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From: Media Institute of Southern Africa (MISA), [email protected]

Subject: Zimbabwe Alert Update
Date: Friday, February 01, 2002 3:19 AM

Zimbabwe Alert Update
February 1, 2002
Parliamentary Legal Committee declares draconian media Bill unconstitutional

The Parliamentary Legal Committee (PLC) has declared Zimbabwe's
controversial
and draconian media Bill, the Access to Information and Protection of
Privacy
Bill, currently under consideration in the Parliament as unconstitutional.

The PLC chaired by Harvard trained lawyer and ruling party, Zimbabwe African
National Union Patriotic Front (ZANU PF), member of Parliament Dr Eddson
Zvobgo
declared that 20 sections of the Bill are unconstitutional as they infringe
on
Sections 20 of the constitution of Zimbabwe.

The PLC scrutinizes Bills to determine if they fall within the provisions of
the
constitution before they are passed into law. The Committee said that the
Information Bill gives too many powers to the minister and the media
Commission.
It said that if passed into law in its present form the Minister of
Information
would assume judicial and investigative powers, which are the preserve of
the
police and the Courts. The Committee also said that the Media Commission
would
violate the rights of people such as one to privacy and freedom of
expression.
The Leader of The House and Justice Minister Patrick Chinamasa and the
Attorney
General Andrew Chigovera conceded that the
Bill contains some unconstitutional clauses and that they would look into
them.

Find below the full report by the PLC Chairperson, Dr. Eddison Zvobgo

Giving a summary of the findings of the committee Zvobgo said that Clauses
14,15, 40, 47, 54, 67, 68, 69, 70, 71, 72, 75, 77, 80, 82, 86 and 93 are as
a
whole and in part unconstitutional. According to the PLC Clause 14 (Part 1)
which provides the purpose of the Bill, stating that the broad purpose of
the
Bill are: "To provide members of the of the public with a right to access of
records and information held by public bodies, to make public bodies
accountable
by giving the public a right to request correction of misrepresented
personal
information to prevent the unauthorized disclosure of personal information
by
public bodies to protect personal privacy, to provide for the regulation of
the
mass media, to establish a Media and Information Commission and to provide
for
matters connected herewith or incidental to the foregoing."

The PLC said that these are laudable objectives, but to be constitutional
these
objectives must be pursued with due regard to our Bill of Rights, the
constitution and other laws generrally. Clause 14 goes on to say: "No action
shall lie and no proceeding may be brought against government, a public
body,
the head of public body or any person acting on behalf or under the
direction of
the head of a public body, for damages or other legal consequences from the
disclosure or non disclosure, in good faith, of all or part of a record."

The PLC reports that in granting the right of access to records containing
personal information to every person, as matter of right if that information
is
in the custody of a public body, the Bill
seeks to break new ground.

"That generosity must however not infringe section 18 of the constitution to
the
extent that it deprives those affected by it, the protection of the law by
denying them access to the courts, in the
circumstances where persons have been harmed, or suffered detriment or loss
by
unlawful conduct arising directly from the unlawful disclosure. The PLC goes
on
to say that the Minister of Information seeks a blanket immunity to shield
hundreds of thousands of people employed by public bodies from civil actions
for
damages even where the motivation for disclosure was willful and malicious.
"The
shield seeks to raise and arm unlawful acts under the guise of 'acting in
good
faith'. To be lawful 'acting in good faith' should be a defence, nothing
more.
The court s should be the judges of whether the claimed or alleged "good
faith"
was actually good faith. To provide as the Minister does here, for the
ousting
of the jurisdiction of the courts by such phrases as "No action shall lie
and no
proceeding may be brought against the government' IS PATENTLY
UNCONSTITUTIONAL,
No employee of a public body should be immune from unlawful acts, which
cause
harm to others by merely filling a certificate reciting or asserting "good
faith". This clause is unconstitutional.

CLAUSE 40: FUNCTIONS AND POWERS OF COMMISSION:
Some paragraphs of this clause refer to "Mass Media Services" or simply
"Mass
Media". It is plain that some of the proposed powers of the commission are
unconstitutional for vagueness and arbitrariness apart from being in
violation
of section 20 (2) of the constitution.

