Constitution Watch 17-2016

CONSTITUTION WATCH 17/2016

[15th August 2016]

Constitutional Alignment:

ConCourt Outlines Duties of the ZBC as a Public Broadcaster

Introduction

Is it constitutional for the Zimbabwe Broadcasting Corporation [the ZBC] to collect compulsory licence fees from members of the public who have television sets?

Last month the Constitutional Court answered that question affirmatively in a case [Wekare & Another v The State & Others, judgment No. CCZ 9-2016] in which the applicants challenged various sections of the Broadcasting Services Act that give the ZBC power to collect listeners’ licence fees from members of the public who own or possess television sets.

The court held that listeners’ licence fees were taxes levied by Parliament under its wide constitutional powers of taxation.  That they were called “fees” did not alter their real nature, nor did the fact that the ZBC was empowered to fix their amount and to collect them for its own benefit.  They were taxes and as such had to be paid.  The court dismissed the applicants’ argument that the ZBC’s lack of editorial independence, low-quality programmes and lack of transparency rendered the fees illegal:  even if the revenue from the licence fees were misused, the court said, that did not affect the validity of the statutory provisions authorising the collection of the revenue.  To quote the judgment:  “A law cannot be declared invalid simply because it is misused.”  [Comment: this means that a valid law does not become invalid simply because someone applies it wrongly;  people who are aggrieved by the misuse of a law should challenge its misuse rather than try to challenge the validity of the law itself.]

On that basis the court dismissed the applications.

Public Broadcasting and Freedom of Expression

Interesting though the judgment is on the question of taxation, its real interest from a human-rights perspective lies in what the court said about the duties of the ZBC as a public broadcaster in the light of the constitutional right to freedom of expression.

Freedom of expression principles

The court held that the provisions of the Broadcasting Services Act providing for a public broadcasting service must be in line with fundamental principles behind freedom of expression guaranteed by the Constitution

Note: The case was filed in 2012, before the new Constitution came into force, so the constitutional provisions referred to in the judgment are those of the old Lancaster House Constitution.  However what is said in the judgment applies equally to the provisions of the new Constitution

The court summarised the principles of freedom of expression as the following:

Everyone has the right to express himself or herself freely through the medium of his or her choice.

This implies the right to access, receive and disseminate ideas, information and messages of all types through all communication systems and media – in this case electronic media.

Public broadcasting media must in the public interest enjoy editorial independence from undue influence from both State and corporate actors.

Section 61(4) of the present Constitution reinforces the last of these principles in the following terms:

“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.”

So not only must the ZBC be independent, it must also be impartial and must fairly reflect different views and opinions.  As the court said:

“When the ZBC as a public broadcaster speaks it should not be government speaking.  The right to freedom of expression does not extend to protecting government from itself.”

What the court meant by the second sentence quoted above was that the government’s right to freedom of expression does not extend to using a public broadcaster, such as the ZBC, to express only government propaganda.  As the court explained:

“What is paramount is the collective right of the viewers and listeners in receiving a balanced presentation of ideas and information on diverse matters of public concern by television and radio.  The public’s free speech interest in broadcasting is a collective and not an individual right in that the people as a whole retain their interest in free speech by radio and television.”

This collective public right to freedom of speech in broadcasting is promoted by pluralism and diversity, by programmes which ensure that citizens have access to a wide range of information and ideas on a variety of subjects.  The court held that one of the fundamental requirements of freedom of expression is the need for a broad plurality of information.

The Broadcasting Services Act and independence of the ZBC

The Broadcasting Services Act gives effect to these principles, the court said, by enacting a “complex statutory scheme” for a non-profit broadcasting service operated by the ZBC in the interest of the public and providing high-quality news, public affairs and other programmes.  The scheme depended on the ZBC having institutional, financial and editorial independence.  According to the court, the Act gives the ZBC:

institutional independence by making it a company separate from the State,

financial independence by allowing it to collect licence fees for its own benefit, and

editorial independence by giving it power to decide on what programmes to broadcast, at what times, on which subjects and for what purposes.

The court pointed out, however, that the ZBC’s editorial independence was not unlimited.  Although it had power to decide on who participated in its programmes it could not exclude people because it disagreed with their points of view on matters of public interest.  Its editorial decisions had to be reasonable and its viewpoint neutral.  In other words, it had to be impartial.

Significance of the Judgment

In setting out the principles of freedom of expression in relation to public broadcasting, and the duties of the ZBC to observe those principles, the Constitutional Court was not suggesting that the ZBC is actually observing the principles or carrying out its duties.  What the court was doing was to show that the Broadcasting Services Act, under which the ZBC operates, largely conforms with the Constitution in so far as it lays down what the ZBC may and may not do.  Hence, the court indicated, the applicants’ case was misdirected:  if the applicants were dissatisfied with the ZBC’s programmes they should either have used the complaints procedure set out in section 40 of the Act or else approached a court for an order directing the ZBC to comply with the Act and the Constitution.

What Can be Done

Whether intentionally or not, the Constitutional Court has pointed out the route to be followed by civil society organisations, political parties and individuals who feel aggrieved at political partisanship on the part of the ZBC in its radio and television broadcasts.  Aggrieved parties should not challenge the levying of licence fees, or the constitutionality of the Broadcasting Services Act.  Instead they should apply to the Constitutional Court or the High Court for either or both the following orders:

directing the ZBC to comply with the Act by permitting a proper diversity of opinions to be aired in its news and public-interest broadcasts,

prohibiting Ministers and government officials from interfering in any way with the editorial independence of the ZBC.

Applicants would have to provide clear evidence showing bias on the part of the ZBC, and suggesting that government interferes in its editorial independence.  If the application is properly presented, however, the tone of the Constitutional Court’s judgment in Wekare’s case suggests the applicants may get a sympathetic hearing.

Concourt Judgment available on the Veritas website here.

Broadcasting Services Act available on the Veritas website here.

 

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