Validity of Mr Jelousy Mawarire's Charge under s88 of the Posts and Telecommunications Act, Chapter 12:05

Mr Jealousy Mawarire is being charged for violating the provision of s88 of the Postal and Telecommunications Act, Chapter 12:05 in that he sent an offence tweet pertaining to the person of the Minister of Higher Education, Prof Jonathan Moyo.

There is uproar in the legal fraternity as to whether a tweet amounts to a telephone message. Traditionally, the known telephone message was a Short Message Service (SMS) and it appears that the outcry is based on the perception that a tweet is not a telephone message. A similar offence can also be made by someone who uses a telephone to make an abusive call against another person under s88 of the Postal and Telecommunications Act, Chapter 12:05. The question will be if one uses Skype call to send offensive voice content can that person be charged under s88(c) of the PTA?

These two offences are committed when one uses a telecommunications system to convey an offensive message whether by voice or text. It is important to understand what a telecommunications system is and it is defined in section 2 of the PTA  as meaning,
'any system by means of which signs, signals, sound, pictures, or communications are conveyed by the agency of electricity, electromagnetism, or by any agency of like nature, whether with or without the aid of wires, and includes telephony and telegraphy  and any improvements and developments thereof;'

The next issue is does Twitter service fall under the term telecommunications service as envisaged by s88 of the PTA?

For a service to fall under the armbit of the definition of a telecommunications service it must make use of a telecommunications system. The concern from the public is that Twitter is a social media application based on the Internet. The Internet is an interconnection of networked computers across the globe. However, for one to access the internet, you will need a telecommunications system. It is the telecommunications system which gives you access to Twitter application which you will then use to convey electronic magnetic signals in form of sound, pictures, text, data to an intended destination. I must point out that SMS is also a telecommunications application although it is not hosted on the internet.

Thus, what is punishable is the misuse of a telecommunications system for the conveyance of abusive content. So if you use Twitter application to convey an offensive text via a telecommunications system you will them be violating s88 of the PTA.

Therefore, if indeed Mr Mawarire sent offence content via Twitter it means he misused a telecommunications system to convey offensive content pertaining another person and on the face of it he may have a case to answer.

However, there is a constitutional perspective to the issue especially with regards to whether s88 of the PTA can pass the Constitutional muster of Freedom of Expression under s61 of the Constitution of Zimbabwe and the question is whether offensive speech is also protected under the Constitution?

The analysis must be done in light of section 61(5) (c) of the Constitution which excludes protection of content inter alia that is likely to maliciously injure a person's reputation or dignity. The court will have to assess the evidence before it to make an appropriate decision as to whether Mr Mawarire's speech is protected under s61(1) or it is excluded from the protected zone by virtue of s61(5).

Otherwise, I do not think that the use of twitter is not covered under s88 of the PTA and it could be argued that s88 also envisage technological improvements of both the system of conveyance of electromagnetic signals as well as service application. This also means that if you use Skype to convey offensive content you may also be prosecuted under s88 (c) of the PTA.

Lyndon Nkomo

HEADLINE: Section 62 of the Education Act, Chapter 25:05 is misaligned with the provisions of Section 6 of the Constitution of Zimbabwe.