The Ministry of Publicity and Information seeks grant themselves frightening
powers, acting through its commission. Consider the following: "40 (1) (g) "
To
conduct investigations and audits to ensure compliance with any provision of
this Act". We have the Zimbabwe Republic Police who should conduct
investigations and audits if any law is being broken. The paragraph does not
say
what "investigations" or "what audits". It is too broad, too vague to be
constitutional. It is intended to raid media houses from time to time under
cover of "investigations?" This or any other possible purpose would be an
unjustified intrusion into freedom of speech or expression entrenched in
Section
20 (2) of our constitution.

(k) "To review the decisions of public Bodies" Given that "public bodies"
means
any body prescribed as a public body in terms of the first column to second
schedule of this Act, the commission will review the decisions of "Any
GOVERNMENT agency, or the office of which the Permanent Secretary is not the
head, High Court, Magistrates Court and Community Court as well as local
authorities.

Supposing that it is now government policy that one Ministry is now the
government as proposed here the desire to review the decisions of all courts
including the Supreme Court, is clearly unconstitutional. Whether it is
possible
for the commission set up under this Bill to review the decisions of the
Ministries of Defence and Finance, State Security or any other government
department would be a matter for the PRESIDENT AND CABINET and therefore
none of
the business of your committee (PLC).

(i)"Authorize the collection of personal information from sources other than
the
person to whom the information relates". It is seriously suggested that if
setting up a spy agency to spy on Zimbabweans should be a lawful power of
the
commission, Zimbabweans would lose their privacy. It is not stated why this
power is being sought and so the sub paragraph is unconstitutional.

® "To perform any power or function that the Minister may, from time to
time,
prescribe as a power or function of the Commission". This provision seeks a
blank cheque. Since we have a justiciable Bill of Rights, this paragraph is
unconstitutional.

CLAUSE 47 (A)

The matter of paying levies into the media and Information Fund to be
established in terms of Clause 44 is, on the face of it proper and
necessary.
However, Clause 47 (4) provides a penalty that is excessive. It reads:

"Where a mass media owner fails to pay the whole or any part of a levy and
any
penalty in terms of
subsection (3) after being called upon to do so by the Commission within a
period specified by it, the Commission may suspend the registration of the
owner
in terms of part XI".

Your Committee, Mr. Speaker, is of the view that that clause 47 (4) is
unconstitutional as undue infringement of expression to the extent that it
permits the suspension of the registration of mass media owners for failing
to
pay levies due to the commission. This goes far beyond what can be termed a
reasonable restriction of the right of freedom of expression. The remedy for
one
who fails to pay a tax is a suit against that person and not suspension of
registration.

Section 47 (5) takes care of the situation rationally.

CLAUSES 52 AND 54

These two clauses raise the same matter of immunity from legal prosecution
which
your committee has dealt with in our consideration of clauses 14. Clause 52
provides that " any statement made,
information supplied or record produced by a person during an investigation
or
inquiry by the Commission shall be privileged and shall not subject the
person
to defamation charges."

Clause 54, in similar fashion, seeks to protect staff of the Commission from
liability.

"No liability shall attach to the Commission, or to a person acting on
behalf of
or under its direction, for anything done, reported or said as a result of
the
bona fide exercise or performance or the intended exercise our performance
of a
duty, power or function conferred under this."

Our Constitution and laws provide immunity in relation to debates in
Parliament
and, of course, to report of all judicial proceedings. To suggest that the
same
immunity be extended to a commission some of whose powers and functions are
unconstitutional is absurd. This provisions falls out of the four corners of
section 20 (2) of the constitution and therefore they are unconstitutional.

