Analysis of ConCourt Ruling on ZBC licences
05 Aug 2016
On 20 July 2016 the Zimbabwean Constitutional Court (ConCourt) clarified that it was mandatory for Zimbabweans in possession of a gadget capable of receiving broadcast services to pay Zimbabwe Broadcasting Corporation (ZBC) license fees.
The ruling was made in a matter dating back to 2012 involving two applicants, Bernard Wekare and Musangano Lodge. Both applicants were facing criminal chargesunder the Broadcasting Services Act (12:06) after they failed to pay licence fees.
The applicants challenged the constitutionality of the provisions of the Broadcasting Services Act on funding for the provision of public broadcasting services.
While the ruling triggered mixed reactions with obvious celebrations from ZBC and its governors and disgruntlement by those that feel they are being short-changed by the broadcaster, what escaped the attention of many observers is the court’s strong affirmation of ZBC’s public service mandate as a public broadcaster.
In its ruling the court noted, among other pertinent observations:
There is no doubt that the ZBC is a “public broadcaster” incorporated to carry out the functions of providing public broadcasting services. The primary purpose for the creation of a public broadcaster is to ensure that there is a balanced and consistent presentation to the public of a variety of ideas and information on diverse matters of public concern.
The communication is made through programmes broadcast on television and radio in accordance with the public’s collective right of access to such ideas and information.
A “public broadcaster” is indistinguishable from the other two types of broadcasters, namely commercial broadcaster and community broadcaster. The ZBC is not a State broadcaster. Incorporation of the ZBC in terms of the Companies Act gives it the mark of institutional independence as it is a legal persona distinct from its shareholder.
While the court’s judgment appeared as having been based on the normative role of a public service broadcaster in characterising ZBC, what is clear is that the broadcaster has over the years abandoned its public service mandate.
Several reports, including those by successive parliamentary committees; ministry of information consultative processes such as IMPI; civil society and elections observer missions; have repeatedly pointed out ZBC’s deficiencies as a public broadcaster resulting from its political capture and abuse by the ruling party and government.
It is a matter of public record that while ZBC is legally mandated to collect license fees from all Zimbabweans with broadcast service receivers, its governance structures and content reflect and represent the interest of those in power. Evidence of this abounds.
When juxtaposed against the ConCourt’s observation, the broadcaster requires massive transformation that should be anchored on a revised broadcasting law in order to insulate it from continued political abuse and reposition it as a true public broadcaster.
Besides, this obligation is also buttressed by Section 61 (4) which stresses that all state owned media of communication must be free to determine independently the editorial content of their broadcasts or other communications.
Fundamentally, it stresses the need for state-controlled media to be impartial and afford fair opportunity for presentation of divergent views and dissenting opinions.
Noting the constitutional court’s recommendations to ZBC on improving its content, accountability to the public and safeguarding its independence; and guided by its Model Public Broadcasting Framework and the African Charter on Broadcasting, MISA-Zimbabwe calls for the following in transforming ZBC:
ZBC must in practice be an independent body corporate, established to serve the overall public interest without interference from any quarter. In its bid to provide broadcasting services, it should ensure full respect for freedom of expression, promote the free flow of information and ideas, assist people to make informed decisions and facilitate and strengthen democracy.
As part of its mandate, ZBC should among other key issues:
- Provide universal access to its services with its signal seeking to reach all corners of the country and ensuring and making services available in all the official languages of the country.
- Provide access to a wide range of information and ideas from the various sectors of society and reflect, as comprehensively as possible, the range of opinions on matters of public interest and of social, political, philosophical, religious, scientific and artistic trends;
- Report on news and current affairs in a way which is not influenced by political, commercial or other special interests.
- Contribute to economic, social and cultural development in the country by providing a credible forum for democratic debate on how to meet common challenges.
- Provide credible, quality and varied programming for all interests, those of the general public as well as minority audiences, children, women, the youth and the disabled, irrespective of religious beliefs, political persuasion, culture, race and gender;
- Promote and develop local content.
Some of these responsibilities are clearly outlined in the Broadcasting Services Act’s Part 1 of the Seventh Schedule outlining programming requirements for public broadcasters. ZBC should thus uphold the law.
ZBC should have in place policies to ensure its protection from any form of outside interference or attempts to compromise its independence. This is particularly so in matters concerning the content of its output, its editorial policy, the times and manner in which its output is supplied and in the management of all of its other affairs.
Over the years, the monitoring of the public broadcaster by media freedom lobby groups has indicated its lack of editorial independence, partisan coverage or complete censorship of national events, in violation of the broadcasting law in particular part 1(d) of the Seventh Schedule.
It compels ZBC to “provide news and public affairs programming which meets the highest standards of journalism, and which is fair and unbiased and independent from government, commercial or other interests”.
Therefore, as the Constitutional Court noted, ZBC “is not permitted but required to exercise independent editorial discretion and judgment in the performance of the functions necessary for the fulfillment of its journalistic purpose and statutory obligations.”
This can only happen if the broadcaster is liberated from state control and allowed to operate freely and accountable to the public. The court also noted the adverse effects of state ownership of ZBC in its exercise of duty.
It observed: “Being wholly owned by the state, the ZBC as a public broadcaster could be compromised by the pressures of operating with an inherent conflict of interest in the discharge of the dual responsibility of reporting information and bringing critical judgment to bear on public affairs”.
The governance of ZBC should be vested in a board of governors accountable to the public through parliament. The appointment process must be transparent and open andensure participation by the public in the nomination of candidates.
The members of the board, when viewed collectively, should be persons who:
(a) represent a broad cross-section of the population of the country
(b) are suited to serve on the board by virtue of their qualifications, expertise and experience in the fields of broadcasting policy and technology, broadcasting regulation, media law, business practice and finance, marketing, journalism, entertainment and education, social and labour issues
(c) are committed to fairness, freedom of expression, the right of the public to be informed, and openness and accountability on the part of those holding public office
(d) are committed to the objectives and principles of the public broadcaster
Persons who are office bearers with the state or political parties or have business interests in the media industry should not be eligible for board membership.
To ensure participation of the public in and transparency of the appointment process:
(a) the parliamentary committee responsible for broadcasting policy shall advertise the posts, call upon all relevant groups in society as well as individuals to nominate candidates, shortlist nominees and invite them for interviews in public hearings
(b) an appointment panel of public as well as civil society representatives shall assist in the process of selecting members of the board
(c) parliament should strive to reach consensus in order to appoint a board that is not partisan and avoid abuse of majority of one party
The governance of ZBC falls way far short when measured against most of these parameters as the current board appointment process is politically compromised and lacks full public participation.
Public Complaints mechanism
While the Constitutional Court rightly noted that Section 40 of the broadcasting law establishes a public complaints mechanism members of the public can use to raise their grievances with the broadcaster, it is important that ZBC publicises and adheres to its code of conduct. This will restore the public’s confidence in the broadcaster as a credible, ethical and professional source of information.
On the basis of its code, a public complaints unit, set up by the broadcaster, known and accessible to the public, should consider and resolve any complaints by members of the public against ZBC.
Most importantly, ZBC should be seen to comply with the findings of the complaints unit in order to inspire public confidence in the use of the complaints mechanism to address the broadcaster’s shortcomings.
MISA is a regional non-governmental organisation with members in 11 of the Southern Africa Development Community (SADC) countries. Officially launched in September 1992, MISA focuses primarily on the need to promote free, independent and pluralistic media, as envisaged in the 1991 Windhoek Declaration.