Institute of Free Speech &Democracy in Zimbabwe: A wretched constitutional shield!

Institute of Free Speech &Democracy in Zimbabwe: A wretched constitutional shield!: "Democracy cannot function well if people are arrested for assembling and expressing themselves.It appears that the Constitutional shield for..."

A wretched constitutional shield!

Democracy cannot function well if people are arrested for assembling and expressing themselves.It appears that the Constitutional shield for the freedom of assembly and freedom of expression is wretched and under constant threat from both politicians and the very same courts that must lift up the shield. Perhaps those in public offices are scared of the embarrassment of public scrutiny of their conduct and yet when one chooses to hold a public office he or she would have accepted to be held to account by that very same public.It therefore, defies the logic and very nature of democracy when the very same public is threatened and arrested for assembling and expressing themselves in public protests.     

Our Message on Africa Day

This year has witnessed the demise of Ben Ali of Tunisia, Hosni Mubarak of Egypt and Babgo of Ivory Coast. There is one thing in common with these former presidents. They all tried to cling to power when the people power was indicating that they should exit and they faced embarassing forced exits. Today as we celebrate Africa Day, Gaddafi of Libya is at war because he is refusing to exit from power.Mubarak is now facing criminal charges for abuse of power and having a role in the killings of Egyptians freely expressing their wishes. This is the sad story of Africa. Africa's greatest problem is that of career politicians who are power hungry and are prepared to see their countries go down the abyss at the alter of their selfish interests.Laurent Babgo was shmefully arrested and is likely to face criminal charges at the Hague. Amnesty International is reported as holding evidence of unlawful killings of Ivorians. Charles Taylor is awaiting his fate at the Hague for atrocious human rights violations.   These politicians are unaccountable to the people yet the legitimacy to rule is given by the people. Power, thus, belongs to the people and not to the individuals.Like the Bouborns Monarchy of France, 'Africans learn nothing and forget nothing'. Africans have matured in the wrong ideologies and motivations. Power is so sweet that we forget where it belongs. The club of African political buddies, the so called 'African Union' is puportedly meeting today to discuss the Lybian question and yet Libya has been under fire and burning uncontrollably over the last two months. What is there to meet for these guys who can't even protect their fellow Africans from their ruthless governors? Do we really need the African Union in its current status? A union that is powerless and indicisive, one that promotes instead of deterring bad governance? What legacy are we going to leave for the generations to come? A legacy of misgovernance and shameful disrespect of the wishes of the people? Shame on Africa! What we need is an Africa Union that is prepared to hold African Leaders to account for their misdeeds. A Union that enforces good political governance and promote transparency and accountability in political goverance. A Union that does not wait for the United States of America and the United Kingdom and their NATO allies to protect fellow Africans from dangerous political leaders.We need a Union that enforces respect for fundamental rights of the people on the continent. Today, Africa is facing a leadership crisis. We want better Governance for Africans for Better lives for Africans!               

Institute of Free Speech &Democracy in Zimbabwe: Freedom of Speech

Institute of Free Speech &Democracy in Zimbabwe: Freedom of Speech: "Oh, may my mother prove to be a dame of Athens, that from her I may inherit freedom of speech. -Euripides, Ion"

Freedom of Speech

Oh, may my mother prove to be a dame of Athens,
that from her I may inherit freedom of speech.
-Euripides, Ion

Teaser!!! Why Pirate Radio Stations in Zimbabwe? This weeks's topic

When you dam water, it will always find some easy way to flow out. Accordingly, when you shut out the radio voices of the people, they will always set up pirate radio stations in order to speak to the people.

Institute of Free Speech &Democracy in Zimbabwe: My word to COPAC!

Institute of Free Speech &Democracy in Zimbabwe: My word to COPAC!: "The new Constitution that we have set out to write as a country must guarantee free speech and make Zimbabwe a free market place of ideas an..."

My word to COPAC!

