21 January 2002 – for immediate release

02-004 ARTICLE 19 CONDEMNS FURTHER RESTRICTIONS ON ZIMBABWE'S MEDIA

ARTICLE 19 has released a report criticising a Bill now before the Zimbabwean Parliament that will significantly extend government control over the independent media. ARTICLE 19 calls on the Parliament not to pass the Bill into law.

The Access to Information and Protection of Privacy Bill 2001 would grant a broad range of restrictive powers over the media to a Commission under the control of the Minister of Information. Despite its name, the Bill does very little to ensure access to information and contains only limited provisions on privacy.

Our analysis indicates a number of areas where the Bill breaches international standards on freedom of expression. Key problems include the following:
Ø severe restrictions on the right to access information;
Ø strengthened government control over all media outlets and any business disseminating media products or even video or audio recordings;
Ø the requirement for all individual journalists to obtain government accreditation;
Ø the prohibition on foreign journalists and foreign media ownership; and
Ø excessive restrictions on the content of what the media may publish or broadcast.

ARTICLE 19 condemns these attempts to control the independent media and calls on the Parliament to refuse to pass this regressive Bill into law.

Toby Mendel, Head of ARTICLE 19’s Law Programme, said:

"The timing of the Media Bill, just prior to the presidential elections scheduled for March of this year, makes these concerns all the more poignant, given the crucial importance of freedom of expression to free and fair elections".

ENDS

1. Copies of the briefing are available on the ARTICLE 19 website, www.article19.org

2. ARTICLE 19 released a 3-page briefing on this legislation on 11 January. Today's report is a detailed legal analysis, critiquing the Bill from the perspective of international law.

3. For further information contact Toby Mendel, Head of Law Programme, on 44 20 7239 1193 (44 20 8552 3437 out of office hours), email: [email protected].

MEMORANDUM

on

The Zimbabwean Access to Information and Privacy Bill

by

ARTICLE 19
Global Campaign for Free Expression
London
January, 2002

Introduction

The Access to Information and Privacy Bill, 2001 (Media Bill) is currently being considered by the Zimbabwean Parliament. Passage of this Bill, which is part of a series of restrictive measures proposed by the Government, was recently delayed when the parliamentary legal committee failed to report on it in advance of the second reading, as required by the Constitution of Zimbabwe. This Bill, if passed into law, would severely restrict freedom of expression in Zimbabwe. The timing of the Media Bill, just prior to the presidential elections scheduled for March of this year, makes ARTICLE 19’s concerns about it all the more poignant, given the crucial importance of freedom of expression to free and fair elections.

As the name of the Media Bill implies, it does formally establish a right to access information held by public bodies, something ARTICLE 19 welcomes. However, this right is so limited by exclusions and exceptions that its practical impact is likely to be extremely limited. The Media Bill does also impose limits on the collection of personal information by public bodies and the uses to which such bodies may put this information, again something we welcome. However, the bulk of the provisions in the Media Bill have nothing to do with access to information or privacy. Instead, they impose a range of harsh restrictions on media freedom. This gives the impression that the name and information/privacy provisions have been included simply to draw attention away from the real import of the Media Bill.

Key problems with the Media Bill are as follows:
Ø the exceptions and exclusions to the right to information are so comprehensive as to effectively negate the right;
Ø all media outlets and any business disseminating media products or even video or audio recordings must obtain a registration certificate from a government controlled body;
Ø all individual journalists must also obtain accreditation from the same body;
Ø all foreign ownership of the media is prohibited and no non-citizen may work as a journalist; and
Ø excessive restrictions are imposed on the content of what the media may publish or broadcast.

This Memorandum analyses the Access to Information and Protection of Privacy Bill, setting out ARTICLE 19’s main concerns, along with recommendations as to how to address them. Our concerns are grouped into five main categories. First, the provisions on freedom of information are seriously undermined by an extensive regime of exclusions and exceptions. Second, the Media Bill allocates broad regulatory powers to an Information and Media Commission but this body is firmly under the control of the Minister responsible for information. Third, all media outlets, as well as those who disseminate information, including through video and audio cassettes, are required obtain a registration certificate from the Commission. Fourth, conditions are placed on who may practise journalism and all journalists are required to obtain accreditation from the Commission. Fifth, the law imposes strict restrictions on media content, including by reintroducing provisions which were recently struck down as unconstitutional by the Supreme Court of Zimbabwe.

