discussion on the bills have been on the following specific issues: FOI Bill has made provisions to establish an Office of an “Information Officer” in state and quasi state entities, who will have a key role in disseminating information, their main mandate will be to disclose information proactively.
There is need for these to be capacitated and sensitised on the need to enable rather than curtail access to information. “Disclosure of information” and grounds in which information cannot be disclosed — information cannot be disclosed in matters relating to personal security, physical safety, trade secrets, confidential information, state or national security etc, this section, among others, also generated much discussion, with stakeholders giving input towards a provision on the “declassification” of information and instruments that can be used to protect classified information and instruments that can be used to enable for the declassification of information.
The ZMC Bill, like Aippa before it, carries a section which criminalises the very practice of journalism. The Bill also gives too much power to the Information minister, thereby taking away ZMC’s independence.
A part of the BSA Bill provision seeks to regulate the broadcasting services, and to provide for a model public broadcaster based on the best international and regional practices. This Bill promotes the use of local languages by a public service broadcaster and a commercial broadcaster, as well as national heritage and cultural values, norms and morals on broadcast services. These are just but a few of the issues which have generated much discussion on the proposed laws. Alternative views have been proffered and, as mentioned above, only the final products will reveal what eventually passes as the final laws.
Cart before the horse
On another note, the very process of law-making itself has also come under attack for putting the cart before the horse. The draft bills were drafted and gazetted before a media policy was developed and put in place. As such there have also been hurried efforts to draft a media policy and have it come into effect at least at the same time as the new laws in order to address the anomaly.
There have been consultations on the media policy itself and a draft has been put together and now waits to go through Cabinet and Cabinet committee before it becomes effective. To government’s credit, the very act of working on and introducing a media policy, though coming irregularly after the drafting of the bills, has been hailed as a plus in that before the Second Republic came into being, there had been no official media policy to talk of.
What may create a bone of contention though may be that the proposed policy seems to seek to chew more than it can swallow. So far termed the Media and Film Policy, the policy’s stretch from media to film, the latter which has in the past been in the ambit of a different ministry altogether, may be bundling too much. How combining the portfolios of both media and film will pan out on the ground remains to be seen.
The aforementioned contestation of legal and technical aspects of the media versus the ideological emphasis is more noticeable in the proposed policy. The draft policy is too heavy on ideology at the expense of the legal considerations of the media. It is almost as if the media and legal elements resident within that domain play second fiddle to the ideological menu.
While ideological underpinnings are not necessarily adverse considerations in law and policy-making and many may actually welcome and embrace them in measured doses, they ought to create just the base, but not be positioned as the staple or the core business of the discipline under focus.
Something for something
What has also been apparent in general is the quid pro quo principle inherent in the ongoing law- and policy-making exercise, whereupon government seems to say, through the proposed laws and policy to practitioners and others who will seek to use or benefit from the pieces of legislation, that you get your rights in exchange for your professionalism, in exchange for your patriotism, in exchange for your compliance, among other currencies.
While this may be read within the context of all rights having responsibilities attached to them, which most people cannot argue with, coming from a repressive Aippa environment, this could be construed to indicate that there is a cost — which could be heavy — for one to access and claim their constitution-given rights. That shows government, in fact, remains reluctant to openly, freely and constitutionally provide rights as per the dictates of the constitution.
Mzumara is a media and communication practitioner. She is a member of several organisations and writes in her personal capacity. Email: firstname.lastname@example.org