By Tabani Moyo
The more things change the more they remain the same in the Zimbabwean context in as far as it pertains to the media law and policy reforms.
Zimbabwe has taken too long to arrive at the point of reviewing undemocratic laws for the people to settle for less.
Hence there is a need for the process to be guided by the regional and international best practices.
The government needs to ensure that the process is carried out wholeheartedly, with the view of further developing the industry, its players and the society at large.
It should ensure that all the stakeholders are engaged in this process in a holistic manner and that the views of these varying stakeholders be considered fairly.
Furthermore, the final products should meet the constitutional and regional standards litmus test.
Having noted the foregoing, Misa Zimbabwe has been engaged in the reform process of the media laws, which started in the Mugabe era through the Ministry of Justice’s alignment process of the laws to the new constitution.
This is under the auspices of the Inter-Ministerial Taskforce chaired by the attorney general of Zimbabwe.
The process started on a slow note during the Mugabe era with the then permanent secretary in the Information ministry George Charamba blowing hot and cold!
Through Misa submissions, the organisation became a technical partner as a stakeholder leading to meetings that were convened in April and June 2017, where the then permanent secretary did not pitch up arguing that the ministry did not have a lawyer so they were never sure what the taskforce required of them.
He would, later on, despise the process in the press, singing praises the archaic Access to Information and Protection of Privacy Act (AIPPA).
There were changes in the media ministry in the aftermath of the 2018 elections both at political and secretariat levels.
This saw the ministry playing ball for the first time.
By December, 2018, the ministry held a consultative meeting at Pandari between December 7 and 8, where the Media Alliance stakeholders were officially shown the drafts in the form of the Zimbabwe Media Commission (ZMC) Bill, Freedom of Information Bill and proposed principles for the Data Protection and Broadcasting Services Act (BSA) Bills.
These engagements were the first instance in which media stakeholders and the new administration differed on a matter of principle.
The new permanent secretary Nick Mangwana had announced the government’s intention to license 10 community radios owned and financed by the state, something that is not in sync with democratic practices.
The two Bills with the full text were highly controversial (BSA and ZMC) leading to Misa and the Zimbabwe Association of Community Radio Stations (Zacras) issuing statements expressing disappointment at the way the process was being handled.
This led to the Nyanga meeting between March 21 and 26, 2019, the workshop meeting of 50 participants, with only three civil society organisation representatives.
I attended the meeting alongside Loughty Dube, the director of the Voluntary Media Council of Zimbabwe (VMCZ), who represented the Media Alliance of Zimbabwe (MAZ) and media lawyers Chris Mhike as well as Tafadzwa Mugabe.
The government had more than 18 lawyers in the room. At this meeting, the key issues on the tabled Bills were highlighted as below:
· Retention of provisions that criminalise the profession
· Reluctance to recognise co-regulation
· Commission being subservient to the powers of the minister, thereby compromising its independence, among other things.
Freedom of Information Bill
· Almost half of the Bill contains restrictions on the right to access information
· Reluctancy by the government to provide for declassification of information after a defined timeframe
· Language of request for information; retrieval and storage of information, among others
· Limitation of investment to 20%
· Outlawing denotations — yet community radios establish through seed funds
· Role of the ministry in the running of the BAZ among other statutory bodies
The government on July 5, 2019, gazetted the Freedom of Information Bill [H.B. 6 of 2019]. Misa Zimbabwe will issue a consolidated factsheet on this Bill. Below are, however, our immediate responses:
1. The gazetted Bill is shocking, as it falls below the purported Bill it seeks to repeal and disregards the views of the stakeholders.
2. The Bill in its current state fails to give effect to either the letter or spirit of the right to access information found in Section 62 of the constitution.
3. The Bill is regressive when compared to the previous draft version of the Bill shared with and discussed by stakeholders during engagement meetings held by the Information Media and Broadcasting Services ministry in December 2018 and March 2019. In fact, it is a total departure from most of the positions agreed upon between the ministry and media stakeholders.
4. This means the right to access information will apply differently to citizens and differently to non-residents and non-citizens. Yet the right to access information is a fundamental right enshrined in the Universal Declaration of Human Rights, and must, therefore, be applied equally to all people.