Article by Lyndon T. Nkomo
Trustee of Deaf Zimbabwe Trust & IFSDZ

Section 2 (1) of the Constitution of Zimbabwe provides as follows;
'This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extend of that inconsistency.' This provision establishes the basis upon which all laws should be tested against the provisions of the Constitution.
Section 62 of the Education Act, herein after referred to as the 'Education Act', as it now stands is misaligned with the new Constitution because it trammels the provisions of Section 6 of the Constitution which list a number of languages as officially recognized languages in Zimbabwe including Sign Language.
Section 62 of the Education Act, provides that:
62 Languages to be taught in schools
(1) Subject to this section, the three main languages of
Zimbabwe, namely, Shona, Ndebele and English, shall be
Taught in all primary schools from the first grade as follows—
(a) Shona and English in all areas where the mother
Tongue of the majority of the residents is Shona; or
(b) Ndebele and English in all areas where the mother
Tongue of the majority of the residents is Ndebele.
(2) prior to the fourth grade, either of the languages
Referred to in paragraph (a) or (b) of subsection (1) may be
Used as the medium of instruction, depending upon which
Language is more commonly spoken and better understood
By the pupils.
(3) From the fourth grade, English shall be the medium
Of instruction:
Provided that Shona or Ndebele shall be taught as subjects
On an equal-time-allocation basis as the English
Language.
(4) In areas where minority languages exist, the Minister
May authorize the teaching of such languages in primary
Schools in addition to those specified in subsections (1), (2)
And (3).
Our understanding of these provisions is that Shona, English and Ndebele are ranked as superior languages in the Zimbabwean education system and yet there are other languages recognized as official languages in Zimbabwe in terms of section 6 (1) of the Constitution of Zimbabwe.
Furthermore, in terms of section 6 (3) of the Constitution of Zimbabwe,
'The State and all its institutions and agencies of at every level must
Ensure that all officially recognized languages are treated equitably;...'
Section 62 of the Education Act fails the linguistic equity test referred to in section 6 (3) of the Constitution. It makes all other languages inferior to English, Ndebele and Shona and that falls foul of the spirit and letter of the Constitution.
This is why over the years Sign Language was not a recognized language of instruction in Zimbabwean schools and regrettably this situation has been perpetuated into the new Constitutional dispensation. Thus, the Education Act promoted and continues in its current form an oralist approach to the teaching of Deaf Children in schools. We have always argued that Sign Language is the natural language of Deaf people and to teach them using Ndebele, Shona or English inadvertently promotes academic genocide through oralism. These are oral languages in practice whereas sign language is visual in nature.
We also advise that whilst the linguistic and cultural rights of all Zimbabweans are secured under the provisions of section 63 of the Constitution of Zimbabwe, Section 62 of the Education Act is misaligned with the freedoms guaranteed in Section 63 of the Constitution of Zimbabwe as it create linguistic inequity and discrimination by undue and unconstitutional preference of English, Shona and Ndebele as languages of instruction in Zimbabwean Schools.
Deaf people in Zimbabwe want Sign Language to be used as a language of instruction in Deaf Schools and this is consistent with the freedom guaranteed in Section 63 (a) of the Constitution which provides that
'Every person has a right
(a) to use the language of their choice; and...'
Sign Language is the language of choice for Deaf people.
Although the Minister has a discretion to authorize the use of minority languages as languages of instructions in schools under section 62 (4) of the Education Act, that discretion is unconstitutional in that none of the languages listed in Section 6 of the Constitution is classified as a minority language. The Constitution actually introduces the concept of linguistic equity by clearly stating that '...all officially recognized languages must be equally treated...'
Therefore, the discretion which the Minister had before the promulgation of the new Constitution is no longer constitutionally permissible. The languages listed in section 6 of the Constitution of Zimbabwe are all equal and must be used as languages of instruction in Zimbabwean Schools.
Therefore, we call upon the Ministry of Primary and Secondary Education and the Ministry of Justice Legal and Parliamentary Affairs which is responsible for the realignment of the laws with the new Constitution to review the Education Act as matter of urgency as it is violating the constitutional rights of other people whose languages are neither English nor Shona nor Ndebele and in particular the Deaf people whose views we fully represent herein.
Deaf Zimbabwe Trust
29/01/2016

A wolf in sheep's skin!

The call by Morsi for Unity in Egypt may have come a little bit too late. He built an iron curtain between Islamists and non-Islamists and even with some along his rank and file when he assumed absolute powers in order to force the new Islamist backed Constitution on the people. Now that he has achieved what he desired he calls for Unity and national healing, what hypocrisy! He very well knew that his actions would divide the Egyptians but he cared less. He realises that the Constitution which he has forced on his people is a seed bed for future trouble and now he hypocritically preaches national healing and unity. The same conditions that made the Egyptian opposition cry foul remain unchanged and it is the Islamist backed Constitution. In fact, the situation has even worsened now that the new Islamist backed Constitution has been signed into law. Is the Egyptian opposition going to be pacified by this latest call? Morsi has shown that he is a political fox and not to be trusted. His true colours are there for all to see. Probably, we are putting the cart before the horse but the multitude of events that have taken place in his short-time in power characterised him as an untrustworthy leader. However, time will tell whether the Egyptians will heed to his call for unity but he may have to climb down from his hardline stance and desist from his autocratic tendencies, if he is to regain the trust and confidence he needs to make Egypt governable again without a heavy hand.

