Constitution Watch 8-2016

CONSTITUTION WATCH 8/2016

[16th May 2016]

Constitutional Alignment: Media Freedom

Introduction

The Chairperson of the African Commission on Human and People’s Rights and Special Rapporteur on Freedom of Expression and Access to information, Ms Pansy Tlakula, will be visiting Zimbabwe this week to assess the country’s progress in re-aligning media-related laws with the Constitution.

Veritas has sent out previous bulletins on what laws still need to be aligned, but the visit from the ACHPR is a good opportunity to remind ourselves of what progress, if any, has been made.  In this bulletin we will set out the provisions of our Constitution that deal with media freedom, then look at the laws that need to be aligned with those provisions, at the same time seeing what, if anything, has been done to align them.

Constitutional Provisions on the Media

Section 61 of the Constitution deals with freedom of expression and media freedom.  Subsection (1) guarantees everyone the right to freedom of expression, and subsections (2), (3) and (4) go on to deal specifically with media freedom:

“(2) Every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists’ sources of information.

(3) Broadcasting and other electronic media of communication have freedom of establishment, subject only to State licensing procedures that—

       (a) are necessary to regulate the airwaves and other forms of signal distribution;  and

       (b) are independent of control by government or by political or commercial interests.

(4) All State-owned media of communication must—

       (a) be free to determine independently the editorial content of their broadcasts or other communications;

       (b) be impartial;  and

       (c) afford fair opportunity for the presentation of divergent views and dissenting opinions.

(5) Freedom of expression and freedom of the media exclude—

       (a) incitement to violence;

       (b) advocacy of hatred or hate speech;

       (c) malicious injury to a person’s reputation or dignity;  or

       (d) malicious or unwarranted breach of a person’s right to privacy.”

Summarised, the section does the following:

It guarantees freedom of the media [subsection (2)].

It guarantees journalistic privilege, i.e. the right of journalists to keep their sources confidential [subsection (2)].

It gives everyone a right to establish broadcasting stations and electronic media services;  this right can be limited only for the purpose of regulating airwaves and signal distribution [i.e. bandwidth], but the limitation must be free from governmental, political or commercial control [subsection (3)].

It states that all State-owned communications media must have editorial freedom;  be impartial and present divergent views fairly [subsection (4)]

Finally, it states that media freedom does not extend to incitement to violence, hate speech or malicious infringement of a person’s reputation, dignity or privacy [subsection (5)].

Media Laws that Need to be Aligned to the Constitution

And What has been Done to Align Them

There are several laws on our statute book that affect media freedom.  We shall deal with each of them, indicating what needs to be done to align them with the Constitution and what has been done so far.

The Access to Information and Protection of Privacy Act [AIPPA]

1.  Provisions restricting media freedom

This Act restricts media freedom in several respects:

Section 64 makes “abuse of freedom of expression” a criminal offence.  It should be repealed entirely or considerably revised because it has a “chilling effect” on freedom of expression.  Even the publication of statements which are in fact true is criminalised, if the person who published them did not have reasonable grounds for believing they were true.  This is more stringent that the civil law of defamation.

Section 65 prohibits non-citizens from owning a mass media service, and bans them and non-residents from even holding shares in such a service.  This clearly violates their freedom of expression and, in so far as it applies to broadcasting services, violates their right to establish such services under section 61(3) of the Constitution, as that right can be limited only for the purpose of regulating airwaves and signal distribution.

Section 80 of AIPPA penalises “abuse of journalistic privilege”;  it should be revised or repealed for the same reasons as those mentioned above in regard to section 64 of the Act.

2.  What has been done to align these provisions with the Constitution?

Nothing.  The General Laws Amendment Bill, which has passed through Parliament and is now awaiting promulgation as an Act, will amend AIPPA solely to update references to the Comptroller and Auditor-General and the Audit and Exchequer Act.  No further amendments have been made by any other Act, nor are any contained in any published Bill.

The Broadcasting Services Act

1.  Provisions that require alignment

This Act is inconsistent with the Constitution in several respects:

The Broadcasting Authority of Zimbabwe [BAZ], which issues broadcasting licences, is not independent of governmental or political control:  most of the members of its board are appointed by the President after consultation with – not with the agreement of – the Parliamentary committee on Standing Rules and Orders.  There is no provision for the appointments to be made on a non-partisan basis.  Furthermore, under section 4B of the Act the responsible Minister can give the board policy directives and under section 25 can order the board to vary its programme standards.  If the board fails to comply with a policy directive or order, the Minister can dismiss the entire board under paragraph 4 of the Third Schedule to the Act.  Hence the board is not independent as envisaged by section 61(3) of the Constitution.