PART XI: REGULATION OF MASS MEDIA SERVICES

(i) Under what section 67 terms " Abuse of freedom of expression"
(subsection 1
©, "Any person accredited or organization registered in terms of this Act
shall
not make use by any means, of a mass media service for the purpose of-

(d) Distributing materials, propagating pornography, bestiality or the cult
of
violence and
cruelty- such a person is guilty of an offence and is liable to a fine not
exceeding one hundred thousand dollars or to imprisonment for a period not
exceeding two years.

This provision does not prohibit pornography but instead prohibit materials
propagating pornography. The meaning of pornography is "slippery". As for
the
'cult of violence", few would hazard what that means. This paragraph is not
sufficiently precise so that people can regulate their conduct knowing with
reasonable certainty what the law is. The paragraph is therefore
unconstitutional for vagueness.

(ii) Paragraph (f) of section 67 of the Bill makes it a crime for any person
to
publish "a fabricated record of personal information". What, we ask as
members
here, is what exactly is the specific crime? This so called offence is
meaningless and unconstitutional.(iii) Clause 68 is styled "Restriction on
ownership of mass media service". In its redrafted form this clause
restricts
and limits the right of ownership of mass media services to citizens or
companies that are controlled by citizens, and prohibits unlawful
organizations
and insolvents from owning mass media services. Further, it is proposed that
foreigners (i.e. people who are neither citizens of Zimbabwe nor permanent
residents of Zimbabwe may not hold any shares in a mass media service.
Whether
this is desirable or wise public policy is not the business of your
committee.
What is clear, beyond any reasonable doubt, is that the provisions are
unconstitutional. Let me remind honorable members once again that any
restriction on freedom of expression or speech must fall within the limits
prescribed by section 20 (2) of the constitution (i.e. in the interest of
defence, public order, public safety, the economic interest of the state
public
morality or public health). How does the buying of by a foreigner of
ZIMPAPERS
fall foul of any of these walls? A non-citizen media owner does not
necessarily
pose a threat to the country's defence or economic interests, to public
safety,
to public order, or to public morality or health. This clause is over broad.
We
have hundreds of Zimbabweans working as broadcasters, as newspaper owners in
South Africa and other countries. The clause is unconstitutional.

(iv) Clauses 69-75 also cause surprise. Clause 69 requires that "a mass
media
owner shall carry on the activities of a mass media service only after
registering and receiving a certificate of
registration in terms of this Act.

There are no reasons given for this requirement (which exempts the ZBC or a
representative office of a foreign mass media service permitted to operate
in
Zimbabwe in terms of section 93 of the bill)
It should be obvious that the only reason for this provision is to impose
control by government over mass media owners and their products. They cannot
operate without registration. To that extent,
this provision restricts the freedom of expression of mass media owners. To
be
constitutional this derogation must be shown to be within the four corners
of
Section 20 (2) of the constitution. Since
this cannot be done it follows that it is unconstitutional.

There are further grounds on which these Clauses are unconstitutional Clause
74
(3) states that "if a mass media services" certificate of registration is
cancelled by the Commission, it must cease to operate and may not reapply
for
registration for two years."

This restriction is wholly arbitrary and, for that reason, unconstitutional.
It
stands on all fours with close 70(3) above. This ban on re-registration
would
apply even if the services activities were terminated as a result of a
wholly
commercial dispute which would have nothing to do with defence, public
safety,
public order, the states economic interests, public morality or public
health.
Bearing all the above in mind, Honorable members need to be reminded that
clause
75 (5) states that if the Minister has reasonable grounds for believing that
anyone is operating a mass media service in contravention of the Act, he,
shall
(i.e. the must) issue a certificate authorizing the seizure and impounding
of
the mass media services equipment and products. As with the equivalent
clause in
the old Bill, this clause represents a radical departure from normal
investigative procedures where the power to issue a search warrant is vested
in
judicial officers. It plainly exceeds the bounds laid down by section 16(k)
of
the constitution, which allows property to be
taken "for so long as may be necessary for the purpose of management, etc."
But
surely, if the defects are corrected they are not banned forever from the
economic scene, for all these reasons, Clause 70 is unconstitutional. These
clauses are unconstitutional and are not supported by any of the exceptions
listed in Section 20 (2) of the constitution. The conclusion is compelling
that
if enacted this clause would be unconstitutional.