Egyptian Protests

 

 

Doctrine of Common Purpose and the 270 Arrested Miners

I was surprised last night to learn that the South African Prosecuting Authority has decided to charge the arrested Marikana Mine protesters with the murder of their 34 colleagues who were executed in day light by the South African Police Service agents  and in front of international television cameras.

What is even more disgusting is that the SAPS agents who murdered the protesters in cold blood are free and waiting for the outcome of a so called independent police investigation. Who is policing this independent police investigation being done by another department of the SAPS?

One also wonders how the doctrine of common purpose is being applied in these circumstances when it is clear as to who killed the 34 miners. According to an AFP report Vincent Nmehille, a law professor at the University of the Witwatersrand  has questioned the charges, "In charging the miners for the death of the miners killed by the police, I do not see how common purpose doctrine could be used here," How is the prosecution going to link the miners' mens rea and conduct of the police? This may certainly be an incorrect application of the legal doctrine of common purpose. Were the 270 arrested miners making a common cause with the police agents shot their peers? This question must be answered and proved against each one of the miners. The prosecution must provide details of what each one of them did in connection with the crime committed by the police. I am not sure whether police witnesses will be able to do this except showing that these people were present at a crime scene and demonstrating against their employer for higher wages when the police shot at some of them. In other words the challenge is how did they support or participate in the murder crimes committed by the police?

Doctrine of Common Purpose under South African Law 

According to Mosoneke J in Thebus and Another v The State (2003) AHRLR 230 (SACC) 2003, at para 18,
             The doctrine of common purpose is a set of rules of the common law that regulates the
             attribution of criminal liability to a person who undertakes jointly with another person or
             persons the commission of a crime.

He further goes on to refer to the definition given by Burchell and Milton which provides that

Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ''common purpose'' to commit the crime.

The fundamental question that arises from this definition is whether these miners were actively associating with the police to murder their colleagues?One wonders how the prosecution will establish the causal link needed to prove whether there was common purpose between the police and the arrested miners who could themselves have been victims of the police actions especially in light of the fact that the police were indiscriminately firing at the miners including those who were arrested.

Again, Professor Syman argues that

            the essence of the doctrine is that if two or more people, having a common purpose to commit a
            crime, act together in order to achieve that purpose, the conduct of each of them in the execution
            of that purpose is imputed to the others.

The major hurdle as noted above, which the prosecution shall have to overcome is whether these arrested miners shared the same common purpose to kill their fellows so as to associate themselves with the actions of the police.

In S v Mgedezi, the following principles were laid out as the basis for invoking the doctrines of common purpose:

In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.

Yes, the 270 miners were present on the hill where their colleagues were murdered by agents of the South African Police Service.They were aware that the police were firing at the deceased miners, ironically including some of the arrested 270 miners who are now being charged of murdering their counterparts. We must continue to remind you that these arrested miners were potential targets of police shooting and therefore they survived by sheer luck or some of them were not on the paths of the shower of live ammunition unleashed on some of the unfortunate ones. The prosecution's problem is likely to arise from point number three because they have to prove that they (arrested miners) shared a common purpose with the police to kill their fellows by taking action that supported the killing that the police was doing. The causal connection may be impossible to prove here and the prosecution has to discharge their onus beyond reasonable doubt as to what exactly each of the accused miners was doing in connection with the murders in order to connect them or associate them to the criminal conduct of the police. As indicated before, the prosecution must prove mens rea (legal intention) to kill their fellow miners on the part of each one of the 270 arrested miners or that they must have foreseen death occurring and performed their acts of association in support of the killing of their colleagues by the police recklessly as to the consequences. This is not an easy task for the prosecution and am sure time will tell. 

What is also interesting to note is that if the police were the main perpetrators then why have they not been arrested because these arrested miners did not actually kill their colleagues but the police did that? Is the prosecution not being selective here? We hope the rule of law will be upheld especially the principle which states that no one is above the law.