International and Constitutional Standards

International Guarantees of Freedom of Expression

The Universal Declaration of Human Rights (UDHR) is generally considered to be the flagship statement of international human rights, binding on all states as a matter of customary international law. Article 19 of the UDHR guarantees the right to freedom of expression and information in the following terms:

Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty which Zimbabwe ratified in 1991, guarantees the right to freedom of opinion and expression in very similar terms to the UDHR, also in Article 19. Zimbabwe is also a party to the African Charter on Human and Peoples’ Rights, which guarantees freedom of expression at Article 9. These guarantees allow for some restrictions on freedom of expression and information but only where these are prescribed by law, pursue a legitimate aim and are necessary in a democratic society to protect that aim.

Constitutional Guarantees

Article 20(1) of the Zimbabwean Constitution guarantees freedom of expression in the following terms:

Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

As under international law, the Constitution does permit some restrictions on freedom of expression, but only where such restrictions are “reasonably justifiable in a democratic society”

The Importance of Freedom of Expression

International bodies and courts have made it very clear that freedom of expression and information is one of the most important human rights. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which states:

Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.

As this resolution notes, freedom of expression is both fundamentally important in its own right and also key to the fulfilment of all other rights. It is only in societies where the free flow of information and ideas is permitted that democracy can flourish. In addition, freedom of expression is essential if violations of human rights are to be exposed and challenged.

The importance of freedom of expression in a democracy has been stressed by a number of international courts. For example, the African Commission on Human and People’s Rights has held:

Freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of public affairs in his country.

Similarly, the Inter?American Court of Human Rights stated:

Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. ... [I]t can be said that a society that is not well informed is not a society that is truly free.

This has repeatedly been affirmed by both the UN Human Rights Committee and the European Court of Human Rights.

The fact that the right to freedom of expression exists to protect controversial expression as well as conventional statements is well established. For example, in a recent case the European Court of Human Rights stated that:

According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.

These statements emphasise that freedom of expression is both a fundamental human right and also key to democracy, which can flourish only in societies where information and ideas flow freely.

Media Freedom

The guarantee of freedom of expression applies with particular force to the media, including the broadcast media and the Internet. As the Inter-American Court of Human Rights has stated: “It is the mass media that make the exercise of freedom of expression a reality.”

Because of their pivotal role in informing the public, the media as a whole merit special protection. As the European Court of Human Rights has held:

[I]t is … incumbent on [the press] to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.

This applies particularly to information which, although critical, is important to the public interest:

The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest [footnote deleted]. In addition, the court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.

This has been recognised by the constitutional courts of individual states around the world. For example, the Supreme Court of South Africa has recently held:

The role of the press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration. It must also contribute to the exchange of ideas already alluded to. It must advance communication between the governed and those who govern. The press must act as the watchdog of the governed.

Restrictions on Freedom of Expression

The right to freedom of expression is not absolute. Both international law and most national constitutions recognise that freedom of expression may be restricted. However, any limitations must remain within strictly defined parameters. Article 19(3) of the International Covenant on Civil and Political Rights lays down the benchmark, stating:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.

It is a maxim of human rights jurisprudence that restrictions on rights must always be construed narrowly; this is especially true of the right to freedom of expression in light of its importance in democratic society. Accordingly, any restriction on the right to freedom of expression must meet a strict three-part test, approved by both the Human Rights Committee and the European Court of Human Rights. This test requires that any restriction must a) be provided by law; b) be for the purpose of safeguarding a legitimate public interest; and c) be necessary to secure that interest.

The third part of this test means that even measures which seek to protect a legitimate interest must meet the requisite standard established by the term “necessity”. Although absolute necessity is not required, a “pressing social need” must be demonstrated, the restriction must be proportionate to the legitimate aim pursued, and the reasons given to justify the restriction must be relevant and sufficient. In other words, the government, in protecting legitimate interests, must restrict freedom of expression as little as possible. Vague or broadly defined restrictions, even if they satisfy the “provided by law” criterion, will generally be unacceptable because they go beyond what is strictly required to protect the legitimate interest.