Under section 4 of the Act, only four members of the 12-member board of BAZ need be women;  under section 17(1)(b) of the Constitution at least half the members must be.

Section 8 of the Act prohibits the issue of broadcasting licences to non-citizens and to corporate bodies controlled by non-citizens, as well as to organisations that are funded by foreigners.  This sort of restriction is not necessary to regulate the air-waves, and so falls outside the limits permitted by section 61(3) of the Constitution.

The restrictions on programme content laid down in the Fifth and Sixth Schedules to the Act are inconsistent with the freedom of expression envisaged by section 61(1) of the Constitution.

2.  What has been done to align these provisions with the Constitution?

Nothing.  The General Laws Amendment Bill will make similar amendments to the Act as it does to AIPPA, i.e. solely to update references to the Comptroller and Auditor-General and the Audit and Exchequer Act.  No further amendments have been made by any other Act, nor are any contained in any published Bill.

Censorship and Entertainments Control Act

1.  Need for alignment with Constitution

This Act clearly violates freedom of expression, including media freedom, in that it criminalises the production and dissemination of publications which the Board of Censors has declared to be undesirable.  Undesirability is not determined objectively by a court but is left to the opinion of the Board.  Apart from violating section 61 of the Constitution, the Act also violates the rule of law, since whether or not a crime has been committed under the Act depends on the Board’s determination rather than on a clear and objective law.

2.  What has been done to align the Act with the Constitution?

Nothing.  The General Laws Amendment Bill will not amend the Act, and no other Act or published Bill contains any amendments.

Official Secrets Act

1.  Need for alignment with Constitution

This Act, as its name suggests, was enacted to prevent official secrets being disclosed to enemies or hostile organisations.  It is far-reaching and imposes draconian penalties.  For example, it makes it an offence for a person to whom any information has been entrusted in confidence to disclose the information to anyone without authority;  the penalty for doing so is up to 20 years’ imprisonment.  The Act violates freedom of expression, including media freedom.  The Act needs to be revised extensively to bring it into line with the section 61 of Constitution.

2.  What has been done to align the Act with the Constitution?

Nothing.  The General Laws Amendment Bill will not amend the Act , and no other Act or published Bill contains any amendments.

Criminal Law Code

1.  Provisions restricting media freedom

Several provisions of the Criminal Law (Codification and Reform) Act [usually called the Criminal Law Code] limit media freedom, and all of them have been used to prosecute journalists:

Section 31 makes it a crime to publish a false statement intending to undermine public confidence in any of the security services, or realising there is a real possibility that public confidence in them will be undermined.  The crime can be committed even if the offender did not know the statement was false.

Section 33 makes it a crime to publish a statement which may bring the President into hatred, ridicule or contempt.  The crime can be committed if, when the offender published the statement he or she realised it might be untrue – even if it turns out to be true.

Section 96, which makes defamation [i.e. libel or slander] criminal.  It is usually a delict or tort, i.e. a civil wrong.

Section 177, which makes it a crime to do anything, including publishing a false statement, with the realisation that it may expose members of the Police Service to “contempt, ridicule or disesteem”.  

2.  What has been done to align the Code with the Constitution?

Very little.  The General Laws Amendment Bill will repeal section 96 so that defamation will no longer be a crime – but the repeal was inserted belatedly into the Bill after the Constitutional Court had ruled, in the teeth of opposition by government lawyers, that section 96 was unconstitutional.  There does not seem to be any evidence of further amendments to the Code’s transgression of constitutional media freedom.

What progress has been made?

It will be apparent from what has been said above that nothing substantial has been done to align the five statutes with the Constitution’s provisions for media freedom.  Nor, so far as we are aware, has the Government any intention of doing so.  This is hardly surprising:  indeed it would be a surprise if the Government had taken steps to relax the restrictions on media freedom in the Acts.  Media freedom encourages journalists to question governmental policies, to unearth corruption and expose incompetence;  it empowers opposition politicians to lay alternatives before the electorate.  The Government’s dogged but ultimately unsuccessful defences before the Constitutional Court of statutory provisions punishing criminal defamation and criticism of the President suggest an administration more interested in maintaining existing controls than in removing obstacles to the enjoyment of true freedom of expression.

 

The Acts referred to above and the General Laws Amendment Bill as passed by Parliament can all be downloaded from the Veritas Website

 

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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