A further problem is that this horrendous incident has been largely politicised especially by  President Zuma. He suggested that this incident did not just happen but must have been precipitated by some political force. I take a different view of this matter and argue that it was a result of police incompetence and recklessness in dealing with an issue that they were monitoring for almost a week until they decided to end the miners' strike by executing some of them. The police's action was deliberate especially if one analyses the videos captured by eTV and Reuters. One cannot avoid prejudging especially where there were loss of lives asking for better wages. You hear one of them shouting, "Cease fire, Cease fire, Cease fire!!!"This was probably a realisation that they had reacted inapproriately to a situation and was some form of damage limitation. God knows how many would have died if one of them had not asked the others to stop firing. The picture below tells you part of the story.

Adapted from Times Live

We hope these miners can be granted bail and that all members of the police force who were present at Marikana Hill will be arrested and prosecuted for their heinous crimes. If there was any political force at work then we hope the Commission of Inquiry set up by President Zuma will reveal the identity and the nature of this unknown political force.

Conclusion

Our concern is also that the police directly attacked the miners' right to freely express themselves thereby denying them the same right after the merciless execution of some of their colleagues. South Africans are better placed to tell the world what oppression is all about especially after their bitter experiences during the evil apartheid regime. We hope the killers of the 34 miners who are members of the SAPS will resign and hand themselves over for prosecution. Minister Mtetwa and the Police Commissioner must also be held to account for what happened and be prosecuted if they gave orders to shoot at the miners. The decision to shoot must have been given prior to this horrendous incident and we are all waiting to know who ordered the executions. In the meantime, Mtetwa and the Police Commissioner will do good to the people of South Africa by gracefully resigning from their positions, that is if they both have a conscience. This must be a issue of principle and not whether or not the right decisions were taken on this day of horror. The number of lives lost is unimaginable in a country that prides itself as a good example of well performing democracy. The killing of  the 34 miners should not have happened at all especially when the police were closely monitoring events in Marikana for almost a week. The primary duty of the police is to protect the citizens. The SAPS failed the people of South Africa whether or not they were acting, in their improvised defence, in self defence. This is precisely why the Minister of Police and the Police Commissioner have both a moral and legal duty to resign immediately.

Lyndon T. Nkomo
IFSDZ  

The threat of unrestricted cross media ownership in Zimbabwe

The threat of unrestricted cross-media ownership in Zimbabwe

L.T. Nkomo                                                    IFSDZ PAPER       11/2011

Background

The application for a commercial radio licence by Zimbabwe Newspapers (1980) Ltd (Zimpapers) has sparked debate on cross-media ownership to the extent that Dr Chimedza, one of the board members of the Zimpapers used the Herald newspaper to accuse Prime Minister, Morgan Tsvangirai, of attempting to interfere with the activities of BAZ regarding their application for a commercial radio licence. BAZ is currently holding public interviews of the shortlisted applicants who include Vox Media Production (VOP), Hot Media and AB Communications in addition to Zimpapers Talk Radio. The complaint from Prime Minister, M. Tsvangirai is premised on the reasoning that those that own newspapers must not own radio or television stations because of potential hindrances to information pluralism. In other words, the dominance by one media group in more than one media stream will harm democracy in Zimbabwe. Cross-media ownership occurs ‘when a person or company owns outlets in more than one medium that is a newspaper, radio, and television in the same geographical market’ (Marc Edge). The fear that Prime Minister, M. Tsvangirai, appears to be expressing is that if Zimpapers’ Talk Radio project is awarded a commercial radio licence it will end up owning and controlling more than one media stream that is a number of newspapers and a commercial radio station.

