Tuesday, 28 June 2011
Institute of Free Speech & Democracy in Zimbabwe: Minister Chombo’s Application for Prior Restraint ...
Institute of Free Speech & Democracy in Zimbabwe: Minister Chombo’s Application for Prior Restraint ...: "IFSDZ PAPER The application by Minister I. Chombo to bar the media from reporting the proceedings pertaining to his divorce trial raises ver..."
Minister Chombo’s Application for Prior Restraint vs The Open Justice System: An Academic View.
IFSDZ PAPER
The application by Minister I. Chombo to bar the media from reporting the proceedings pertaining to his divorce trial raises very interesting legal issues pertaining to the concept of open justice system, public interest and freedom of expression which includes both the right to impart and to receive information and how these concepts can be balanced with the right to privacy that Minister Chombo is claiming in his application.
The reason why there was so much outcry over the possibilities of secret military trials at the Guantanamo Bay is that the very core of criminal justice system which demands that criminal trials must be held in public for the whole world to see, learn, opine and criticise where necessary was under threat. These same principles apply to civil matters as well, especially where it involves a well known and important person in our society such as Minister I. Chombo. It is important to remind Minister I. Chombo that over the years he has survived in politics because of the public support and the faith that his constituency has always had in him. He has thus succeeded in politics on the basis of public support and it is that very same public that has an interest in these legal proceedings and as such puts this matter and even some of his private affairs within the domain of public interest. Therefore, it is not only a matter that is interesting to the public but one that the public has an interest in because of the public status of Minister I. Chombo in this country.
The principles of open justice and the public interest provide important guidance for the courts when attempting to balance the right to privacy with the right to freedom of expression. What is critical in this process deeply rooted in our judicial system is that it must ensure that Justice is not be done in a secluded corner or ‘in a covert manner’ but in the open for the public to see. Thus, in the words of the Chief Justice of the New South Wales, the honourable JJ Spigelman ‘The principle that justice must be seen to be done –which I will refer as the principle of open justice – is one of the most pervasive axioms of the administration of justice in our legal system.’ As noted above, it is important to reiterate that if judicial proceedings are conducted in secrecy it naturally brews public suspicion, whether negative or positive coupled by great anxiety which may be followed up by public ventilation of their disgust to secret trials or as a demonstration of their abhorrence of secret trials and the offences committed. Justice Burger aptly summed up this thought in the matter of Richmond Newspapers, Inc v Virginia in the following manner, “People in open societies do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”
The concept of the open justice system has for centuries given public confidence in our judicial system and this has protected the integrity of our courts in the eyes of public scrutiny that is why even the traditional Chief’s Court is convened in public. This principle protects not only the courts by ensuring that the ‘…judge whilst judging keeps himself or herself under trial’ but Minister I. Chombo as well being a very powerful politician and influential member of our society. The concept of a fair trial is both objective and subjective. Objective from the perspective of the court itself, in that it will not pass judgments that have no legal reasoning based on the law and facts and subjective from the public perspective because of the access they have to the courts they are able either individually or as groups to judge for themselves how our courts handle and judge on legal disputes.
Section 18 (10) of the Constitution of the Republic of Zimbabwe provides for open trials even in civil proceedings and the relevant provision reads ‘ Except in the case of a trial such as is referred to in subsection (14) or with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.’ This, however, does not mean that the doors of the Courts may not be closed to the public. The constitution provides for circumstances under which this right may be curtailed and the exceptional circumstances are provided for in section 18 (11) as follows;
(i) where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of persons under the age of twenty-one years or the protection of the private lives of persons concerned in the proceedings.