The Freedom of Information Regime

The Media Bill establishes a general right to access information held by public bodies (section 5). ARTICLE 19 has long advocated in favour of legislative protection for the right to information and, to that extent, welcomes this development. However, the regime of exceptions is so comprehensive as to render any right to information largely illusory. Furthermore, review of refusals to disclose information are heard by the Information and Media Commission, a body controlled by the government, rather than by an independent body.

Several provisions in the Media Bill provide for exceptions. The First Schedule lists a number of bodies to which the Act does not apply (pursuant to section 4). These include, among others, records held by officers of Parliament which relate to their functions, records of an elected local official which are not held by the local body and any record relating to the exercise of the functions of the President. Indeed, the First Schedule formally excludes from the operation of the Act any record which “has no bearing on the election campaign itself”, thereby restricting the scope of the Act in this regard to the election period, although it is possible that this is a drafting error. Section 9(4)(c) provides that public bodies do not have to provide information where granting access “is in the public interest”. This again is presumably a drafting error, with the word “not” missing from this phrase. Sections 15 – 26 provide for a comprehensive regime of exceptions from the duty to disclose information. Exceptions include all cabinet documents, including draft legislation, advice or recommendations provided to public bodies (with some exceptions) and information whose disclosure would “affect” relations between different levels of government or which may result in harm to the economic interest of the public body.

Pursuant to section 5, non-citizens and any mass media outlet which is not registered do not have any rights under the Act. The Media and Information Commission is responsible for reviewing, upon request, any refusal to grant access to information (sections 9(3) and Part X).

ARTICLE 19 is of the view that the right to access information held by public bodies is part of the general right to freedom of expression, which includes the right to seek and receive information. We therefore welcome any moves to provide for this right in national legislation. However, the right to information as provided for in this Bill is so thoroughly undermined by the very broad regime of exclusions and exceptions, as described briefly above, as to render the right essentially nugatory. A detailed analysis of the regime of exceptions and exclusions is not provided in this Memorandum; instead, a general critique is made.

Exceptions are only legitimate according to international standards if they meet a strict three-part test as follows:
· the information must relate to a legitimate interest clearly defined in the law;
· disclosure must threaten to cause substantial harm to that interest; and
· the harm to the aim must be greater than the public interest in having the information (in other words, the law must provide for a public interest override).

The first condition means that exceptions must serve a clear and narrowly defined legitimate interest which is set out in the law. The Media Bill includes many interests which are either not legitimate, or which are excessively vague or broad. An example is section 9(4)(c), which relieves public bodies of their obligation to disclose information whenever this is deemed (not) to be in the public interest. This reverses the normal approach, favouring openness, whereby information must be disclosed where this is in the public interest (see below).

The second condition means that even where exceptions do hinge on a legitimate interest, any particular refusal to disclose information must be based on a real risk of serious harm to that interest. Exceptions which do not require harm, termed “class exceptions”, are common in the Media Bill. For example, section 18(1)(a) provides that information shall not be disclosed where this would “affect the law enforcement process”. Under this provision, no harm is required; indeed the effect on law enforcement might be entirely salutary. Similarly, section 16(1) excludes all information relating to advice given to public bodies, regardless of whether the disclosure of this information would lead to any negative consequence.

It is now widely accepted that exceptions in a freedom of information law must be subject to a general public interest override, whereby the information must be disclosed, even where such disclosure will harm a legitimate interest, where the public interest in having the information outweighs this harm. For example, where private information about a minister discloses evidence of serious wrongdoing, it should be made available even though it is private. It is nearly impossible to frame exceptions sufficiently clearly and narrowly so as to rule out all situations in which information should be disclosed. A public interest override ensures that such information is still subject to disclosure. The Zimbabwean Media Bill does not contain a public interest override.

Another concern is that non-citizens, and even citizens who are not permanent residents do not have a right to request information under the Media Bill; this exclusion also applies to companies who have any foreign owners or members, as well as non-registered media outlets. The right to information should at the very least apply to any individual or corporation based in Zimbabwe. Furthermore, any refusal to disclose information should be subject to appeal to an independent body. Unfortunately, as detailed below, the Information and Media Commission, to whom appeals lie under the Media Bill, is firmly under government control and therefore lacks sufficient independence to undertake this important and politically sensitive task.