The new Constitution that we have set out to write as a country must guarantee free speech and make Zimbabwe a free market place of ideas and never again should we the people of Zimbabwe rewind the clock to the dark political ages of the Colonial era in which our fore-fathers, brothers and sisters were systematically denied their dignity and humanity by our Colonial oppressors. The term Dignity originates from ‘the Latin term ‘dignitas’ translated as ‘worth’ and according to Oscar Schachter, ‘…one lexical meaning of dignity is intrinsic worth and as such, respect for the ‘intrinsic worth’ of every person should mean that individuals are not to be perceived or treated merely as instruments or objects of the will of others[1]’.  The concept of dignity is closely linked to the concept of humanity which ‘…states that we should never act in such a way that we treat Humanity, whether in ourselves or in others, as a means only but always as an end in itself. Our ‘Humanity’ is that collection of features that make us distinctively human, and these include capacities to engage in self-directed rational behavior and to adopt and pursue our own ends, and any other capacities necessarily connected with these.[2]’ The reason why the young men and women dating back to the first Chimurenga that was spearheaded by Mbuya Nehanda and Sekuru Kaguvi in 1896, took arms to fight the then colonial power was that our people had lost not only their independence but their dignity and humanity by being systematically denied their fundamental rights which include inter alia the right to free speech. Thus the first and second Chimurenga were all about the restoration of the intrinsic worth of all Zimbabweans that was being denied from them by their oppressors. Within these concepts of dignity and humanity lies the natural right to self-fulfillment which inter alia includes the basic right to free speech. At the core of free speech is not only the ability to express unhindered thoughts, views and expressions of a people or individuals but having access to the means which will enable the people to impart and receive free speech. Blacks people were, therefore, denied the right to own and publish newspapers, licences to operate broadcast and radio stations in Zimbabwe. A number of Artists such as Thomas Mapfumo could not freely express their thoughts in songs for fear of being arrested by the Colonial regime and black academics could not freely carry out their researches or write for similar reasons. Some forms of expressions like public demonstrations were altogether banned under the law and order maintenance and Zimbabweans could not freely associate and assemble in pursuit of their political ideals. I remember some white police officers who would come to my father’s rented accommodation in the NHB section in Sakubva, Mutare to search this two roomed apartment for political documents and my father Vukile Robinson Nkomo was on many occasions in the 1970s arrested and detained at Hwahwa and Gonakudzingwa Prisons for exercising his political rights during the Ian Smith regime because he was a staunch PF Zapu cadre. He used to hide some of his political documents in the chicken run that was at the back of our rented accommodation and yet there was no place that these white police officers could not access.  Black people were therefore systematically denied their dignity and humanity by our former oppressors.     

Thus right to free speech must never be asked again from anyone in the new Zimbabwe. It is a fundamental right that must never be negotiated or bargained as to do so will amount to a denial of the very ideals of the liberation struggle.  In In re Munhumeso and Others[3] Gubbay CJ observed that ‘The importance attaching to the exercise of the right to freedom of expression and freedom of assembly must never be under-estimated. They lie at the foundation of a democratic society and are one of the basic conditions for its progress and for the development of every man.’[4] The judge further argued that ‘Freedom of expression, one of the most precious of all the guaranteed freedoms has four broad special purposes to serve; (i) it helps an individual to obtain self-fulfilment; (ii) assists in the discovery of truth; (iii) it strengthens the capacity of the individual to participate in decision making; and (iv), it provides a mechanism by which it would be possible to establish a reasonable balance between stability and change.’[5] Again in the persuasive judgment of O’Regan J in Fred Khumalo and Others v Bantubonke Harrington Holomisa[6], the South African Constitutional court similarly observed that ‘‘Freedom of expression is integral to a democratic society for many reasons. It is constitutive of the dignity and autonomy of human beings. Moreover, without it, the ability of citizens to make responsible political decisions and to participate effectively in public life would be stifled.’ [7] The value of freedom of expression is also recognised almost globally, in particular, in the following international instruments such as the International Covenant on Civil and Political Rights (ICCPR) (Article 19 (2)), the European Convention on Human Rights (ECHR) (Article 10 (1)), the American Convention on Human Rights (ACHR) (Article 13), and the African Charter on Human and People’s Rights (ACHPR). Freedom of expression is protected in Article 19 of the ICCPR as follows:

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include

freedom to seek, receive and impart information and ideas of all kinds, regardless of

frontiers, either orally, in writing or in print, in the form of art, or through any other

