Financial Gazette (Harare)
Jurist Gweta
4 January 2002
opinion
Four hostile newspapers are more to be feared than a thousand bayonets - Napoleon (1769-1821)
THE media industry is in for very hard times. This is so for the privately owned media houses. Journalists employed by these media houses face a bleak future. So do some aspiring journalists.
The media will never be the same again if the Access to Information and Protection of Privacy Bill is passed into law, and the prospects of such an event are very real. This article deals with the Bill only as it relates to the media industry.
The government has decided to "regulate" the media. Actually "regulate" is misleading in this context. The proper word might be to "police".
In the Bill, the government has recognised journalism as a profession, putting the calling in the same bracket as those ancient professions: medicine, the law, etc.
But the difference between journalism and these professions is ominous. The Minister of Health does not "regulate" the medical profession, nor does the Minister of Justice regulate the legal profession.
The impending legislation places the media industry firmly in the hands of Information and Publicity Minister Jonathan Moyo!
Provisions which affect journalists and their employers cornfirm what appears on the surface to be an alarmist interpretation of the Bill.
The problem does not end there. Whatever problems the Bill will cause for the journalists and their employers will also affect this nation at large. Political control of the media means political control of what the public sees and hears. The Bill is reminiscent ofthe apartheid-era Press laws such as provisions of the Internal Security Act 1982, Newspaper Imprint Registration Act 1971.
Establishment of media and information commission
Section 39 of the Bill establishes a media and information commission. The commission is empowered by Section 40 to perform certain functions. For the purpose of this article, the following powers of the commission are pertinent:
- To advise the minister on the adoption and establishment of standards and codes relating to the operation of mass media services.
- To receive, evaluate and consider applications for registration as a journalist.
- To accredit journalists.
- To monitor the media and raise user awareness of the media.
- To register mass media services in Zimbabwe.
Appointment and composition of media and information commission
Surprisingly, the Bill does not even say what qualification a person should possess to be eligible for appointment to the commission. It does not provide for the number of commissioners. It does not provide for a class of people from whom commissioners will be chosen.
The board
All one is told is that "the operations of the commission shall be controlled and managed by a board". And in terms of Section 41(2), "the board shall consist of no fewer than five members and not more than nine members appointed by the minister after consultation with the President in accordance with any directions that the President might give him".
While Section 41(3) directs one to the fifth schedule for the qualifications for eligibility for appointment to the commission and the board, that schedule is of no assistance whatsoever. It speaks only in the negative - of disqualifications, that is.
The conclusion here is that it is up to the minister and the President to handpick board members and, further, the commissioners. A board member or a commissioner is not required by the Bill to have any semblance ofexperience in the media industry. These are the kind of people expected to carry out the governance of the industry!
Ownership of mass media services
Section 70 of the Bill is a drastic provision as far as media ownership is concerned. Zimbabwean citizenship is the essential requirement for the ownership of a mass media service.
Foreigners and stateless persons are prohibited from owning or co-owning a mass media service. The section will put to an end any investment by foreigners in the media industry. Any company with some members who are not citizens of Zimbabwe is barred from owning or co-owning a mass media service.
One of the drastic provisions is that a person who is serving a sentence of imprisonment cannot own or co-own a media service. The provision is wide - it does not matter what offence the person is in jail for.
Registration of mass media service
A mass media owner can only operate as such after registering and receiving a certificate of registration. The commission is empowered to grant or reject applications for registration. A certificate of registration issued in terms of Section 71 of the Bill is valid for only two years. The commission has a discretion to renew such a certificate.
Only mass media services founded under an Act of Parliament and those giving out free mass media products are exempt from registration.
Cancellation of a registration certificate
A media house's registration certificate can be cancelled by the commission at any time under Section 77.
A variety of reasons are given for such cancellation. One example is Section 77 (d), that is, if the mass media owner fails to comply with an order or directive of the commission. As this is not enough punishment, Section 77(3) adds that "a mass media service whose certificate of registration is cancelled shall cease to operate forthwith and may not reapply for registration until after the expiration of a period of two years.
It is however worth noting that the Bill does not say what happens if persons subject to a cancellation order apply for registration under a different name before the expiration of the two-year period.
Termination and suspension of activity
The insecurity of media houses is worsened by the commission's power to terminate or suspend that mass media service. For example, in terms of Section 78 (3), the commission may, upon the determination of a complaint against any mass media service, either suspend, terminate or conserve that mass media service.
Offences in terms of Section 79
It is an offence to operate a mass media service without a valid registration certificate. The offence is punishable by a fine not exceeding $1 million or to imprisonment for a period of not more than two years or to both such fine and such imprisonment.
If the minister has reasonable grounds to believe that a mass media service is being operated in contravention of this Act, he is empowered to seize the media's products, for example equipment, and impound them pending the finalisation of criminal prosecution.
This power is drastic. In some cases it can amount to punishment before a finding of guilty by a competent court. Besides, the use of such powers by the minister can put a company out of business for an indefinite period as the pace of prosecutions in this country is very slow.
News agencies
News agencies are also subject to strict regulatory requirements which are similar in substance to mass media services.
Provisions pertaining to journalists
To the question "what is a journalist?", the Bill practically leaves it up to the minister and the commission to define. It is a sad scenario. If the Bill is passed as it is many honest and hardworking citizens of this country who have toiled for the industry will lose their jobs. Not because their employers want it but because the government says so.
Accreditation
of journalists
Section 86 of the Bill is a minefield planted against what we have known to be journalists. No journalist will he allowed to work in Zimbabwe without being accredited by the commission. And it is the minister who shall prescribe the form and the manner in which journalists should be accredited.
The commission is not obliged to accredit a journalist. It may refuse to do so. It may accredit an applicant if it is satisfied that he has the prescribed qualifications. But these qualifications are not defined.
No foreign citizen can be a journalist in Zimbabwe. The era of the Joseph Winters, etc, will be over.
A journalist's accreditation certificate is not permanent. It is valid for only one year. The commission may or may not decide to renew it.
Appeals
The Bill is completely mute as to whom a mass media service, a news agency or a journalist can turn in the event of, for example, the commission's refusal to grant an application for registration. The commission can terminate a media service's certificate overnight and leave the affected party at a loss as to what to do.
It is submitted here that the only option open in such a scenario is an application to the High Court for review. But that is no relief. Courts are loath to set aside decisions of administrative bodies unless, for example, it is proved that such decisions were activated by malice or gross irregularities in procedure.
Abuses
One further provision necessitates comment. Section 69 creates offences known as "abuse of freedom of expression". One of them reads: "denigrating, bringing into hatred or contempt or ridicule or exciting disaffection against the President, the law enforcement agents or the administration of justice in Zimbabwe".
Such an offence is punishable by a fine not exceeding $100 000 or to imprisonment for a period not exceeding two years.
Clearly, this offence is meant to stifle any criticism of the President. So much for the Bill purporting to be a protector of the freedom of expression! The offence can even cause disaster for a newspaper just because it has published a cartoon image of the President. This is the end of journalism as we know it.
Jurist Gweta is a concerned Zimbabwean.
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