Recommendations:· The exceptions regime to the right to information should be reworked in accordance with the three-part test set out above as follows:o exceptions which do not serve a legitimate interest, or which are not sufficiently clear or narrow should be removed;o all exceptions should be subject to a harm test; ando all exceptions should be subject to a public interest override.· Everyone, not just resident citizens and companies fully controlled by citizens, should benefit from the right to information.· Appeals from any disclosure to refuse information should go to an independent body, not the Media and Information Commission as currently constituted.

The Media and Information Commission

The Media Bill establishes a Media and Information Commission (Article 39) and gives this body a wide range of regulatory powers over the media, including in relation to refusals to disclose information, registration of the media, accreditation of journalists and monitoring media content (Articles 9(3) and 40). The Commission is governed by a Board, all of whose members are appointed by the Minister responsible for information, after consultation with the President (Article 41). The Minister sets the term of office, as well as other terms and conditions of office, including allowances, and may remove a member on a number of grounds, some of which are highly subjective (e.g. where the member has conducted him- or herself in a manner which “renders him unsuitable”). The Minister also appoints both the chair and the vice-chair of the Board (Fifth Schedule, pursuant to Article 41(3)). The Commission has broad investigatory powers, more-or-less equal to those granted under the Commission of Inquiry Act (section 52) and, as detailed below, has broad powers to impose severe sanctions, including termination of a media outlet’s registration or of a journalist’s accreditation.

It is well established that bodies which exercise direct powers in relation to the media must be protected against political interference (i.e. that they must be independent of government). The greater the powers of the body, the more important is the need for independence. The reasons for this are obvious; otherwise there is a very real risk that media freedom will be undermined for political reasons, to the detriment of the public’s right to know and democracy. The need for independence of bodies with regulatory powers in relation to media and information has been stressed by, among others, the UN Human Rights Committee, the UN Special Rapporteur on Freedom of Opinion and Expression and the African Commission on Human and Peoples’ Rights, as well as regional human rights bodies in both Europe and the Americas. It has also been the subject of national litigation, with superior courts in countries around the world striking down legislation giving powers to bodies susceptible of government interference.

The Media and Information Commission is firmly under the control of the Minister, as is clear from the extensive powers of the Minister in terms of appointing, removing and setting the terms of office of members of its governing Board. The risk of political interference with the media is far from theoretical in Zimbabwe, where private publications have been subjected to an active campaign of harassment for some time now and where the public media are under strict government control and operate largely as mouthpieces of government.

Recommendations:· The manner of appointment of the Media and Information Commission should be radically reworked to ensure that this body is protected against political and other interference, including in the following ways:o appointments should be made by an all-party body, such as the Parliament or a committee thereof;o the appointments process should be transparent and participatory, specifically providing for an opportunity for public input;o members should be protected against removal except in clear and narrowly defined circumstances which render them clearly unable or unsuitable to perform their duties; removal should be by the appointing body;o terms and conditions of office should, as far as possible, be set out in the law; ando the Commission should appoint its own chair and vice-chair, and set its own rules of procedure.· The Media and Information Commission should be protected against interference in other ways including:o through an explicit guarantee of independence in the legislation;o by formal accountability to the public through a multi-party body; ando in funding arrangements.

Registration of the Mass Media

The Media Bill requires all bodies which disseminate mass media products to obtain a certification of registration (section 71). Dissemination is defined to include “sale, subscription, delivery, diffusion or distribution”. Furthermore, mass media products are defined to include an advertisement, any part of a periodical publication, “any electronically transmitted material, or audio or video recorded programme”. As a result, Internet providers must register, as well as even very small circulation, NGO publications, any store that rents videos, or even sells newspapers or music tapes, all newspaper delivery boys and so on (section 66).

The certificate of registration must be obtained from the Media and Information Commission, and renewed every two years (sections 71(2) and (5)). The registration fee is set by the Minister, who is given broad discretion to apply higher fees to certain types of media services (section 76).

As with requests for information, non-citizens, including any company with even one non-citizen member, are precluded from owning mass media services (section 70).

