“EVERY person is entitled to freedom of the media, which includes protection of the confidentiality of journalists’ sources of information,” reads Section 61 (2) of the Constitution of Zimbabwe.
By Chris Mhike
The entire Section 61 of the Constitution relates to Freedom of Expression and Freedom of the Media. Section 62 (3) of the nation’s supreme law goes further in entrenching press freedom, stating that: “Broadcasting and other electronic media of communication have freedom of establishment . . .”
These very important constitutional provisions make for very encouraging and re-assuring reading for journalists, media houses, and indeed any other person who appreciates the importance of the media and of free speech. Constitutional protection for the media is new to Zimbabwe. The specific inclusion of a “freedom of the media” clause in a Bill of Rights was introduced into the domestic legislative regime with the promulgation of the current Constitution on 22 May 2013. This historic development was an improvement to the old legal position whereby the Lancaster House/ 1980 Independence Constitution provided only for Freedom of Expression without the specific mention of Press Freedom.
Today is Press Freedom day, as is the case annually on May 3. Due for specific celebration in Zimbabwe, among a few commendable developments, is the recent constitutional improvement in the media law framework through the inclusion of media freedom under Section 61 of the Constitution. In celebrating that specific constitutional development, perhaps the Zanu PF-sponsored “#1980sofarsogood” pay-off line might be tolerable.
But that is definitely not to say Zimbabwe’s media sector has now ascended to cloud nine where journalists do not have to worry anymore about repression, harassment and tyranny. Sadly, while constitutional protection is now promised through louder and more emphatic expressions under Section 61 and other pertinent sections of the Constitution, Zimbabwe’s media is still significantly stifled by a plethora of legalistic and cultural hurdles.
Several worrisome realities still threaten the freedom that is promised to the media by the supreme law of the land. Many Acts of Parliament remain firmly rooted and nourished in the statute book. The Access to Information and Protection of Privacy Act (AIPPA), the Interception of Communications Act, the Criminal Law (Codification and Reform) Act, the Broadcasting Services Act (BSA), the Public Order and Security Act (Posa), and the Official Secrets Act are some (and not all,) of the laws that still inhibit the practice of journalism and that still limit the enjoyment of freedom of expression and freedom of the media.
That the Constitution is superior to all these and other media-related statutes does not really matter. Journalists and citizens could challenge the constitutionality of these statutes at court, but only after suffering the effects of arrest, harassment, professional restriction, costly lawsuits, and anxiety-inducing threats. In recent years, the tyranny of the mighty against the media has ceased to be the exclusive domain of the State. Private citizens and organisations have joined in; taking actions that undoubtedly undermine the letter and spirit of s61.
Relying on laws like Criminal Defamation, for instance, powerful citizens — especially politicians have targeted journalists and free-speaking citizens for harassment and impoverishment through criminal procedure. Using laws like the BSA, the State has perpetuated broadcasting monopoly in favour of the state-controlled Zimbabwe Broadcasting Corporation (ZBC) and friends of the State; contrary to the provisions of s61 (3) of the Constitution, which speaks to diversity through freedom of establishment for prospective broadcasters.
Earlier on this year and in unprecedented fashion, Econet Wireless and Steward Bank raided the newsroom of The Source news agency in a bid to establish the source of news articles that related to the two companies. They claimed the raid was also designed to uphold the companies’ constitutional right to privacy. The companies submitted that the targeted journalists and media house had published the subject stories using stolen documents, and without the authority of Econet Wireless and of Steward Bank.
That raid is being legally challenged by the affected media house. Since the matter is sub judice (i.e awaiting judicial determination) issues pertinent to the incident are therefore left at the plain presentation of fact, without commentary. It suffices to note that after the raid, a sizeable section of the media staged demonstrations and presented a petition to Econet Wireless and Steward Bank, confirming the media’s disapproval of the court-sanctioned raid. It remains to be seen how the courts will determine the probity of Econet Wireless and Steward Bank’s attitude towards Press Freedom.
In another scenario, while Minister of Media, Information and Broadcasting Services Prof Jonathan Moyo has generally been supportive to media freedom in recent months on a variety of issues like the right to march, the undesirability of criminal defamation, and the need for legislative and policy reform; his threats against journalists in February this year in the aftermath of President Robert Mugabe’s tumble at Harare International Airport sent chills down the spine of many a journalist.
The minister declared then, that government had become wiser and would in future confiscate journalists’ cameras for at least 30 days if a similar incident occurred. He indicated that government could easily bar journalists from the private media from attending state events.
Even certain men of the cloth have refused to be left behind in the seemingly fashionable go-for the-Press wave. Reverend Tititi Moyo, leader of the Christ Apostolic Worldwide Revelation, allegedly assaulted four journalists in the same damned month of February 2015. The wayward prelate accused the hapless scribes of photographing him without permission. Blessed Mhlanga of NewsDay, Jackie Gwemende and Dzikamai Mandizvidza from ZBC, and Munyaradzi Musiyiwa of The Herald had gone to Moyo’s Kwekwe restaurant to interview him about the alleged harassment of his Sherwood Farm neighbours.
Earlier on this year, journalist-turned-activist Itai Dzamara was abducted in broad daylight. While Dzamara had stopped actively writing as a journalist, he continued to freely express views that were largely critical to the government. That free expression is specifically protected under S61 of the Constitution. The young man’s whereabouts or captors remain unknown.
On the financial front, the economy has caused massive havoc to the vast majority of the Zimbabwean population this year, and the media has not been spared. In March 2015, The Zimbabwe Mail shut down, mainly due to financial constraints. At the end of the same month, Southern Eye stopped printing owing to viability challenges that are directly linked to the poor performance of the Zimbabwean economy.
The environment resulting in all of these incidents and factors is obviously inimical to the existence of a thriving Press. The incidents narrated above, and sentiments expressed by State officials and by non-State actors are surprising, coming as they do in a country that professes through the Constitution and through mission statements of corporate leaders, to be respectful of freedom of expression, freedom of the media and access to information.
In the final analysis — while it is admitted that the legislature did very well to constitutionally entrench Freedom of Expression, Freedom of the Media, and Access to Information, and as the 2015 Press Freedom Day is commemorated today — Government, the corporate sector, the church; in fact — everyone, must be reminded of a few facts about Media Freedom.
For as long as the sort of laws listed above continue to be part of Zimbabwe’s list of legislation even when they are ultra-vires the Constitution; as long as journalists continue to be arrested, systematically prosecuted at courts of law for carrying out their journalistic duties, and to be generally harassed, liberty for the Press is in peril. When citizens like Itai Dzamara disappear after exercising their Section 61 rights, and when the economy is too harsh to sustain media houses and their journalists, one cannot meaningfully talk about Press Freedom.
Further, without the alignment of laws with the Constitution for the greater protection of journalists; without respect for media houses and for journalists by the government, by wealthy companies, by powerful politicians and by clergymen who expend their energies on assaulting journalists; and with a monopolised broadcasting industry and a print-media getting choked to death by a failing economy, the great idea of Press Freedom day is demonstrably dampened.
Celebrating the progressiveness of our Constitution on this Press Freedom Day as we do, let those that reign and those with political, financial, religious, moral and other types of muscle be reminded that s61’s “Press Freedom” is meaningless without legal, operational, financial and practical liberty for the Media.
l Chris Mhike is a lawyer practising in Harare. He writes here in his personal capacity.