Zambia Alert Update

August 31, 2004

Victory: Court dismisses State application against media bodies

*The following is an update of MISA Alerts and statements issued on March 12 and 23, 2004. See www.misa.org [2] for more information.

On August 27 2004, the Lusaka High Court dismissed an application by the state arguing that six media organizations that sued the state had wrongly commenced the matter of challenging the legality of government’s decision not to take all the recommended names appointed to sit on the Independent Broadcasting Authority (IBA) and the Zambia National Broadcasting Services (ZNBC) boards to parliament for ratification.

In his ruling in chambers, High Court Judge Gregory Phiri said the matter was properly commenced before the court and could therefore be heard by judicial review.

This followed an objection by the state in a preliminary hearing on August 24 saying the six organizations - except the “Post” newspaper, had legal authority to sue the state in the case and that the matter was not supposed to be commenced in the first place due to irregularities relating to Order 53 of the Supreme Court Practice Rules.

He said the organizations also have legal authority to seek judicial review over Information and Broadcasting Services Minister Mutale Nalumango’s refusal to take to Parliament names of the Independent Broadcasting Authority (IBA) and the Zambia National Broadcasting Services (ZNBC) board members.

He said the decision to leave out some names was made by Information and Broadcasting Services Mutale Nalumango, in the exercise of her statutory powers under the Independent Broadcasting Authority Act No.17 of 2002 and the ZNBC (Amendment) Act No. 20 of 2002.

“It is apparent that the applicant’s aim is at challenging the legality of the minister’s decision made in the exercise of her statutory powers under the Independent Broadcasting Act No. 17 of 2002 and the Zambia National Broadcasting Corporation (Amendment0 Act No.20 of 2002,” he said.

Judge Phiri said there was a decision involved by the minister and that decision was administrative in nature and could be subject of judicial enquiry. He stated that the subject matter of the application for judicial review by the media associations was not about interpretation of statutory provisions but about the decision made by the minister.

“Clearly this decision cannot be vividly said to be a question of interpretation of statutory provisions per se,’ he said.

BACKGROUND

On August 24 2004, the Court allowed the media bodies to make amendments to the legal action to show names of individuals to sue on behalf of the respective organizations.

Those that have sued the state and the Minister of Information and Broadcasting Services include the Media Institute of Southern Africa (MISA)-Zambia, Press Association of Zambia (PAZA), Zambia Media Women’s Association (ZAMWA), Society of Senior Zambian Journalists (SSZJ), Zambia Union of Journalists (ZUJ) and the “Post” newspaper.

Despite the coming into effect of the IBA and ZNBC Acts in December 2003, and the fact that the Appointments Committees have submitted names to the Minister in order for her to take them to the National Assembly for ratification, the Minister has not done so to date. MISA consequently demanded that the minister submits these names to Parliament for ratification without any further delay in the interests of transparency and good governance.

The IBA Act removes the Minister of Information’s regulatory powers in terms of awarding broadcasting licenses to non-state broadcasters, which will instead be performed by a publicly nominated board ratified by Parliament. Delays in the ratification of this board means that the Minister of Information so far continues to control this function. The government refused to surrender its right of licensing the ZNBC, but the new ZNBC act does require the state broadcaster to transform into a public broadcaster serving the diversity of political views and interests across the spectrum. It also enables the government to charge the public a TV license fee. Additional funds are urgently required to refurbish the antiquated equipment and facilities of the state broadcaster.

Ends