IFSDZ
Our Voice on the Two Commercial Radio Licences Advertised by the Broadcasting Authority of Zimbabwe
We record a positive development on the free speech side with the indication that the Broadcasting Authority of Zimbabwe has issued a public advertisement for two commercial radio licences. The Zimbabwe Broadcasting Corporation has had a monopoly over the electronic media, that is, both radio and television and as IFSDZ we take cognisance of this development as positive. However, it is important that the process of awarding the licences to the winning bids must be transparent and credible and we demand that the two commercial radio licences must be issued at the end of the process. Therefore, until the two winning bids have been issued with their commercial radio licences, we remain in the advocacy mode. We notice that colleagues in the civic society and those who have been battling to get broadcasting licences have expressed skepticism regarding this latest government move but our position is that let us give the government the long rope to hang itself. In other words, we demand that licences must be issued at the end of the process otherwise free speech will remain a pipe dream for the rest of the people of Zimbabwe if the government does not respect and honour its constitutional obligations to make the means for disseminating and receiving information available to Zimbabweans, which is implicit in section 20 (1) of the Constitution of Zimbabwe. Section 20 (1) of the Constitution of Zimbabwe provides that 'Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.' Therefore, the means to impart and receive information which includes access to the radio frequency spectrum must be availed by the government, which is the custodian of this public resource, to the people. In interpreting section 20 (1) of the constitution the Supreme Court of Zimbabwe in Retrofit (Pvt) Limited vs The Post and Telecommunications Corporation 1995 (9) BCLR 1262 (Z) at p1264 observed that ‘Section 20(1) of the constitution enjoined not only that persons be free to express themselves but that they be not hindered in their means of doing so. The protection of the freedom of expression applied not only to the content of information but also to the means of transmission and reception of such information.’
The major reason for government licensing and regulation of radio frequencies in broadcasting is the long held and judicially accepted principle of scarcity of radio frequencies and therefore government regulation of this resource in many countries is deemed constitutional although there is always an obligation to ensure that the balancing exercise between the recognition and enforcement of freedom of expression on one part and the limitation of the right on the other, must not result in unjustifiable intrusion on the basic right to freedom of expression itself. Notwithstanding the foregoing, the constitutionality of broadcast regulation particularly on the basis of the scarcity of radio frequencies is recognized in many jurisdictions. In Red Lion Broadcasting Co v The Federal Communications Commission 395 US 367 (1969) at 369, a United States Court of Appeal held that the role of government allocation of radio frequencies was constitutional. In the South African matter of Kingdom Radio (Pty) Limited v The Chairperson, Independent Broadcasting Authority, Fevrie AJ acknowledged within the South African context that ‘…in the republic of South Africa we too are dealing with a scarce resource which must be regulated so as to ensure fairness not only to potential broadcasters but to the public.’[1] Marc Raboy notes that the role of regulation is to ensure equitable access to distribution markets for producers and consumers by ‘ensuring that the means of communication can be channeled towards social and cultural objectives’[2] The limitation in section 20 (2) of the constitution among other things implies inter alia the limitation of the right to freedom of expression on the basis of the scarcity of radio frequency spectrum thus justifying government regulation and licensing of the use of radio frequencies for purposes of broadcasting, hence the provisions of section 7 (1) of the Broadcasting Services Act, Chapter 12:06 which provides that ‘Subject to this Act...no person shall provide a broadcasting service or operate as a signal carrier in Zimbabwe except in accordance with a broadcasting licence or signal carrier licence as the case may be…’
Whilst we may not necessarily fully agree on the basis of broadcasting licensing on the ground of scarcity of radio frequency principle, we fully appreciate that some form of regulation is necessary in order to create order in the market place. In any case, the reasons that have been advanced for the case of licensing are noble in some way. For instance, broadcasting just like telecommunications is a public utility service hugely affected by the public interest factor which requires that everyone has reasonable access to the services.[3] The allocation of finite resources such as radio frequencies that has been referred to herein above and it must be pointed out that the extension of the public utility principle makes it imperative for government to intervene and licence by determining inter alia who and how many qualify to use frequencies in a particular band. The licensing process will thus enable the Regulatory Authority to monitor and ensure full utilization of the finite resources and prevent frequency hording by licensees. Furthermore, licensing will ensure that the Regulatory Authority will tie the licensees to specific enforceable licence obligations which include network roll-out programmes and as such achieve other social obligations like universal access to public services through the imposition of universal services obligations on licensed operators[4]. Licensing in many countries was also associated with the concept of liberalization and privatization of former state monopolies intended to transfer monopolistic markets to a free market environment which will expand trade relations and promote competition through regulation of the market.[5]
