The much-awaited alignment with the Constitution of Zimbabwe of the Broadcasting Services Act (BSA), the principal legislation regulating the broadcasting sector since its enactment in 2001 has reached advanced stages following the tabling of proposed amendments during a law drafting workshop (Writeshop) held in Gweru on 18 and 19 May 2022.
This technical exercise is essential in the ongoing law-making process and sets the stage for the finalisation of the Broadcasting Services Amendment Bill (the ‘Amendment Bill), before consideration by the Cabinet and ultimate gazetting for debate in Parliament through a consultative process that will also consider submissions from members of the public.
Commendably, the Ministry of Justice, Legal and Parliamentary Affairs, which chairs the Inter-Ministerial Taskforce, set up to lead the alignment of laws with the Constitution, the Ministry of Information, Publicity and Broadcasting Services, the administrators of the BSA, and their technical partners the Centre for Applied Legal Research (CALR), have been engaging stakeholders to widen the scope of views and consider submissions from relevant actors.
MISA Zimbabwe, ZACRAS and MAZ – who were represented at the Writeshop – applaud these consultative processes in law development and encourage that this approach is sustained as stakeholder engagement enhances participation and strengthens democracy.
It is our hope the input of the stakeholders, and subsequently of the public, will be factored into the Bill when it is with Parliament enroute to its enactment.
As generally expected in reform processes in which there are divergent views, government policy positions and those of stakeholders were robustly debated resulting in the identification of areas of convergence, and others of variance, that would need further engagements.
It is hoped the resultant broadcasting law and regulatory framework will be in line with the Constitution of Zimbabwe, the African Charter on Broadcasting and the African Commission on Human and Peoples’ Rights (ACHPR) Declaration on Freedom of Expression and Access to Information and African Declaration on Internet Rights and Freedoms, among other instruments that set democratic principles and standards on regulation.
While the position of MISA Zimbabwe, ZACRAS and MAZ are articulated in various policy propositions including, but not limited to the Media Policy Framework and the Broadcasting Regulatory Framework, which were endorsed by stakeholders, this communique zooms in on some of the major areas that dominated the discourses during the Writeshop.
Social media regulation
The technological advancements that have taken place with the emergence of new media have posed opportunities for expanding platforms for news and information dissemination through convergence and multicasting for example.
However, certain challenges have emerged as a result of disinformation, malinformation and misinformation, especially on social media. In what has been described as information disorders, these challenges have posed concerns on the part of regulators on how to manage the space.
While the intentions to regulate citizens using social media to broadcast or “webcast” could be sincere, the implementation thereof poses potential threats of infringing on citizens’ rights to freedom of expression, access to information and right to privacy.
There is a delicate line between social media regulation and infringement of rights. It is moreover impractical to play an oversight role on users of websites and social media from a broadcasting regulation perspective.
Against this background, there was consensus to drop provisions that sought to regulate social media.
Independence of the regulatory authority
MISA Zimbabwe, ZACRAS and MAZ in their submissions on the need to reform the broadcasting regulatory framework argued that the current legislation vests excessive powers in the Minister in the appointment, functions and operations of the Broadcasting Authority of Zimbabwe (BAZ).
It is our considered view that these powers threaten the independence of BAZ, a threat that goes against democratic principles of broadcasting regulation.
The amendment discussed at the Writeshop thus proposes changes in the appointment process of the BAZ Board to include a public nomination and interviewing process by the Minister before seeking approval from the President.
While the participation by members of the public in nominating and observing the interviewing process is a welcome development, MISA Zimbabwe, ZACRAS and MAZ submit that a parliamentary process in establishing the Board could enhance its independence from the Executive.
Currently, the existing law does not spell out a timeframe in which the regulatory authority calls for licences. In the past these calls were only restricted to the periods within which BAZ would issue such calls.
This resulted in some licence categories such as those for community radios and television stations not being issued decades after the enactment of the BSA.
In a welcome development, the amendment under discussion introduces predictability in the applications of licences, which now compels the regulator to call and grant licences at least once a year.
Public service broadcasting
The law provides for the awarding of licences to public broadcasting service providers, who are defined as “a public broadcaster established by law”. Currently, this service is being provided by the Zimbabwe Broadcasting Corporation (ZBC) in terms of the ZBC Commercialisation Act.
The proposed amendments, if passed into law, could broaden the field of public broadcasting service beyond ZBC, and in the same breadth transform ZBC through either amendment of the ZBC Commercialisation Act, or the introduction of a new public service broadcasting law.
Foreign investment and sustainability of community radios
Considering that broadcasting is capital intensive as well as the broader drive to promote foreign direct investment into the country and the media sector in this case, it is notable that the amendment under discussion has provisions allowing for foreigners to own shares not exceeding 40%.
There are also provisions to promote funding from Zimbabweans in the diaspora for community radios as well as through international organisations that will work through the regulatory authority. The broadcasting fund will also support and ensure sustainability of community broadcasting.
Need for sustained engagement
Meanwhile, there were other broader and general amendments around content, particularly the maintenance and extension of 75% local content. There should thus be consideration for a policy content in that regard.
Other issues debated included the issue of limiting the number of licences that one can hold. There is a progressive proposed amendment to restrict the number of licences that an individual and/or organisation can have. This will ensure that limited broadcasting spectrum will not be in the hands of a few.
There are also provisions that seek to align the BSA with the Public Entities Corporate Governance Act, which will be critical in entrenching good corporate governance with the regulatory authority.
The first draft amendment of the BSA was presented at a Writeshop on 22 – 25 March 2019 in Nyanga. However, the government and the media stakeholders at that time reached a deadlock due to the contentious issues which arose pertaining to the then provisions of the draft Bill.
In the meantime, MISA Zimbabwe, ZACRAS and MAZ urge the government to expeditiously finalise the Amendment Bill and to also be open for further engagements, concessions and changes to the Bill based on stakeholder and public input into the law-making process.