MAZ report-back workshop with CSOs on Media Law Reforms- October 2009

Zimbabwe is clearly still living in a highly charged, politically polarized environment and Zimbabweans should be careful not to invest too much hope that our political leaders will be able to free Zimbabwe from this exhausting deadlock where the truth can still only be whispered carefully and in confidence, while the stalemated status quo is trumpeted as exemplary progress.

If people doubt this state of affairs, they should consider the experience of the students who “made the mistake” of discussing the contribution of one of the principals to the GPA in Zimbabwe’s demise while on their way home in public transport. A fellow passenger who happened to be a security agent hijacked their ET and they were marched off into detention for the weekend during which time they were allegedly violently assaulted.

What does this do to the idea of freedom of expression?

Or indeed, the flood of offensive criticism that appeared in the state-controlled media following Arthur Mutambara’s perfectly accurate description that the June 2008 presidential election was “a violent farce” during the government’s retreat in Nyanga. Had he not been a principal to the GPA who knows what his fate might have been?

After all, it was precisely because that election was indeed “a violent farce” that gave rise to the GPA, the GNU – and all the promises of reform.

It seems to me that there is a fundamental problem relating to facts and perceptions.

Quite evidently, we are not allowed to call a spade “a spade” when we see one, and as a result we are in danger of deceiving ourselves about reforms when we are actually only witnessing pseudo-reforms towards democracy.

Ironically, it was our colleague, George Charamba, who also referred to this state of affairs when he addressed the editors at their UNESCO roundtable. “I am in the kitchen,” he said, referring to the activities of the inclusive government. “There is lots of smoke, but hardly much cooking going on!”

So it would seem that even he recognizes problems in Zimbabwe’s efforts to achieve real reforms, but so long as they are only expressed in riddles and metaphorical fairy tales, this is OK.

A dispassionate and factual audit of the progress towards reforms promised under the GPA is evidently something to be avoided at all costs – and anybody promoting such an idea can expect to be pilloried by the country’s dominant state-controlled media.

But let me try to give you a factual assessment of those reforms – at least in the media – promised under the GPA…and enshrined in our makeshift Constitution.

So what does the GPA actually say?

Well sadly, most of its references to media reforms are vague and negative, focusing more on observations about the state of broadcasting in Zimbabwe generally and the so-called “pirate” radio stations broadcasting into the country than any actual solid legal media reforms.

Here are the most positive extracts of what it says under Article XIX of the GPA (highlighted from the entire Article):

In it’s preamble, the Article talks about being…(Desirous…)

Recognizing the importance of the right to freedom of expression and the role of the media in a multi-party democracy.

Noting that while the provisions of the Broadcasting Services Act permit the issuance of licences, no licences other than to the public broadcaster have been issued.  

Aware of the emergence of foreign-based radio stations broadcasting into Zimbabwe, some of which are funded by foreign governments.  

Concerned that the failure to issue licences under the Broadcasting Services Act to alternative broadcasters might have given rise to external radio stations broadcasting into Zimbabwe.

Further concerned that foreign government funded external radio stations broadcasting into Zimbabwe are not in Zimbabwe’s national interest.  

(b) All Zimbabwean nationals including those currently working for or running external radio stations be encouraged to make applications for broadcasting licences, in Zimbabwe, in terms of the law;

(c) That in recognition of the open media environment anticipated by this Agreement, the Parties hereby:

(i) Call upon the governments that are hosting and/or funding external radio stations broadcasting into Zimbabwe to cease such hosting and funding; and

(ii) Encourage the Zimbabweans running or working for external radio stations broadcasting into Zimbabwe to return to Zimbabwe; and

 

(d) That steps be taken to ensure that the public media provides balanced and fair coverage to all political parties for their legitimate political activities.

 

(e) That the public and private media shall refrain from using abusive language that may incite hostility, political intolerance and ethnic hatred or that unfairly undermines political parties and other organisations. To this end, the inclusive government shall ensure that appropriate measures are taken to achieve this objective. 

 

There’s only a DESIRE to ensure “the opening up of the airwaves” and “the operation of as many media houses as possible”.

This is no legal commitment at all.

The only thing the parties concretely agreed, was to ensure the immediate “processing” of all applications for registration in terms of the BSA and AIPPA. So rather than seeking the reform of these repressive media laws, this section actually entrenches them!

Admittedly, this is according to the amended versions of these laws - that have also been inserted into the Constitution in terms of the controversial Constitutional Amendment Act No.18 of 2007, which sparked a national outcry of criticism of the MDC by civil society for accepting what amounted to cosmetic amendments without consulting us.

And when the new Broadcasting Authority (BAZ) and the ZMC are finally appointed and get to work, the exact meaning of the word “processing” is sure to become a hot topic. The commitment will be to processing applicants – many of whom, will, no doubt, be rejected! There is no commitment in the agreement to approving all applications…

The other clauses of the agreement in Article XIX of the GPA merely refer vaguely to the parties agreeing that “steps be taken to ensure that the public media provide balanced and fair coverage of all political parties”; that “the public and private media shall refrain from using abusive language…” and that the government “shall ensure that appropriate measures are taken to achieve this objective.”

So none of this guarantees anything like the reforms that civil society has been calling for and that MAZ and its partners have been campaigning to achieve. Most notably, of course, the GPA doesn’t even make any reference to any of the regional protocols on freedom of expression and the media, particularly the African Commission’s ‘Declaration of Principles on Freedom of Expression’ adopted by the AU in 2002, which serve to reinforce Article IX of the African Charter on freedom of expression.