The Commission is given broad powers to terminate or suspend the activities of a mass media service upon upholding a complaint against it or for breach of the law (section 78). Individuals who operate mass media services without a registration certificate are guilty of an offence and may be fined up to Zim$1,000,000 (approximately US$18,000) and/or imprisoned for up to two years. In addition, a court may declare any equipment used in connection with the offence forfeited to the State (sections 79(2) and (3)). Furthermore, where the Minister “has reasonable grounds to believe” that a service is operating in breach of the Act, he or she may authorise the police to seize that service’s products, equipment and apparatus, pending the outcome of the criminal prosecution (section 79(5)).

News agencies are also required to obtain a registration certification, with similar consequences in case of breach (section 81).

Technical registration requirements for the mass media and/or news agencies are not, per se, a breach of the guarantee of freedom of expression. However, such requirements will fall foul of international guarantees if they are subject to political interference or if they are too broad in application. As the African Commission on Human and Peoples’ Rights noted, in a case challenging, among other things, a law establishing a licensing system and registration board for the print media:

Of more concern is the total discretion and finality of the decision of the registration board, which effectively gives the government the power to prohibit publication of any newspapers or magazines they choose. This invites censorship and seriously endangers the rights of the public to receive information, protected by Article 9.1 There has thus been a violation of Article 9.1 [guaranteeing the right to receive information].

The system established by the Media Bill, overseen by the Commission, with certain powers, for example in relation to fees, given to the Minister, clearly lacks sufficient protection against political interference. This problem is exacerbated by the excessively short registration period of only two years, which means that political interference can be brought to bear at regular intervals.

The registration requirement is massively overbroad, covering all publications, no matter how small or irregular, and all forms of electronic communication, including the Internet. It is clear from the jurisprudence of the UN Human Rights Committee that a requirement for occasional or small-scale publishers to register is incompatible with the right to freedom of expression. The Committee held that imposing sanctions on someone for distributing a document with a print run of just 200 copies was disproportionately onerous, exerted a chilling effect on freedom of expression, and could not be justified in a democratic society. The same is clearly true in relation to a range of actors covered by the registration requirement such as small-scale publishers, stores renting or selling video or audio cassettes, and newspaper delivery boys.

Although many countries impose upper limits on foreign ownership in the broadcast sector, a total ban extending to the print sector is clearly unjustifiable. A total ban not only restricts the right of foreigners to express themselves (the guarantee of freedom of expression applies “regardless of frontiers”) but is also likely to deprive the media sector of much needed foreign capital, expertise and programme content, thereby undermining the right of Zimbabweans to access a wide range of information and ideas through the media.

A brief survey of ownership rules relating to broadcasting in other countries illustrates the illegitimacy of a total ban. For example, in South Africa, “foreign persons” are barred, directly or indirectly, from exercising control over a private broadcasting licensee, from owning more than 20% of the financial or voting interests in a licensee or from holding more than 20% of the directorships. In Malawi, for non-community licences, the independent regulatory body, MACRA, may limit the financial or voting interest in the licence held by one or more foreign persons to forty per cent, as long as the restriction applies to all such licensees. In France, foreign ownership is limited to 20% of the voting rights of broadcasters. In the United Kingdom, corporations in which non-residents hold a controlling share, defined as effective control of more than 50% of the shares, may not be awarded licences. The rules relating to ownership of the print media tend to be less restrictive.

There are also serious problems with the system of sanctions for non-registration, and for other breaches of the law, in particular that it is excessively harsh and grants discretionary powers to the Minister, a political actor. Suspension and termination are, for media outlets, the most extreme sanction possible and should be applied, if at all, only after repeated and gross abuse of the law, as determined by a court. Similarly, for individuals the threat of imprisonment for non-registration, particularly where the scope of the registration requirement is so broad and unclear, is bound to exert a chilling effect on freedom of expression. Finally, there is no justification for granting the Minister power to order the seizure of media equipment. The principle that all regulatory powers in relation to the media must be exercised by independent bodies applies to sanctions, as well as to other powers.