(i) may by law be empowered or required so to do in the interests of defence, public safety, public order or the economic interests of the State;
The interest of justice referred to in paragraph (i) refers to the concept of a fair trial. Minister Chombo’s fear is that he will be judged in the media and as such he will not have a fair trial. Surely, our judges are well trained professional individuals who have tried even more complex matters than a mere divorce dispute and as such, they will not be easily swayed by public opinion on a matter which should be technically judged on its facts and evidence available before the court. Furthermore, no one has applied for the proceedings to be broadcast live in which event Minister Chombo may say that he will not be free to give evidence in the face of live cameras. That leaves the print media journalists who will sit in the court just like members of the public. Surely, Minister Chombo is not a person who can be intimidated by crowds or the media. He has addressed very large crowds during his successful political career than that expected to attend his trial and he has given countless interviews to journalists. I do not believe that the interest of justice will be under threat at all. This matter does not raise any issues that may affect public morality and in fact, the private life of Minister I. Chombo is a matter of public interest because of his status as a long-serving government Minister and recognised academic and that makes it an even more compelling for this case to be heard in open court. Public figures feed and succeed in their popularity and as such the public has a right to know what they do away from the glare of the public eye. This trial may also reveal how he has been conducting his public duties as a Minister in government and as such gives the public an opportunity to judge for themselves as to whether Minister Chombo is fit to continue representing the people who have been electing him into public office. In my view, this is a matter in which public interest issues far outweigh the Minister’s claim for privacy and there is no compelling ground to indicate that he will not receive a fair trial. The work of the court must be done in the open. If there are persons under the age of twenty one then instead of censoring the media in this case, the court can simply issue an order that the names of such person shall not be disclosed to the media in order to protect their identity and welfare.
This leaves us with the issue of whether Minister Chombo is entitled to the protection of his privacy. Minister Chombo is prima facie entitled to the protection of his privacy under the Constitution of Zimbabwe just like any other citizen of this country. There is no consensus on the definition of privacy but I tend to align with the view that regards privacy as a form of power to control the information that one has about himself or herself. The right to protection of this information is not absolute and the sphere of protection tends to weaken the more the individual concerned interacts with the public and how much information that individual exposes to the public about himself or herself. In other words, one cannot claim privacy over information that is already in the public domain. With regards to privacy protection of politicians and celebrities, a South African court in the matter of Mantombazana Edmie Tshabalala-Msimang and Another v Mondli Makhanya Case No. 18656/07 noted at Paragraph 38 of that judgment that ‘The public has a right to be informed of current news and events concerning the lives of public persons such as politicians and officials’ and further held that the court held that there was an overwhelming public interest for the public to know about the health condition of the Minister Tshabalala Msimang, because she was a public figure and that her life and affairs had become public knowledge notwithstanding that information had been brought to the public by unlawful means. Thus the overriding factor before publication of any private aspects of a public figure or celebrity is the element of public interest and this element must be overwhelming for any private facts to be disclosed. A lot has been said about Minister Chombo’s private life in the public media and one wonders whether there will be anything new from what the public already knows about him and as such there may be very little to protect. The test of whether one is a public figure was given in the Msimang judgment (Supra) that ‘…the test whether a person is a public figure should be: has he by his personality, status, or conduct exposed himself to such a degree of publicity as to justify an intrusion into or a public discourse on certain aspects of public life? However non-actionable intrusion on his private life should be limited to those aspects that are in the public interest or for public benefit so that unjustified prying into personal affairs unrelated to public life may be prevented.’ There is certainly no doubt that Minister Chombo’s public position, status and exposure makes him a public figure and as such very little protection must be given to his private affairs. In any case, if the issues that he is worried about are his assets and how they were acquired such information is available at the Registrar of Deeds and it is public information for the whole world. What the public may not be aware of is how he may have acquired some of his assets and that is certainly a matter that is in the public interest.
This matter must, therefore, be heard in public to uphold the integrity of our courts, respect the right to freedom of expression of the journalists as they pursue their profession and the right of the public to receive not just information but one that concerns a celebrated politician and public figure. The court must refuse to censor its proceedings and allow the matter to be heard in open court for public good and for the media to be present and report on the proceedings of that trial. The duty of the journalists is simply to report accurately and fairly and not to pass judgments on a matter that is still pending before the courts. Prior restraints are a form of censorship which must be refused by our courts. This is a matter in my view where public interest outweighs the privacy of an individual public figure and politician.
Institute of Free Speech and Democracy in Zimbabwe.
28/6/2011.