CLAUSE 70: IV

Provides for registration and notification of changes

As stated in Clause 69, " a mass media owner shall carry on the activities
of a
mass media service only after registering and receiving a certificate.
Similarly, a mass media service shall also register with the commission. The
certificate is valid for only two years in terms of the Bill. We have
already
argued that these registration requirements are them selves unconstitutional
as
no
reasons have been put forward for that requirement.

What is particularly painful is that an investor who sets up a printing
press
business in order to publish newspapers and invest millions of dollars
having
been issued with a certificate faces an
uncertain future. At the end of the two years he is certified to operate, he
must reapply for re registration each time the owner is replaced or were
co-owners change or where ever there is a change in the name, language, form
and
frequency of the periodical dissemination of mass media. Products or even
or
even when the area the mass media products are circulated is changed. It is
this
kind of policing that is unlawful. No reasons on all intrusions of freedom
are
given. It is safe to assume that mass media owners will register a company
in
terms of the Companies Act memorandum and Articles). It is permissible to
state
exhaustively all spheres of economic
enterprise the company might engage in. No one is required to re-apply for
registration each time a new branch is opened or where the owner is replaced
or
where the co-owners change.

Clause 70 (3) provides that " a mass media service whose activity is
terminated
by a decisions of a court of law shall not be re-registered- apparently
forever.
No reasons are given for this rule. A court may place a business under
liquidation or judicial management, etc but surely, if the defects are
corrected
they are not banned forever from the economic scene. For all these reasons,
clause 70 is unconstitutional. These burdens are an excessive intrusion into
freedom of expression and are not supported by any of the exceptions listed
in
section 20 (2) of the constitution.

CLAUSE 77 (V)

This clause is both unconstitutional and entertaining. It says (1) "Subject
to
this Act, no person shall carry on or operate a News Agency without a valid
certificate issues in terms of this
part

77 (2)SSSSSSS.

77(3) "A person who contravenes subsection shall be guilty of an offence and
liable, upon conviction to a fine not exceeding Z$ 1 million. Or to
imprisonment
for a period not exceeding two years or both fine and imprisonment".

Honorable members, where, in a democratic societies is a person fined one
million dollars for mere failure to register in order to exercise his
freedom of
expression? Why is failure to register, which can result from several
innocent
causes considered such a heinous crime? Paragraph (4) of section 77 empowers
the
court, in addition to the fine or imprisonment "to declare forfeited to the
state any equipment or apparatus used for the purpose of or in connection
with
the offence".

Further Honorable Members; please listen to the words of paragraph (6) of
section 77:

"If the minister has reasonable grounds to believe that a news agency (News
agency is not defined) is being operated in contravention of the Act, he
shall
issue a certificate authorizing the police to seize the said agency's
equipment
or apparatus, and impound them pending the finalization of the criminal
prosecution on this Section.Why would the minister or any Minister seek such
overwhelming power from this parliament? He would have a Commission, if the
Bill
passed, which could be empowered to take legal action or other lawful
action.
All news agencies would live in terrorem of the Minister if these provisions
pass because the penalties he can impose are evastating.
Should the minister of commerce and International trade, or Finance, be
given
the same powers in relation to their portfolios? They would go around with
certificates in their briefcases looking for
businesses to close down. If the Minister has reasonable grounds to believe
that
such businesses are operating in contravention of some certain Act. These
provisions are arbitrary, dictatorial and
unconstitutional.

Mr. Speaker, Part xii is devoted to journalists- their rights,
accreditation,
abuse of journalistic privileges, extent of status and recognition of
journalists, prohibition against practice by or in association with an
unaccredited journalists. The Clauses 80, 82, 86, 92 and 93.