There’s not even any reference to any media law reforms per se.

So…actually there’s little we can expect from the GPA, or even from the Zimbabwe Media Commission established in Constitutional Amendment No.19 whose primary function is to ”uphold and develop freedom of the press”. This is little different from what Tafataona Mahoso’s duties were as chairman of notorious MIC. And we all know what he did!

But what we DO have now, thanks to progressive elements within the Ministry of Media, Information and Publicity, are a set of recommendations from the ministry’s own Media Stakeholders’ Conference held in Kariba in May 2009 that at least recognized “government’s overbearing control of the public media” and the need to repeal AIPPA. It also recognizes the need to reform the Broadcasting Services Act and to establish greater independence of ZBC under the control of Parliament and not the executive…

There are many other recommendations within this document that should all inform – and be officially adopted into government policy. Not all of them are very encouraging. For example, while the recommendations call for the repeal of AIPPA, they also recommend it be replaced by two Acts; an Access to Information Act and a Media Practitioners’ Act, which, if we’re not careful, will simply reintroduce the repressive regulations that still exist under the amended AIPPA.

The difficulty here is that because AIPPA and indeed, the BSA, are now both embedded in our higgledy-piggledy Constitution, it will require further constitutional changes to repeal, replace, or even to amend them.

Well, that’s about as likely to happen as snow in Zimbabwe in October! So in the meantime we’re going to have to work with what exists already.

And what exactly is that…? For example, we have two ZMCs in our constitution; one established in terms of the amended AIPPA, and an exact copy that reappears in Amendment No.19. Since this is a constitutionally established Commission as opposed to a statutory body (whose enabling law has also been drafted into the Constitution), it is likely that this is the one that will prevail.

But the ZMC created under the Constitution is almost certain to inherit the repressive mandate granted by AIPPA given that Constitutional Amendment No.19 Section 100P subsection (1) (e) obliges it to “exercise any other functions that may be conferred or imposed on the Commission by or under an Act of Parliament”.

Thus, even if most of the members of the ZMC are progressive “media reformists”, the Commission may be forced to apply the excessively bureaucratic registration and regulatory provisions that still exist under AIPPA.

AIPPA’s amendments have also left intact the wide and unreasonably vague offences of “abuse of freedom of expression” by newspapers and abuse of so-called “journalistic privileges” by journalists.

There are also a number of laws contained in other pieces of legislation that unduly restrict freedom of the press, including those contained in the Criminal Law (Codification and Reform) Act[1], such as the offence of making statements undermining the authority of or insulting the President[2], the offence of publishing false statements prejudicial to the State[3], the offence of causing disaffection among the police force[4] and the offence of criminal defamation.[5]

If the provisions of AIPPA are applied to the functions of the ZMC, the Commission will be obliged to enforce regulations that call on it to reject, suspend or cancel the registration of newspapers and their journalists on a wide variety of grounds.

Similarly random and excessively bureaucratic regulations governing the establishment of independent broadcasters remain in the provisions of the amended BSA, such as local content levels and ownership restrictions, let alone the arbitrary assessments of “financial capacity” that has been used to reject previous applications from prospective independent broadcasters.

Despite statements by the Prime Minister suggesting that registration was not necessary while a replacement to the infamous Media & Information Commission had still not been established, Cde George openly challenged this view when he addressed Zimbabwe’s newspaper editors recently. He warned publishers planning to launch new daily papers (that would bring an end to the Zimpapers’ monopoly of the daily newspaper market) that they would be breaking the law if they started publishing without a licence. “Get it from me – you will be breaking the law,” he said, and you can expect a visit from the Lizard! (That was a reference to Charamba’s own reference to Chinua Achebe’s observation that those who bring dry logs into the house should not be surprised when they are visited by the lizard – in other words, the police.)

Meanwhile, Zimpapers launches a new publication, H-Metro, with impunity. At its launch media minister Webster Shamu is reported saying it’s publications were exempt, while at the same time declaring that Zimpapers “is not a state institution”.

As I said at the beginning of this presentation, we are afraid of questioning the sense of this “double-speak” nonsense emanating from government officials for fear of the retribution that is likely to follow if we actually call a spade a spade. But if there is to be any hope of real reform, we must challenge the authority of these unilateral statements, threats and actions that clearly undermine the letter and spirit of the GPA.

Evidence of this disrespect for the agreement is emerging from all corners. For example, the blatantly irregular manipulation of the selection process for nominations to the boards of the ZMC and the Broadcasting Authority of Zimbabwe – with the help of the state media – is yet another clear indication of unacceptable compromises diluting efforts to achieve real reforms.

MMPZ itself, continues to report, week-in and week-out, the heavily propagandist nature of the national public broadcaster and of Zimpapers’ titles in flagrant violation of the GPA.

Add this together with the news that ZBC is planning to launch so-called community radio stations in Harare and Bulawayo and that the Met Office – of all people – has applied for as many as 50 community radio licences around the country, and it becomes obvious that media reforms are turning into a Frankenstein monster that will suffocate all genuine efforts to encourage the emergence of a free and democratic media ahead of the constitutional referendum and national elections that are due to follow.

It can only be hoped that – by some miracle – those constitutional reforms will contain the real changes that we seek – and that they will be sufficient to restore Zimbabweans’ rights to free expression.

The End/

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