Other politicians are particularly concerned with the possible licensing of Zimpapers Talk Radio because there is a strong perception that the Zimpapers newspapers operate under the significant influence of one of the GNU partners. One of the fundamental objectives of the GNU particularly with regards media reforms in Zimbabwe as stipulated in Article 19(17(d) and (e) of the GNU Pact is to

“(d) ensure that public media provides balanced and fair coverage to all political parties for the legitimate political activities

(e) that public and private media shall refrain from using abusive language that may mate hostility, political intolerance and ethical hatred what unfairly undermines political parties and other organizations ”

These objectives recognise that the media in Zimbabwe was polarized at the time of their formulation. These objectives embody the notion of media pluralism and the need to foster media equilibrium which entails the peaceful co-existence of different media operators regardless of their alignment and beliefs (Senevirante & Muppidi: undated). Section 2A (d) (ii) of the Broadcasting Services Act, Chapter (12:06) expresses a fundamental principle regarding broadcasting in Zimbabwe;  

‘that the broadcasting services in Zimbabwe taken as a whole must ensure public debate on political, social and economic issues of public interest…so as to  foster and maintain a healthy plural democracy’

In this context, unrestricted cross-media ownership will not foster and maintain a healthy plural democracy in Zimbabwe. There are political overtones expressed by those against the licensing of Zimpapers Talk Radio to the effect that because of Zimpapers’ perceived political stance as exhibited in its print publications, granting a commercial radio licence to Zimpapers’ Talk Radio project may further deepen media polarization in Zimbabwe.

This fear is again premised on the huge share of the audience that the Zimpapers group has by virtue of the number of its daily and weekly publications and as such has the critical mass to influence public opinion in one direction. Their position would be made stronger if it were to operate and control a national radio station and they will thus make the political landscape uneven. For instance according to the Media Monitoring Project  Zimbabwe (MMPZ),  May 2011 report, the following statistics were recorded on the number of newspaper articles published by the various newspapers under the Zimpapers stable on the activities of the three main political parties in Zimbabwe;

Publication	ZANU PF	MDC -T	MDC-M
The Herald	55	34	8
Chronicle	25	16	9
The Manica Post	5	3	2
The Sunday Mail	12	14	5
Sunday News	5	6	3
Total	102	73	27

    

The MMPZ statistics given above show uneven publications and this has a chilling effect on freedom of expression in Zimbabwe. These statistics help to strengthen arguments against granting Zimpapers Talk Radio a commercial licence. Webster & Bloom (1990: 104) observe that

    ‘… Public communication lies at the heart of the democratic process that citizens require if their equal access to the vote is to have any substantive meaning, equal access also to sources of information and equal opportunities to participants in debates which political decisions rightly      flow.’

The publications of Zimpapers on political activities of the three main political contestants are unbalanced and as such run contrary to the spirit of information pluralism which is enshrined in the Broadcasting Services Act, Chapter 12:06. The question is that if they have failed to publish fair and balanced reports in their print media how can they be trusted to fairly discharge the same obligations as a broadcaster?

The main argument here is that ‘larynxes’ must not be given only to a few people and media space must not be controlled by a few people or organizations. Unrestricted cross-media ownership hurts information pluralism and destroys the essence of the modern public space. People no longer meet only in city halls to conduct political debates but even in print and electronic media spaces, thus media monopolies are anathema to democratic values that are exercised in public spaces. The success of democracy depends on the level of information diversity available to the people (Webster & Bloom (1990:104)) and an ‘…informed citizenry is more apt to contribute to national development (Senevirante & Muppidi: undated). 

Zimbabwe’s Media Market

Zimbabwe’s broadcast media market is currently a de facto monopoly in terms of radio and television broadcasting services. The Zimbabwe Broadcasting Corporation (ZBC) is the only operator running two television stations and four (4) radio stations especially after the closure of Joy TV which was owned by Flame Lilly Broadcasting Limited on 31 May 2002 (Ifex: 2002). Several attempts were made by a number of potential broadcasting companies to secure licences without success, and the case in point is that of Capital Radio (Private) Limited vs Minister of Information and Publicity in the President’s Office and The Attorney General (Intervening) SC 128/02. Notwithstanding the promulgation of the Broadcasting Services Act, Chapter 12:06 which liberalized the broadcasting sector following the Supreme Court decision in Capital Radio (Private) Limited v Minister of Posts and Telecommunications Corporation SC99/2000 which declared ‘that section 27 of the Broadcasting Act 12:01 was unconstitutional in that the monopoly it granted the Zimbabwe Broadcasting Corporation was an infringement of the right to freedom of expression guaranteed under section 20(1) of the Constitution of Zimbabwe, BAZ has been reluctant to issue broadcasting licences. This has thus sustained ZBC’s monopoly in radio and television broadcast markets to this day. The reluctance to issue either radio or television broadcasting licences has also consequently led to the opening up of pirate radio stations such as Radio VOP and SW Radio which broadcast direct into Zimbabwe from external bases.

