The legislative wheel has been turning since the approval by Cabinet in February 2019 of the repeal of the Access to Information and Protection of Privacy Act (AIPPA). As a result, the Freedom of Information Act was enacted in July 2020, the Cybersecurity and Data Protection Bill was gazetted in May 2020 and more recently on the 2nd of April 2021, the Zimbabwe Media Commission Act (hereinafter called the ZMC Act) was enacted.
These laws are crucial in addressing the thematic issues that AIPPA catered for which include access to information, media regulation and data protection and or protection of personal information.
The Zimbabwe Media Commission, being the regulator of the media industry in Zimbabwe is a constitutional body whose functions include the duty to uphold, promote and develop freedom of the media, to promote and enforce good practices and ethics in the media and to promote fair competition and diversity in the media.
This Act, according to its preamble, seeks to make further provision with regard to the functions of the Zimbabwe Media Commission, to provide for the manner in which the Commission exercises its functions, to provide for the investigation and hearing procedure by the Commission of complaints received and to provide for the secretariat of the Commission among other.
Analysis of the Zimbabwe Media Commission Act
It is commendable that the ZMC Act in Section 2 provides a wide definition of media which includes the dissemination of information through the internet and any other electronic means. This is progressive as it acknowledges the transformation of the media as an industry and the development of what is now termed ‘media convergence’. Likewise, the definition of media practitioner was also not restricted to journalists but includes a broader group of people who work together towards the seeking, receiving and sharing of information.
No provision for Commissioner and Chairperson term limits
Before discussing the substantive details on the powers and functions of the Commission, it should be noted that the law does not make provision for the term limits of the Chairperson and the other commissioners. Section 3 of the Act, which provision is couched notes that members of the Commission except for the Chairperson shall be part-time employees of the Commission. No provision is however made with regards to the length of the term of office for the Commissioners or how many terms a commissioner can serve for. Clarity and transparency on such aspects were crucial to the functioning of the Commission.
Possibility of abuse of Commission
With regards to the investigation of complaints, Section 8 of the Act allows the Commission to mero motu institute an investigation into violations of rights. From the face of it, this seems like a good provision as each and every media violation should be addressed. However, there is actually a danger that the possibilities of abuse of the Commission will be increased.
Law needs to make provision for oral complaints
Section 9 of the Act then makes provision for the submission of complaints. The key aspect which is commendable under this provision is that the Commission cannot refuse to investigate or inquire into a complaint on a technical or procedural aspect like that the complaint was not filed in the prescribed manner.
The law should have however been more inclusive by making provision for the submission of oral complaints and also placing a duty on the Commission to ensure that officers will be available for purposes of receiving complaints, transcribing and also translating them where a need arises.
It however is equally commendable that the law allows any aggrieved or concerned person to submit a complaint to the Commission and this can be a legal representative, a family member or any other that the Commission can consider suitable.
Closed hearings violate the right to information access
With regards to the conducting of the actual investigations, the Act in Section 10 grants the Commission, the discretion to conduct investigations in the form of public or closed hearings, with close hearings being done on grounds of public interest. This provision violates the right of access to information in Section 62 of the Constitution and also media freedom, particularly the right to seek and receive information as stipulated in Section 61 of the Constitution. Such wide discretion poses a threat to the exercise of rights.
Instead, the law should have specified the circumstances which amount to the public interest concerns mentioned which can include the interests of public morality, depending on the nature of the complaint; the interests of the welfare of a child, a child being a person below the age of 18 years as defined in the Constitution or possibly in instances where publicity would prejudice the interests of justice.
Powers of Minister with regards to proceedings could be used to violate the principles of transparency and accountability
Further loopholes are also noted in Section 10(7), which then provides the Minister with the power, at any stage of a hearing or inquiry to order proceedings to be held in camera or as closed proceedings. The Act highlights that this can be done on the grounds that publicity would prejudice the defence, external relations, internal security or economic interests of the state. Of note is the fact that such basis like national security and defence have been relied on systematically to stifle access to information. By nature defence and internal security are mysterious and unqualified aspects to such an extent that anything and everything can be an issue of defence or internal security and once something is declared a national security issue it is very rare for any information to be provided in that regard. This provision is therefore problematic but even more so because it can be abused in violation of the principles of transparency and accountability.
Although the complainant is allowed to file an appeal against the enforcement of a certificate from the Minister ordering proceedings to be held in camera it is worth noting that it is only the complainant who can challenge that. However, where an issue is an issue of public interest and an access to information issue it affects everyone including the general citizenry.
A conducive environment during inquiries is necessary!
The Act deferred to the Commissions of Inquiry Act, Sections 9-18 on further information pertaining to the powers, rights and privileges of the Commissioners. This includes the provision that caters for police presence in inquiries. Police presence is not advisable as it will provide a semblance of a criminal process and more so, it should be noted that most media violations or violations relating to Section 61 also involve the police or law enforcement officers generally. A conducive environment should be created in such inquiries.
Orders of the High Court have the capacity to be enforced
Section 13 of the Act provides for the enforcement of the orders and makes provisions for the registration of the orders in the High Court giving the orders the capacity to be enforced as it was an order of the High Court, this is progressive. It is equally progressive that Section 16 of the Act also then provides for the right of appeal to any aggrieved party from the inquiry.
Act makes provision for the establishment of the Media Fund
Another strategic and positive highlight of the Act is that it makes provision for the establishment of the Media Fund in Part IV of the Bill. This is a timely and relevant intervention especially in light of the COVID 19 pandemic impact on media sustainability and viability. Also, as technology advancements continue, it is equally that a fund is available to assist the media through training, capacitation and reviewing of business models.
The fund, as provided in Section 22 will be used to promote and contribute towards research and development in the field of media services, to promote public awareness on the right of access to information and protection of privacy and also towards capacity building of the media services in order to maintain high standards of quality in the provision of media services among others.
Of concern, however, with regards to the fund is the provision in Section 24 which highlights that if a mass media owner fails to pay the whole or any part of a levy within seven days after the date when it is due, the owner shall be liable to pay to the fund an amount equivalent to double levy. This provision is exploitative and might cripple media services as they will be pushed into debt by such conditions. The law should have been guided by the Prescribed Rate of Interest Act in addressing issues relating to failure to pay levies instead of providing for a vague amount as a penalty or a vague interest rate.
MISA Zimbabwe welcomes the enactment of the Zimbabwe Media Commission Bill as it provides the necessary framework for the total repeal of AIPPA and commends the aforementioned progressive aspects of the Bill which include the establishment of the Media Fund. MISA Zimbabwe however calls on the Commission to ensure that the initiatives facilitated through the fund shall benefit both private and public media institutions and practitioners alike. It would have been more appropriate for that aspect to be included in the Act, particularly in light of the polarised nature of the media industry in Zimbabwe.
MISA Zimbabwe also notes the inclusion of provisions that were challenged at the public hearings like the powers of the Minister, the provision for police presence in the inquiries and also the power given to the Commission to institute investigations even where a complaint has not been filed.
Further, aspects relating to media regulation like the enforcement of a code of conduct, formalizing the relationship of the Zimbabwe Media Commission and other self-regulatory mechanisms of the media and the establishment of a co-regulatory framework were also not included.
However, going forward, MISA Zimbabwe calls on the Commission to promote uphold and develop the freedom of the media in the exercise of its functions, powers and privileges.