On July 20, the Constitutional Court of Zimbabwe passed another landmark judgement in which the apex court ruled that it was legal for the Zimbabwe Broadcasting Corporation (ZBC) to demand licence fees from every person in possession of a gadget capable of receiving television or radio signals.
GUEST OPINION BY NIGEL NYAMUTUMBU
The court made this ruling following an application by Musangano Lodge and Bernard Wekare challenging the constitutionality of paying ZBC licences.
In an almost similar case to Harare West legislator and opposition leader Jessie Majome, Wekare approached the Constitutional Court after he had been summoned to court on criminal charges for failure to pay the licence fees.
Just as in the Majome case, Wekare argued that compelling citizens to pay ZBC licence fees was a violation of the country’s Constitution on the basis that not every person enjoyed the services offered by the broadcaster.
“Being compelled to pay licence fees to the ZBC for its services, which I do not utilise and have no further desire to utilise, constitutes a form of legislative compulsion to contract with a party which I have no desire to enter into contract with,” argues Wekare, who went further to submit that paying of licence fees interfered with his right to enter into contracts freely.
On the other hand, Majome cites Section 56 of the Constitution, which protects citizens from discrimination, arguing that the national broadcaster deliberately discriminated on the grounds of her political affiliation.
Both arguments are legally plausible and while Wekare’s case was concluded with that July 20 ruling, Majome’s application was yet to be ruled over since November 2014.
In delivering his ruling in Wekare’s case, Deputy Chief Justice Luke Malaba said that it was within the confines of the law for ZBC to demand licence fees from all holders of radio and television sets.
“The obligation to pay the fee and obtain a licence for possession of a receiver is imposed by the law. The imposition of the obligation in respect of possession of a receiver, the fixing and collection of the licence fees are all designed to enable the ZBC to compulsorily acquire property in the form of money from a person who possesses a receiver,” said the ConCourt judge.
He added that ZBC and its appointed agencies would be discharging a legal obligation each time they demand citizens to produce listeners’ licences, be it at their places of residence or at roadblocks in the case of motorists.
I am almost certain that if the national broadcaster had the capacity, ZBC would demand listeners’ licences from most mobile phones, computers and iPad owners at street corners and all public places.
Without doubt, the Broadcasting Services Act (BSA) and the ZBC Commercialisation Act provide legal grounds for every person who possesses a gadget to pay licence fees. As such, until the legislation is amended or the provisions thereof are deemed unconstitutional, ZBC licence fees are legal.
Hypothetically, it makes logical sense to mandate every citizen to pay licence fees in order to sustain a public broadcaster on the basis that every person can rightly claim ownership of the radio and television stations and in turn demand accountability.
While private broadcasters can afford the luxury of targeting certain groups in line with their editorial policies, ideological persuasion or the motivation to maximise profits as long as it is within ethical parameters, public broadcasters should ideally cater for every person, whether male or female, young or old, rich or poor, black or white, able-bodied or living with a disability, educated or not educated and so on.
It is the responsibility of public broadcasters to reflect on society’s diversity, particularly affording minority groups airplay and ensuring that every person has access to the media.
I doubt if Wekare, Majome and every person with serious concerns paying the licence fees would raise any issue if the ZBC would consistently offer diverse political parties space for them to broadcast their ideologies and policies, or if the national broadcaster would be impartial in their coverage as well as holding the government to account.
That as it may be, it is very much still within the confines of the law that every citizen in possession of a gadget capable of receiving radio and television signals pays licence fees to the ZBC.
While the legal basis for the ZBC to demand taxes from citizens is guaranteed, the national broadcaster continues to be stalked with serious questions of legitimacy, never mind the controversial content.
For starters, can ZBC legitimately claim licence fees from all gadget owners while the country’s broadcasting authority is failing to complete the digitisation exercise, which according to policy pronouncements, will result in the increase of the national broadcaster’s television stations, simply because there is no money?
Section II of the BSA, which gives legal effect to the Broadcasting Authority of Zimbabwe (BAZ) provides that one of the functions for the regulatory authority is the advancement of the appropriate technology relating to broadcasting systems and services, a mandate it is failing to execute due to lack of funding.
For avoidance of doubt, I am not necessarily advocating for the licence fees to be remitted to the Ministry of Media, Information and Broadcasting Services who manage the budget vote for BAZ, but merely trying to understand how ZBC is the sole beneficiary of citizens’ hard-earned cash, yet the public broadcaster has no obligation to expand broadcasting services in the country.
It is essential to note that the law stipulates that every person possessing a gadget capable of receiving radio and television signals and this includes access to organic radio stations like those owned by Zimpapers and AB Communications, but do not receive a cent from the broadcasting authority simply because the regulatory body cannot afford to support the broadcasting sector.
What additional value can the ZBC legitimately claim taxes from citizens possessing gadgets, considering that they would have already paid value added tax upon purchasing these gadgets?
To further augment the point of accruing taxes, the majority of citizens pay monthly Dstv subscriptions, whose services include ZTV as well as ZBC radio and as part of their packages include taxes, jeopardising citizens who would have to pay taxes from at least three fronts.
My final point relates to accountability of the licence fees demanded from members of the public after every three months, especially in the wake of disturbing reports of misappropriation of funds at ZBC.
Without belabouring what is already in the public domain, it is outrageous for ZBC to legitimately claim licence fees from citizens when only last year, Parliament was told that the national broadcaster’s financials are in a total mess and a major restructuring exercise is required.
To the best of my knowledge, the restructuring exercise is still ongoing and some managers alleged to have prejudiced ZBC are still senior employees, to the detriment of public confidence in investing in the national broadcaster.
It is imperative for ZBC to be transformed to a genuine public broadcaster that serves the interest of all citizens. While it is indeed legal for the national broadcaster to demand licence fees from members of the public, ZBC does not necessarily have legitimate claim to the same.
l Nigel Nyamutumbu is a media practitioner working as the programmes manager of the Media Alliance of Zimbabwe. He can be contacted on email, email@example.com or on +263 772 501 557