It must be noted that there is intense competition in the print media market particularly following the licensing of daily newspapers such as News Day, The Daily News, The Daily News on Sunday and The Patriot sometime in May 2010 in addition to those that were already in existence which include the newspapers under the Zimpapers stable such as The Herald, The Sunday Mail, The Chronicles, The Sunday News, Manica Post, H-Metro and B-Metro and the privately owned weekly publications such as  The Financial Gazette, The Independent and The Standard.  

Drivers of Cross Media Ownership  

Ordinarily, cross-media ownership is pursued to achieve economies of scope across multiple media as costs may be reduced through the synergy of sharing staff and content in different media and revenue may be increased through the sale of multimedia advertising packages. The convergence of technologies particularly in the communications industry (broadcasting, telecommunications and other information communications systems) is making cross-media ownership attractive as newspaper owners are shifting some of their focus to the internet by establishing web portals that offer both text and/or video and audio content resembling traditional television and radio content services. Matthew Bloom (2006) rightly observed that both internet and satellite radio programming are finally challenging terrestrial radio in a manner similar to cable’s challenge to broadcast television a generation earlier; these new technologies threaten to hijack market share and revenue from a traditional broadcast medium much as cable did. Broadband technology enables one to broadcast talk radio and music over the internet to reach listeners via their personal computers. Satellite broadcasters use a pay model, selling special radios for listeners to tune into digital satellite programming. Online and satellite stations are increasing their audiences while traditional radio has struggled for over a decade to maintain its audience.

Developments in technology are again the driving force behind what is known as ‘convergence journalism’ a development where key people, multimedia editors assess each news event on its merits and assign the most appropriate staff for the story as well deciding along the way which parts of the story are told most effectively in either print or broadcast and/or other digital forms (Quinn, 2005:32, Dailey et al, 2005: 5; et al, 2011:216).

In light of these technological changes traditional radio and television, broadcasters are migrating their programmes to the internet in order to capture audiences who are moving away from the scheduled programming that is usually associated with traditional broadcasting. This is happening in markets that are highly developed and with high internet penetration rates. Thus content sharing becomes particularly critical in highly competitive environments and in mature markets where customers are able to elect what they want to hear or watch from an array of electronic media platforms. Thus business survival is now difficult for those that are publishing on one media platform particularly in mature markets where competition for content and audiences is stiff because of high numbers of media outlets, hence the need for cross-media synergies. The level of maturity of a media market in terms of competition and degree of liberalization of the industry in a country is critical for policymakers in determining what kind of limitations should be placed on cross-media ownership. The general practice is that the more liberalized (high numbers of media operators in each media stream) the market the lighter the restrictions on cross-media ownership and the reverse is true.   

The legal position on Cross-ownership

Prior to 2007, Zimbabwe had limitations on cross-media ownership provided for in Section 19(1) (b) of the Broadcasting Act, Chapter 12:06 which read ‘no broadcasting licensees … shall own or control a newspaper or more than ten per centum of the securities in a body corporate owning or controlling a newspaper’. This repealed provision would have disqualified Zimpapers from applying for a radio broadcasting licence because it owns and has control in a number of newspapers publications in circulation in Zimbabwe. The provision was well suited for Zimbabwe’s immature and inefficient broadcast market and was consistent with the spirit of democratic pluralism embedded in broadcasting laws.