5. Imposing compulsory, voluntary disclosure mechanisms only on public institutions and not private entities as well. More so, when one considers the amount of information controlled by private entities such as mobile network operators, medical service providers, private financial institutions and property developers.
6. Just like AIPPA, the Bill also sets out the scope of limitations on the right to access information. Some of these limitations are reasonable, for example, the right to access information may not be relied on to access organisational trade secrets. However, some limitations are not justifiable in an open and democratic society that Zimbabwe aspires to be.
One such limitation is the one on access to information on government borrowing.
7. The Bill also sets out additional functions assigned to the ZMC. The ZMC, will in terms of this law, be responsible for overseeing the fair application and exercise of the right to access information in Zimbabwe. Furthermore, the ZMC will receive and decide appeals against refusal of requests for the access to information.
8. However, it is more favourable to give the responsibility to oversee the enjoyment and exercise of the right to access information to the Zimbabwe Human Rights Commission (ZHRC). Indeed, this was the case in the ministerial draft of the Freedom of Information Bill. In terms of section 243(1)(a) — (d) and (f) of the constitution, the ZHRC is tasked with the promotion, protection, development, and attainment of human rights and freedoms. These human rights and freedoms indubitably include the right to access information.
9. Section 3(b) and 5 of the Bill seek to cultivate a culture of voluntary disclosure of information by public entities and statutory bodies. Section 5 of the Bill imposes a duty on such bodies to produce a written information disclosure policy. The rest of the Bill is silent on the practical steps necessary to enforce or strengthen these voluntary disclosure mechanisms. This is indeed disappointing.
10. The Bill states that requests for information may only be in writing, this means that oral requests for information are not valid. This restriction on how information may be accessed will unjustifiably inhibit the blind and illiterate from being able to seek information.
11. Requests have to be finalised within 21 days calculated from the day the request is submitted. An entity may extend this turnaround period by an extra 14 days. If there is no response to the request for information within 21 days, Section 10 of the Bill regards that as deemed refusal to give the requested information. No explanation will be necessary in those circumstances.
12. There is no mechanism in the Bill that would prevent the abuse of these deemed refusals. The only recourse an applicant has to a deemed refusal is to appeal to the ZMC. Appeals to the ZMC must be lodged within 30 days of the date of notification of the decision being appealed against. The secretary of the commission may condone the admission of late appeals, but this is at the secretary’s discretion. The ZMC must finalise appeals within 30 days of receiving appeals.
13. Under the ministerial draft Bill, the High Court was the final appellant body on issues of denied access to information requests. The participation of the High Court in this process is desirable because of the court’s ability to enrich the promotion and protection of fundamental rights including the right to access information through its pronouncements, rulings, and judgments.
14. The issue of miscellaneous fees that may be charged when seeking information is another clawback contained in the Bill that will ultimately inhibit the right to access information. While fees associated with making copies of requested documents may be sensible, the charging of search fees, coupled with inspection fees is not justifiable and is open to abuse in a way that actually prevents people from seeking information.
This was the less contentious Bill in the consultative process and one hoped that it was going to reflect the views of all the stakeholders, yet we fell back beyond the year 2002 because it’s worse than Aippa in its current state.
The Bill in its current state reminds of a quote by Edson Zvobgo the then parliamentary legal committee chairperson commenting on the AIPPA Bill in 2002 that “… this BIll, in its original form, was the most calculated and determined assault on our liberties guaranteed by the constitution… what worse, the Bill was badly drafted in that several provisions were obscure, vague, overboard in scope, ill-conceived and dangerous…”
Almost two decades on… we get less! “This Bill is badly drafted with provisions that are worse off obscure, vague, overboard in scope, ill-conceived and dangerous” may the soul of Zvobgo rest in peace — since then, nothing has changed!
Hence my argument that in so far as the media law reform process is concerned, the more things change the more they remain the same.
Tabani Moyo is the Director of Misa Zimbabwe and chairperson of the Media Alliance of Zimbabwe. He submitted this presentation at a Press Club convened by the VMCZ.