In the Supreme Court decision of Capital Radio (Private) Limited v The Minister of Information, Posts and Telecommunications SC 99/2000, Capital Radio successfully challenged the constitutionality of section 27 of the Broadcasting Act 12:01 and obtained a ruling that the monopoly it granted to the Zimbabwe Broadcasting Corporation was an infringement of the right to freedom of expression guaranteed under section 20 (1) of the Constitution. The government then through the Zimbabwe Broadcasting Corporation (Commercialization) Act, 2001 promulgated a law which provided for the establishment of the successor companies to the former broadcasting monopoly, the Zimbabwe Broadcasting Corporation.[6] In fact the Zimbabwe Broadcasting Corporation has been a de facto monopoly for over a decade after the Supreme Court judgment in Capital Radio (Supra) and until the new commercial radio licenses are issued, it will remain in that status, practically rendering that decision irrelevant for the time being. Section 3 of the Broadcasting Services Act, establishes a Broadcasting sector regulator otherwise known as the Broadcasting Authority of Zimbabwe whose functions are set out in section 3 of the Broadcasting Services Act, Chapter 12:06 and one of them is to ‘receive, evaluate and consider applications for the issue of broadcasting licence or signal carrier licence for purposes of whether or not he should grant the licence.’[7] In terms of section 3 of the Broadcasting Services Act, the ultimate authority to grant a broadcasting licence lies with the Minister responsible for the administration of the Broadcasting Services Act, Chapter 12:06. The Minister is regrettably endowed with unfettered powers under the Broadcasting Services Act which on the other side makes the BAZ a very weak structure especially if one considers the fact that the Minister has both policy making and regulatory powers as provided for in section 46 of the Broadcasting Services Act. This could probably be the explanation for the inordinate delay in issuing out broadcasting licences in Zimbabwe. Broadcasting is normally a politically sensitive domain in pseudo, young and mature democracies and invariably, in pseudo democracies broadcasting is mainly used as a propaganda tool necessary to advance certain political agendas and philosophies needed to entrench the existence of a particular political dispensation in a particular State. Lord Bingham of Cornhill expresses a similar fear that ‘the risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debates to be right but because, by dint of constant repetition, the public has been conditioned to accept them’[8] The recent judgment of the South Gauteng High Court (Johannesburg) in which the South African broadcasting Corporation (SABC)’s former Director of News, Dr Snuki Zikalala, during the period 2005-2006 period was similarly accused of manipulating its news and current affairs as well as attempting to cover up this manipulation[9] and of particular interest was the manner in which the SABC covered the election of 2005 in Zimbabwe is an example of how public broadcasting is normally manipulated for political ends. The extent of the manipulation included a ban on some indentified independent commentators such as Elinor Sisulu, Moeletsi Mbeki, Trevor Ncube and Archbishop Pius Ncube.[10] The court in this matter held that ‘the conduct of Dr Zikalala amounts sadly, to a “tyranny of the mind of man” by disallowing views expressed contrary to his political opinion and that of the government of the day, and in that process, he “killed reason” instead of allowing reason to be “let free”.[11] In Zimbabwe, the apparent violations of the public broadcast mandate by the Zimbabwe Broadcasting Corporation through lack of objectivity, independence and fairness in its reporting and editorial content is also testimony of the susceptibility of broadcasting to political manipulation and this hurts the ideals of democratic pluralism underscored in the Broadcasting Services Act which provides in Section 2A (1) (f) that one of the key purposes of broadcasting in Zimbabwe is, ‘to ensure the independence, impartiality and viability of public broadcasting services;’
Our position is that the public broadcaster must be reformed to ensure that it broadcast in the public interest, fairly and independently in order to nurture the growth of democratic pluralism in Zimbabwe. The new commercial radio stations must, therefore, support the development of democratic pluralism in the country by ensuring balanced, independent and objective broadcasting. Our hope is that the successful two commercial radio licensees will help to cultivate a new culture of free speech over our airwaves. What is critical at this stage is to ensure that the process of evaluating the licenses is transparent, credible and is done timely. It must result in the award of licences to bidders who not only have the money to invest in the acquisition and deployment of radio broadcasting infrastructure throughout the country thereby contributing to universal access to the services by the people of Zimbabwe but licensees who genuinely believe in the propagation of free speech which is the ‘life blood of any genuine democratic dispensation’. The government must also not interfere with the operations of the new broadcasters as this may compromise their objectivity, fairness and independence to the death of freedom of expression. The pitfalls of the TeleAccess saga must be avoided which resulted in the cancellation of the fixed telecommunications licence of TeleAccess for failure to deploy equipment and provide the licensed services four years after it had been awarded a licence albeit without going through the formality of competitive bidding or some kind of qualification procedure[12].
Lyndon T. Nkomo
Institute of free Speech and Democracy in Zimbabwe
8/6/2011
[1] Kingdom Radio (Pty) Limited v The Chairperson, Independent Broadcasting Authority [2006] 1 All SA 521 (JHC) at Para 84.
[2] Marc Raboy, ‘ Rethinking broadcasting policy in a global environment’ in G Lowe and T Hujanen (eds)
Broadcasting and Convergence: New Articulations of Public Service remit,
[3] Melody, W.H., Policy Objectives and Models of Regulation, Chapter 2in Melody, W.H. ed., Telecom Reform: Principles and Regulatory Practices p11-24 at pg12
[4] Hank Intven and McCarthy Tetrault, Telecommunications Regulatory Handbook, Module 6, Licensing, Para 2.1.2
on page 2.2
[5] Global Trends in ICT/Telecoms sector Reform, Economic and Market Trends that Drive Telecom Revolution,
Chapter 3, Module 2 on page 27 of 75.
[8] R (On the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport, [2008] 3 ALL ER 193 at p 207.
[9] , Freedom of Expression Institute vs Chairman, Complaints and Compliance Committee and Independent Communications Authority of South Africa and the South African Broadcasting Corporation Case No. 2009/51933 (South Gauteng High Court (Johannesburg) para 13.
[10] Ibid, paras 16-22.
[11]Ibid, para 88.
http://www.thezimbabweindependent.com/index.php/business/13350?format=pdf. Accessed on 10 October 2009.
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