The repeal of Section 19 (1) of the Broadcasting Services Act by Section 14 of the Broadcasting Services Act (Amendment) Number 19 of 2007 removed restriction on cross-media ownership in Zimbabwe. Therefore, there is nothing that can prevent BAZ from awarding Zimpapers Talk Radio, a commercial radio broadcast licence if they meet the criteria set out. A constitutional challenge is an available option particularly to seek a determination by the Supreme Court on whether unrestricted cross-media ownership is a violation of Section 20 (1) of the Constitution and if the Supreme Court affirms this then Zimpapers may be disqualified from holding a broadcast license. This will also force the responsible Ministry to trigger the amendment the relevant Section 19 of the Broadcasting Service Act, Chapter 12:06. The evolution of constitutional jurisprudence is beginning to embrace the idea of media pluralism as being an integral part of freedom of expression even though many constitutions are not explicit in this respect. Michal Barton (2010) argues that media pluralism should be regarded as a constitutional principle and media pluralism should not be considered as a vertical relationship between the State and the Individual (in the form of a ‘right to pluralism”) but should be considered an objective constitutional value which is derived from the constitutional guarantee of freedom of expression and that every democratic state should be bound by such constitutional values in its regulatory activities.’ This is a persuasive argument which requires the determination of the Supreme Court of Zimbabwe sitting as a constitutional court.

Constitutional Implications

Section 20 (1) of the Constitution of Zimbabwe guarantees the protection of freedom of expression and this is the basis upon which print, radio and television media licensees are permitted to publish or broadcast on their licensed platforms. However, the Supreme Court of Zimbabwe in two important judgments in the matters of Retrofit (Private) Limited v Posts and Telecommunications Corporation and The Attorney General (Intervening) 1995 (9) BCLR 1262 (Z) ruled against the monopoly of the Posts and Telecommunication Corporation in providing telecommunications Services in Zimbabwe and in Capital Radio (Private) Limited v The Minister of Information and Publicity and the Attorney General (Intervening) (Supra) where it decided that the monopoly of the Zimbabwe Broadcasting Corporation was unconstitutional. Zimbabwe’s constitutional jurisprudence therefore clearly holds that monopolies, particularly in the communications sector, are unconstitutional because they violate the provisions of Section 20 (1) of the Constitution. Freedom of expression is regarded as the lifeblood of democracy. In  In re Munhumeso 1995 (2) BCLR 125 (ZS) the Supreme Court re-emphasised that freedom of expression was a pre-requisite for the progress of democracy and it is important in that;

(a)  it helps an individual to attain self-fulfilment;

(b)  it assists in the discovery of proof;

(c)   it strengthens the capacity of an individual to participate in decision-making; and

(d)  it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

The fears that unrestricted cross-media ownership induces in Zimbabwe is that unrestricted domination of media streams available in Zimbabwe by a single entity will stifle free speech because of lack of information pluralism which is necessary to assist individuals to discover the truth, make informed decisions and may hinder some individuals from attaining self-fulfilment. Unrestricted cross-media ownership would, therefore, be a negation of freedom of expression and information pluralism in this context. Unrestricted cross-media ownership is worrisome taking into account the level of maturity of the broadcast media market in Zimbabwe which although legislation has liberalized, there is little competition and market efficiency. Unregulated cross-media ownership may, therefore, be prima facie unconstitutional because of the monopolistic effects it may create in the media market in Zimbabwe.

Comparative perspective

Other countries such as South Africa have a restriction on cross-media ownership. Zimbabwe and South Africa share a number of common features in their histories. They were both under British colonial power and because of this, the two countries had the same common law that is, Roman-Dutch law. The two countries legal jurisprudence has evolved in a similar direction and both countries have liberalized their telecommunications and broadcasting sectors, though South Africa has made more significant advances in terms of capital investment and improving competition of multipliers (broadcasters and publishers) in these sectors. As such their media industry is much more mature and competitive than Zimbabwe’s market. This makes South Africa a relevant reference point on this subject.