Recommendations:· Ideally, the registration requirement should be dropped from the law altogether.· Alternatively, registration should be a purely technical process, overseen by an independent body, and of a duration of at least five years.· Any registration requirement should apply only to the mass media, defined as large circulation, regular newspapers and broadcasters; it should not apply to small publishers, video or audio material, or those who sell or otherwise distribute media products.· Foreign ownership of the mass media should not be prohibited; limits on such ownership should be imposed only to the extent that this can be shown to be in the interests of the sector and the public as a whole.· The sanctions regime for non-registration should not grant any powers to political bodies or individuals, and should be strictly proportionate to the nature of the breach; harsh sanctions should be imposed, if at all, only after repeated and gross abuse of the law, as determined by a court.

Accreditation of Journalists

The Media Bill defines a journalist broadly as anyone who “gathers, collects, edits or prepares messages and materials for the office of a mass media” (section 66). The Media Bill does establish some rights for journalists, mainly in relation to access to information and to report in a manner consistent with their conscience (section 85). The Media Bill also requires journalists to obtain accreditation and prohibits mass media outlets from employing anyone as a journalist who is not accredited (sections 86(1) and 94). Accreditation lasts for just 12 months, but may be renewed (section 95).

The Media and Information Commission is responsible for overseeing the process of accreditation, according to the “form and manner” prescribed by the Minister (Sections 86 and 92). No one may be accredited as a journalist who does not possess the “prescribed qualifications” or who is not a resident citizen of Zimbabwe (section 93).

Foreign mass media may set up representative offices only with the permission of the Minister but only locally accredited journalists (i.e. Zimbabwean resident citizens) may work as foreign correspondents (section 101).

The Commission has broad powers to discipline journalists, including to terminate or suspend accreditation, to impose fines of up to Zim$50,000 (approximately US$910), to impose such conditions as it deems fit on their right to practise, and to refer them for prosecution (section 96). Mass media services may be suspended or terminated for employing non-accredited journalists, pursuant to general provisions regarding breach of the law (section 78(4)).

Any obligation on individuals to be accredited as a journalist is incompatible with the right to freedom of expression. In an Advisory Opinion concerning a licensing scheme for journalists in Costa Rica, the Inter-American Court of Human Rights clearly stated the principle:

[T]he compulsory licensing of journalists does not comply with the (right to freedom of expression) because the establishment of a law that protects the freedom and independence of anyone who practices journalism is perfectly conceivable without the necessity of restricting that practice only to a limited group of the community.

This problem is exacerbated by the, as yet undetermined, requirement that journalists must have certain “qualifications”. The right to freedom of expression, which applies to all media, means that the State may not place conditions on individuals seeking to express themselves through the media, as the above quotation makes clear.

The illegitimacy of mandatory accreditation for journalists is highlighted by the paucity of arguments in favour of it. If an individual feels personally insulted or attacked by a TV or radio broadcast or a newspaper article, they can institute civil defamation proceedings against the concerned organisation, editor or writer. Registration is therefore unnecessary to protect individual reputations. Furthermore, registration is excessively onerous for newspapers that use a large number of journalists, and it exerts a chilling effect on occasional publishers. This has been recognised in practice by other countries in the region and around the world.

Furthermore, as has already been stressed, no powers in the area of the media should be exercised by bodies which are not independent. This condition is clearly not met in relation to accreditation of journalists, given the extensive roles of both the Commission and the Minister. Again, this problem is exacerbated by the excessively short accreditation period of only 12 months.

There is simply no warrant for what amounts to a total ban on non-citizens and non-residents working in Zimbabwe for media outlets, either local or foreign. No democratic country, and indeed very few countries at all, impose restrictions of this sort on foreign journalists.

The powers of the Commission to discipline journalists are unjustifiable not only because the Commission is not independent, but also because they apply in totally undefined circumstances and are excessively harsh. The only condition placed on these powers is that the Commission shall give the journalist a fair hearing; the Media Bill nowhere sets out what sorts of breach might legitimately lead to sanctions. This effectively gives the Commission the power to set standards on an ad hoc and even post facto basis. Furthermore, the power to terminate or suspend accreditation can never be legitimate. Denial of the right to express oneself can never be justified for any crime, no matter how heinous, and can certainly not be justified for a breach of professional rules as applied by an administrative body.

Recommendations:· Individual journalists should not be required to obtain accreditation before being allowed to work as journalists.· No formal conditions should be imposed on who may practise journalism.· The Commission and/or Minister should not exercise any powers over individual journalists, including in relation to qualifications or discipline.· Non-citizens and non-residents should not be prohibited from working as journalists in Zimbabwe, either for local media outlets or for foreign media, subject only to general immigration laws.

