Media freedom enshrined in constitutional draft

Njabulo Ncube, Assistant Editor

FREEDOM of expression and access to information by the media are enshrined in the draft constitution released last week by the Constitution Parliamentary Select Committee (COPAC) but there are reservations over the inclusion of a statutory regulatory body with powers to discipline the media if it sees fit.

Under the draft constitution — already in the hands of the three principals, President Robert Mugabe, Prime Minister Morgan Tsvangirai and Deputy Prime Minister Arthur Mutambara as well as Speaker of Parliament, Lovemore Moyo and President of the Senate ,Edna Madzongwe — freedom of expression, freedom of the media and access to information are guaranteed provided the proposed new supreme law of the land is accepted after a national referendum and adopted by the august house.
Media stakeholders, under the auspices of the Media Alliance of Zimbabwe, which comprises the Media Institute of Southern Africa (MISA) Zimbabwe, the Zimbabwe Union of Journalists (ZUJ), the Zimbabwe National Editors Forum and the Media Monitoring Project of Zimbabwe extensively lobbied ZANU-PF and the two formations of the Movement for Democratic Change for the inclusion of these clauses in the envisaged new constitution expected to lead to fresh polls.
Under the current Constitution media freedom and access to information are not enshrined. But Sections 4.18 and 4:19 of the draft specifically refer to freedom of expression and the media and access to information respectively.
Section 4.18 states:
(1) Every person has the right to freedom of expression, which includes —
(a) freedom to seek, receive and communicate ideas and other information;
(b) freedom of artistic expression and scientific research and creativity;  and
(c) academic freedom.
(2)    Every person is entitled to freedom of the press and other media of communication, which freedom includes protection of the confidentiality of journalists’ sources of information.
(3) Broadcasting and other electronic media of communication have freedom of establishment, subject only to licensing procedures that—
(a) are necessary to regulate the airwaves and other forms of signal distribution; and
(b) are independent of control by government or by political or commercial interests.
(4) All State-owned media of communication must—
(a) be free to determine independently the editorial content of their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.
(5) Freedom of expression and freedom of the press do not include—
(a) incitement to violence;
(b) advocacy of hatred or hate speech;  or
(c) malicious injury to a person’s reputation. Section 4.19 on access to information states that:
(1) Every citizen or resident of Zimbabwe, including the Zimbabwean press and other media of communication, has the right of access to:
(a)any information held by all the State and institutions and agencies of government at every level, in so far as the information is required for the exercise or protection of a right or in the interests of public accountability;
(b) information held by any other person, in so far as the information is required for the exercise or protection of a right.
(2) Every person has a right to the correction of information, or the deletion of untrue, erroneous or misleading information, which is held by the State or any institution or agency of the government at any level, and which relates to that person.
(3) Legislation must be enacted to give effect to this right, but may restrict access to information in the interests of defence, public security or professional confidentiality, to the extent that the restriction is fair, reasonable, necessary and justifiable in an open, just and democratic society based on human dignity, equality and freedom.
While there are reservations over the retaining of a statutory regulatory body — the Zimbabwe Media Commission (ZMC) — media executives canvassed by The Financial Gazette this week were agreed that the provisions relating to freedom of expression, media freedom and access to information are a vast improvement of Section 20 of the current Constitution, from which some of these rights could only be inferred.
Section 20 of the current Constitution is seen being of an overbroad nature and vague on the stated fundamental media freedoms, providing the authorities the latitude to craft  laws that corroded Zimbabweans’ basic right to free speech.
ZUJ secretary-general, Foster Dongozi, said  while there were clauses favourable to freedom of expression and the media, laws such as the Interception of Communications Act could curtail the enjoyment of these freedoms in the proposed new constitution.
“We have some very noble clauses in the draft but there will be need to remove legislation which might fly in the face of these constitutional provisions. We also have problems with the inclusion in the draft of organisations or commissions designed to regulate the media. We believe the media should regulate itself even if that by-product of self-regulation is under a statute. We are very displeased by the possibility of a commission or organisation whose mandate will be to regulate the media,” said Dongozi.
MISA-Zimbabwe director, Nhlanhla Ngw-enya, said assuming there will be political will to live by the proposed new constitution, all the laws that have plagued the media space would easily become a legal nullity.
“If Section 4.18 and Section 4.19 were the whole constitution, MISA-Zimbabwe would have unreservedly and triumphantly endorsed the document for it would have addressed the very issues the organisation has been struggling against,” said Ngwenya.
“However, these sections will have to be read together with the whole document to see if there is harmonious and wholesale enjoyment of basic freedoms as enshrined in several regional and international instruments on human rights. For instance, while Section 4.18 and Section 4.19 give more freedom to the media, Section 12.18 (2) allows for Parliament to confer powers on the Zimbabwe Media Commission — itself a statutory regulatory board — to ‘take or recommend disciplinary action’ against journalists and media practitioners deemed to have breached ‘any law’ or ‘any code of conduct applicable to them.’ This does not only entrench statutory regulation, which form of regulation the media has been fighting against, but also gives the ZMC powers to ‘discipline’ the media when it sees it fit,” he said.
The MISA-Zimbabwe boss added that ZMC powers could be abused to take away the same freedoms that sections 4.18 and 4.19 give.
Ngwenya added: “In any case, a regulatory board should not be a ‘disciplinarian’ but an enhancer of free media activity. Therefore, to build an impervious shield for the enjoyment of free speech, media freedom and access to information it would be important to have a complimentary democratic regulatory mechanism that is insulated from potential abuse.”
The Voluntary Media Council of Zimbabwe was this week said to be studying the draft but its officials are said to be wary of the inclusion of a state regulatory body, ZMC.
Earnest Mudzengi, the director of the Media Centre in Harare said: “Whatever media freedoms are enshrined in the constitution will not be of much effect as long as we still have pieces of legislation such as Access to Information and Protection of Privacy Act, Public Order and Security Act, Criminal Codification (And Reform) Act, Defence Act and others that inhibit the freedom of expression and the right of access to information.”

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