media of his choice

While we recognise that this right is not absolute, our position is that restrictions to this right must be exercised sparingly and in particular political speech must be accorded heightened protection. Provisions such as section 24 of the Public Order and Security Act which requires that organizers of public gatherings notify the police at least four days before the convening of any public gathering is prima facie some form of a prior restraint of free speech.  The exercise of the right to free speech must not be begged for in modern democracy. Zimbabwe must be past that stage because the restoration of the intrinsic worth or value of every Zimbabwean was won through blood and fire. It must therefore never be on the agenda of any negotiation ever again. Free speech must advance the democratic system of governance of Zimbabwe and any law or regulation that requires people to negotiate the exercise of this right in groups or individuals is regrettably contemptuous of the sacrifices of our liberators. The doctrine of prior restrain as explained by Thomas J Emerson ‘…deals with official restriction imposed on speech or other forms of expression in advance of actual publication and its effect is to prevent communication from occurring at all.’[8] Ariel L. Bendor argues that ‘in practice, it is possible to restrict a right through the use of criminal law, civil law, administrative law, or a combination of both. Rights may be limited by means of physical or normative prior restraint (action taken to prevent a given act from occurring), by means of subsequent sanctions (penalties imposed to create a disincentive to act in a certain way), or by combination of the two.’[9] But as observed by Calvin Jefferies ‘Any system of prior restraint of expression comes to court bearing a heavy presumption against constitutional validity.’[10]    

What is therefore immediately critical to Zimbabwe is a system that protects the intrinsic value of individual rights of its citizens as primary and such a system would naturally create a conducive environment for self-fulfillment of the people of Zimbabwe. Essentially, within this system, the people of Zimbabwe will be able to hold their governors to account and cause them to be open in their administration of national affairs. To govern the affairs of a nation is a political privilege which may be taken away by the people at appropriate times. The small elite of national governors must fear the power of the people and not vice versa since the power to govern is given by the people. Any negation of these principles is equal to autocracy which will in turn hurt the fundamentals of democracy and therefore the right to free speech. Isaiah Berlin argues with regards to the concept of negative liberty that ‘You lack political liberty or freedom only if you are prevented from attaining a goal by a human being.’[11]    Laws that are an infraction of liberty must therefore be repealed and in this regard we urge those involved the constitution making process to ensure that free speech receives heightened protection in order to keep protecting the intrinsic value of all Zimbabweans.    

Lyndon T. Nkomo

          

[1] Oscar Schachter, ‘Human Dignity as a Nomative Concept’ American Society of International Law, Vol 77, No.4 (Oct., 1983), p848.

[2] Kant's Moral Philosophy, http://plato.stanford.edu/entries/kant-moral/  Accessed on the 20^th of May 2011.

[3] 1994 (1) ZLR 49 (S).

[4] Ibid, at p56.

[5] Ibid, at p57.

[6] CCT 53/01.

[7] Ibid, at para21.

[8]  Thomas J Emerson, ‘The Doctrine of Prior Restraint’, Law and Contemporary Problems, Vol 20 No. 4 (Autumn, 1955), p648.

[9] Ariel L. Bendor, ‘Prior Restraint, incommensurability, and the constitutionalism of means’, Fordham Law Review Vol 68 1999, p294.  

[10] John Calvin Jeffries, Jr, ‘Rethinking Prior restrain’ Yale Law Journal, Vol 92, No.3 (Jan., 183), p409.    

[11] Isaiah Berlin, ‘Two Concepts of Liberty’, Edited by Nigel Warburton, Philosophy p284

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Introducing the Institute of Free Speech and Democracy in Zimbabwe

Many are the thoughts and desires of men concerning issues that affect them.But such thoughts and desires will remain so unless they are expressed and heard by others. Only when such thoughts and desires are expressed will they begin to influence the way we think and the decisions we taken regarding issues of national interests. This is our call at the Institute of Free Speech and Democracy in Zimbabwe. We are not associated with any political party but we are here to lobby for the creation of a free market place of ideas in Zimbabwe. We are an anti-censorship lobby group and we believe that only when Ideas and thoughts are expressed freely will we realise a democratic Zimbabwe, we all cherish for. We are demanding a free press, licensing of new radio and television stations. We are demanding an open and accountable government in which every free Zimbabwean is free to particiate and contribute towards the growth of our Democracy. We are demanding the re-establishment of a public broadcaster which carries out its public mandate with impartiality, independently and fairly giving access to its resources to all Zimbabweans regardless of their political orientation or backgrounds. We are also demanding unhindered academic and artistic expressions in Zimbabwe. Our fellow Zimbabweans who are hard of hearing and therefore devoid of voice speech must be provided with access to the means  and resources that will enable them to speak their thoughts and desires and to be able to engage anyone on any issue that affects them. The supression of thoughts, reason and ideas breds, hatred which leads to uncontrolled anger which leads to violence. This is what we are here to fight against. Censorship is anathema to human dignity and it denies the people who are affected their humanity.

By Lyndon T. Nkomo (LLB Hons (UZ), LLM (Communications Law) (Wits), MBA (UZ), Ph D Student (Wits))