Thursday, 23 June 2011
Voters Roll Fiasco
IFSDZ has always insisted that there is an urgent need to reform the public broadcaster in Zimbabwe. Last night (22/6/2011) was another exhibition of lack of fairness, impartiality and balance in ZBC's reporting style. A good amount of time was devoted to the issue of the Voters Roll but suprisingly only the Registrar General, Mr Simon Khaya-Moyo and another officer of the Registar General's office were interviewed on this issue and none of those who allege that the Voters Roll is in disarray were interviewed in order to bring some element of impartiality and balance in this matter of public interest. The issue of the Voters Roll is a matter of public interest and it is not enough for the ZBC to bring people on national TV and during prime time viewing for that matter, to make bare denials pertaining to grave and negative judgment on the state of the Voters Roll. It is certainly in every voter's interest to know about the state of the voters roll and if there are unsatisfactory issues, then the public ,must be given an opportunity to debate and engage each other on this issue. It is also not correct for the the Registrar General's office to be always on the defensive and to attempt to politicise an matter of huge public interest. It is regrettable that the ZBC is failing the Zimbabwean public by not openly allowing public engagement on issues of national interest on national TV or the available public radio stations. If indeed they are publicly funded as we all know, at least we know this because the law says so and we have seen their agents collecting viewers and listeners licence fees in the streets and shopping malls, then they must be reminded that they have an obligation to propagate democratic pluralism in Zimbabwe by ensuring that people of different backgrounds and views freely enagage each other in debates on issues of national interest on public TV and radio stations. The public must be left to judge for themselves and not for the public broadcaster to attempt to influence public perceptions and opinions regarding a matter of public interest. Public media has always been accused of wanting to tell people what to think and how to think. This is a wrong prescription for plural democracy. As IFSDZ we demand that the ZBC must be independent, impatial and exercise proper balance in their reporting. The issue of the Voters roll is neither an MDC nor Zanu PF matter but an issue that concerns all Zimbabweans regardless of political divide. Only free speech can enhance our democracy in Zimbabwe and the public broadcaster has a critical role to play in this respect. Therefore, as IFSDZ, we implore on the national public broadcaster to re-open and invite all stakeholders to debate on the issue of the Voters Roll and no one view must be given prominence over the others. The right of reply is a key element of our broadcasting laws and in any case that is one of the calls of genuine democracy. Such is the duty of the public broadcaster as mandated by the law and any failure to uphold this key legal mandate amounts to a failure on not only its statutory duty but its fiduciary duties towards the people of Zimbabwe as well.
L.T. Nkomo
IFSDZ
23/6/2011
L.T. Nkomo
IFSDZ
23/6/2011
Friday, 17 June 2011
DEMOCRACY AND SOCIAL COMPROMISE: A LEGACY FOR FUTURE GENERATIONS OF AFRICA
IFSDZ PAPER
DEMOCRACY AND SOCIAL COMPROMISE: A LEGACY FOR FUTURE GENERATIONS OF AFRICA
The curse of African democracy is the salient but sometimes open totalitarianism that is evidenced by a culture of violence, the lashes of baton sticks, the choking tear gas smoke and sometimes unlawful arrests, torture, deaths and or disappearances of government critics. Opposition political parties are permitted to exist only as a façade, albeit being a thin and transparent veil, needed to conceal absolutism and intolerance of critical voices and opposition political parties. The key objective is never to allow any opposition political party to win elections or take part in national governance. The exercise of political rights is considerably undermined and the exercise of free speech is rarely permitted. Regrettably, criticism of the ruling elite is in many cases regarded as treasonous and yet ‘democracy does not possess any qualities of absoluteness’ (Han Zhen, 2006). Elections are reluctantly held on time not as an acknowledgement of their democratic value but as a painful constitutional requirement. Opposition political parties find it very hard to pursue their right to free assembly as rallies are usually banned on the ground that they are a threat to national security and access to public broadcast media is almost rare and as such reaching out to the electorate is made hardly possible. If the elections yield unfavourable outcomes for those in power, the most fashionable thing to do is to reject such outcomes and hold on to power. This is a negation of democracy itself. The strangest thing is that those that reject election outcomes purport to represent the will of the people and yet those very same people they purport to represent would have rejected them through the ballot. This short exposé is not intended to re-tell the story of what democracy is all about but to pose the following question, “What legacy are we going to leave for the future generations in Africa?”