Content Restrictions

The Media Bill places a number of restrictions on what journalists may publish in or broadcast via the mass media. Some of these restrictions, like the prohibition on using the mass media to commit a criminal offence, are legitimate. Others, however, do not meet the test for restrictions on freedom of expression under international law. For example, section 69(1)(e) prohibits the use of the mass media for “denigrating, bringing into hatred or contempt or ridicule or to excite disaffection against the President, the law enforcement agents or the administration of justice”. Breach of this restriction may lead to a fine of up to Zim$100,000 (approximately US$ 1800) or imprisonment for up to 2 years.

Section 69(1)(e) is a species of sedition law, widely regarded as unjustifiable as a restriction on freedom of expression. Sedition laws have been repealed or struck down in a number of jurisdictions, severely limited by courts in other jurisdictions, and fallen into disuse others. As a result, prosecutions for sedition are practically unknown in democratic countries. These provisions are of particular concern inasmuch as they relate to the President leading into a presidential election. Denigrating or ridiculing the president is all part of the cut and thrust of politics.

Section 89(1) imposes a number of further restrictions on journalists, including:
· spreading “rumours, falsehoods” or causing “alarm or despondency” under the guise of authentic reports;
· collecting and disseminating information on behalf of someone other than his or her mass media employer, unless he or she is a freelance journalist; and
· deliberating spreading information that discredits a person on the basis of, among other things, profession, place of residence or political conviction.
Breach of these provisions can, as with section 69(1)(e), lead to a fine of up to Zim$100,000 or imprisonment for up to 2 years.

It is well established that criminal prohibitions on spreading rumours or false news are unjustifiable as a restriction on freedom of expression. Even the very best journalists make mistakes and criminalizing such mistakes exerts an unacceptable chilling effect on freedom of expression and serves very little purpose. Indeed, a prohibition on false news was recently struck down by the Supreme Court of Zimbabwe in a case involving two journalists, Mark Chavunduka and Ray Choto, who, in January 1999, were tortured for alleging there had been a coup attempt in the army. They were ultimately charged with breach of section 50(2)(a) of the Law and Order (Maintenance) Act, prohibiting the dissemination of false news likely to cause fear, alarm or despondency. The Supreme Court unanimously and unambiguously struck this provision down as a breach of the guarantee of freedom of expression. It is, therefore, somewhat surprising that the authorities are attempting to reinstate a clearly unconstitutional provision.

The prohibition on disseminating information other than for one’s main employer is less insidious, but still unjustifiable as a restriction on freedom of expression. In the first place, this is a contractual matter to be arranged between journalists and their employers. In any case, such a broad prohibition, which would, for example, prevent an employee journalist from writing a biography under contract, cannot be justified.

The prohibition on spreading information that discredits someone, for example, for political opinion, seems designed to limit open political debate, a matter of some concern in the lead-up to an election. Indeed, the essence of politics is to discredit one’s challengers on political grounds. Similarly, there is no reason why someone should not, for example, make fun of lawyers or those who live in exclusive neighbourhoods.

Pursuant to section 87, the Commission is required, in consultation with journalists and the mass media, to develop a code of conduct for journalists. Pursuant to section 78(3), the Commission may, upon determination of a complaint against a mass media outlet, suspend, terminate or otherwise censure that service. Section 96 gives the Commission broad powers to sanction journalists, as detailed above.

Journalists’ ethics are a matter of personal conviction and professionalism, and it is illegitimate to impose codes of personal conduct on journalists. It may be legitimate to impose codes on the media as a whole, but only where the following conditions are met:
· the media has proved unable to develop self-regulatory codes;
· the body developing and applying such codes is independent; and
· the system of sanctions does not exert a chilling effect on freedom of expression.
The latter condition means that sanctions should normally consist only of a warning or a requirement to print the decision of the body which has found a breach of the code. Clearly the provision for a code of conduct in section 87 meets none of these conditions.

Recommendation:· The restrictions on content found in sections 69(1)(e) and 89(1)(c), (d) and (e) should be removed from the Media Bill.· The Commission should have no power to develop and apply a code of conduct for either journalists or media outlets.