(a) Clause 81 attempts purports to confer rights on journalists. Such an
attempt
is unconstitutional. Their existence does not require legislation as freedom
of
expression is enshrined in section20 (1)
and (2) of the constitution is sufficient.(b) Section 82 attempts to compel
every journalists to be accredited by a Commission before he can work in
Zimbabwe and furthermore attempts to restrict the profession of journalism
to
Zimbabwean citizens or to those who are permanent residents. We have already
demonstrated that all such attempts are unconstitutional as they violate
Section
20 of the constitution. We have also argued that the word 'person' in
relation
to the exercise of freedom of expression, means "any person" whether citizen
of
or resident foreigner in Zimbabwe.

(c) Section 83 provides for what is termed journalistic privilege. A
constitutionally entrenched right is not a privilege but right. Mr. Speaker,
as
with Clauses 81, 82, 83, the rest of the clauses in this Part XII. Except
for
clause 89 (correction of untruthful information) it is apparent that no
regard
was taken of the imperatives of Section 20 of the constitution.

CONCLUSION
Your committee considers that there is abundant evidence to support an
adverse
report. We are not a court of law. If it pleases the house to override our
report, we will remain comforted in the view that we did discharge our
burden to
the best of our ability.
END

In his opening remarks on the report the chairman said that:

Section 20 (1) of the Constitution of Zimbabwe protects freedom of
expression as
it states that:"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".
(2) Nothing contained in. Any law shall be held to be in contravention of
subsection (1) to the extent that the law in question makes provision-
(a) In the interest of defence, public safety, public order, the economic
interest of the state, public morality or public health;
(b) For the protection of-
(i) Protecting the reputations, rights and freedom of other persons
(ii) Maintaining the authority and independence of the courts or tribunals
of
parliament;
(iv) Regulating the technical administration, technical operations or
general
efficiency of telephony, telegraphy, posts and wireless broadcasting or
television

Except so far that provision is shown not to be reasonably justifiable in a
democratic society."

Zvobgo said that it is clear that limitations on the right such as freedom
of
expression, will be declared unconstitutional if they are "overbroad",
covering
not only cases that fall within the terms of sub section "2" but also cases
outside it. Quoting previous Supreme court judgments that supported freedom
of
expression, Zvobgo said that in the Munhumeso and others, 1994 (1) ZLR 49
(S) at
56G and 57A, the former Chief Justice Gubbay, speaking for the court said
that
"Freedom of Expression which is in this section (Section 20) is one of the
most
precious of all the guaranteed freedoms and which together with freedom of
assembly lies at the foundation of a democratic society. The Chief Justice
commented further that it is trite law that any provision in a justiciable
Bill
of rights must be given generous interpretation and derogations from the
entrenched right, even those expressed in the constitution itself must be
strictly construed.

Zvobgo went on to say that this means that the interest of "Defence, public
safety, public order and the other interests specified in subsection (2) of
section 20 of the constitution will not be interpreted widely so as to allow
great limitations to be placed on the right of freedom of expression. Any
law
that limits freedom of expression must be sufficiently precise as to enable
a
person to regulate his conduct, knowing with reasonable certainty what the
law
is and what actions are in danger of breaching the law."

Commenting further on the Access to Information and Protection of Privacy
Bill,
Zvobgo said that the Bill is draconian and undemocratic."In its original
form
the Bill was the most calculated and determined assault on our liberties
guaranteed in the constitution. In the 20 years that I have served as a
cabinet
minister and as a member of the Cabinet Committee on legislation for 16 of
those
years," said Zvobgo.The Chairperson of the PLC thanked the leader of the
House
and Justice Minister Patrick Chinamasa for giving a "human face" to a
blatantly
unconstitutional Bill."Your committee expresses its gratitude to the leader
of
The House who is also the Minister of Justice, Legal and Parliamentary
Affairs
Honorable Chinamasa for his unstinting heroism, through amendments, to give
this
bill a human face," said Zvobgo. We applaud the effort, as his Ministry was
able
to amend, repeal, and re-word several provisions, which were blatantly
unconstitutional. It matters of regret that some unconstitutional clauses
still
remain.

Signed
DR EJ ZVOBGO
CHAIRMAN
PARLIMENTARY LEGAL COMMITTEE
HARARE
ZIMBABWE

Ends

------------------------

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