The real problem in Africa is mis-governance associated with irresponsible decisions that negate democratic values. Is this the legacy that the future generations should inherit from us? Rejection of democratic values would normally lead to autocracy, corruption and poor economic policies which invariably lead to economic meltdown. This is probably the modern source of African poverty Some naïve politicians still want to blame colonialism for Africa’s economic problems and yet we are still mining the gold, the diamonds, platinum and all forms of precious minerals portions of which the white colonialists took to Europe. Africa has never run out of its precious metals. We have taken over the land which the white colonialists forcibly took over from our fore-fathers and yet we are failing to farm. Some of the key industries that were being run by the former colonial masters were taken over by black brothers and they have mismanaged them to the extent that they are either staggering in viability or some have been liquidated. This is happening, decades and scores of years after the last imperialist left the African soil. Can we continue to point our fingers at the colonialist who left decades ago for Africa’s economic short-comings? Certainly, the white colonial masters have nothing to do with our poor governance skills, corruption, violation of human rights and appetite for war and violence. No white imperialist sits in our cabinets these days and most of our African countries are experiencing economic meltdown because of poor governance and lack of accountability and yet economic prosperity has a positive correlation with adherence to genuine democratic principles.
Democracy does not exclude criticisms or opposition, in fact these are necessary in order to hold those who are in charge of State affairs to account for their actions and decisions as well as to encourage them to be transparent and open in the manner they administer the affairs of the State on behalf of the people. Democracy thus, recognizes that in every society there are competing political interests, which must find some form of social compromise and balance of power. Regrettably, violence, intimidation and intolerance create a state of disequilibrium in the scales of political power and therefore hurt the social compromise that is necessary for democracy to succeed. In circumstances like this, those that may win elections may not be winners because of the charm of their political ideologies and manifestos but on the basis of illegitimate force that cows the nation to submit to the power of illicit internal administrations. This outcome negates the fundamental values of democracy and in fact it props up illegitimate governments and acts as a catalyst for mis-rule, autocracy, corruption and poor governance. Military and police power are used to exert unlawful duress on unarmed civilians to adhere to and comply with an illegitimate government’s policies. The absence of social compromise will lead to political tension, unrest and in many cases civil unrest, disobedience or war.
Many African leaders have the proclivity to personalize national power even where it has been legitimately granted. Sadly, countries are in many instances treated like personal assets and yet the political mandate is of a fiduciary nature and as such it must be exercised in the best interest of the people including those who may not have voted for the government in power. This negation of democracy naturally leads to absolutism and incidentally initiates an evolution of self-destruction of the sitting government with collateral effects on the nation. What is often forgotten is that power belongs to the people and no one is born with the right to rule but that right must be earned through a legitimate, credible, free and fair election. The position of the President or a Prime Minister as the case may be is not different from the position of a chairman of a Board of Trustees. They both must administer the affairs of other persons whether natural or legal persons and what simply differentiates them is the depth and level of the mandate and power given unto them by the people they represent. Otherwise, they carry fiduciary responsibilities and must act in the best interest of the people they represent and within the scope of the mandate and power given to them. History has rejected totalitarianism and that explains why the Metternich system, Hitlerism, Mussolini’s totalitarianism, Mobutu Sese Seko’s autocracy in Congo (Kinshasa) and Idi Amini of Uganda’s vicious cruelty embodied in absolutism all met embarrassing demises.
The nature of modern governance is such that at some point, the nations will hold political leaders to account for their performance and decisions. That process may not necessarily be rapid but evolutionary. History shows that no matter how long it may take for that moment to come, it will never be missed. The path of safe judgment is one that adheres to democratic principles and values which leads to the social compromise of competing political forces and that is the inheritance and legacy that we must leave for the future generations.
Lyndon T. Nkomo
The Institute of Free Speech and Democracy in Zimbabwe, 17TH June 2011
Thursday, 16 June 2011
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Wednesday, 8 June 2011
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