South Africa’s communications industry is governed by the Electronic Communications Act, 36 of 2005 (ECA). While the ECA permits cross-media investment, it, however, places restrictions on the level of investment in cross-media business in Section 66 (1) thereof by stating that cross-media control of broadcasting services must be subject to such limitation as may from time to time be determined by the National Assembly acting on the recommendations of the regulator (Independent Communications Authority of South Africa). Section 66(2) of the ECA restricts persons who control newspapers from acquiring or retaining financial control of a commercial broadcast service licensee in both television service and sound broadcasting service. A restriction of this nature will not be new to Zimbabwe because the previous Section 19 (1) of the Broadcasting Services Act, Chapter 12:06 had more stringent restrictions than section 66 (2) of the ECA and therefore serious considerations must be made to restore cross-media ownership restrictions under Zimbabwean law. The levels of restrictions may differ but it must be such that the newspaper media owner or vice versa should not have a controlling interest financially as a shareholder or in the Board and must be barred from exercising editorial control over the benefiting entity. Section 66 (2) of the ECA does not prohibit a person who controls a newspaper from acquiring equity in a television or radio broadcast station but restricts that person or company from acquiring financial control in a television or sound broadcasting licensees. Section 66 (3) of the ECA provides that no person who controls a newspaper may have control of a commercial broadcasting service license either in television or sound broadcasting services. The limited permission on cross-media investment in South Africa is done in recognition of the need for the establishment of synergies through converging of technologies particularly with respect to content aggregation and choice of media platform for publication of certain news events. It also enhances competition in the media market and democratic pluralism.

M. Edge (undated) points out that diversity of media ownership is considered crucial to ensuring diversity of news information to the people. The media influences public opinion and the objectives of information pluralism, if media monopolies emerge from cross-media ownership, will not be realised. Different types of media with different ideologies, beliefs and leanings must coexist and be at equilibrium in any democratic society (Senevirante & Muppidi: undated). The current Zimbabwean licensing process must therefore be suspended pending an urgent amendment of the Broadcasting Services Act, Chapter 12:06 because if the process is allowed to continue and Zimpapers’ Talk Radio project is awarded a licence it may be very difficult for the government to reverse that decision and require Zimpapers to restructure its shareholding retrospectively. 

The case of Telecel Zimbabwe Limited is relevant in this context in which the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) cancelled the former’s mobile telecommunications licence for failure to comply with Section 36 (1) and (2) of the Postal and Telecommunications Regulatory Authority which imposes restrictions on ownership and control of cellular, telecommunications and postal licensees. Telecel continues to operate after noting an appeal against that decision to cancel its licence and obtained a High Court Order restraining both the Ministry of Transport and Communications and POTRAZ from interfering with their operations pending the determination of their appeal.  Therefore, the most practical and legally safe decision is to amend the Broadcasting Services Act, Chapter 12:06 coupled with the suspension of the current licence application evaluations being done by BAZ.

There is a greater public interest in protecting Zimbabwe’s democratic and constitutional values than protecting the commercial interests of one entity. In any case, if that entity were to be licensed, it will transmit its broadcast programmes using radio frequencies which are a public resource. The public interest factor is, therefore, stronger and on this basis, BAZ should seriously make recommendations to the responsible Minister of Information and Publicity to trigger the amendment of the relevant sections of the Broadcasting Services Act, Chapter 12:06 for the inclusion of cross-media ownership limitations. BAZ has that power in terms of Section 3(1) of the Broadcasting Services Act, Chapter 12:06 and in terms of this Section, it may do one or more of the following;

   (c)      to receive, evaluate and consider applications for the issue of any broadcasting licence or signal carrier licence for the purpose of advising the Minister on whether or not he should grant the licence;

   (e)     to advise the Minister on ways of improving and promoting a regulatory environment that            

           will facilitate the development of a broadcasting industry in Zimbabwe that is efficient,

            competitive and responsive to audience needs and the national interest   

   (f)     to encourage diversity in the control of broadcasting services

These functions are profound and the BAZ has to be honest with itself and accordingly advise the Minister that unrestricted cross-media ownership will not encourage diversity in the control of broadcasting services and that the introduction of limitations on cross-media ownership will enhance the regulatory environment by promoting diversity of media ownership and control as well as information pluralism.

Conclusion

De facto monopolies that emerge from unrestricted cross-media ownership work against freedom of expression which is an indispensable ingredient of democracy hence the need for media pluralism. Pluralism is essential in any democratic society that recognizes and encourages the existence and the rights of different views, perceptions and expressions to coexist in a peaceful manner (Senevirante & Muppidi: undated). What is needed is a strong commitment by the government of Zimbabwe and BAZ to the human rights obligation to promote and protect media pluralism through appropriate laws and regulatory directives and determinations. BAZ may therefore on the basis of the foregoing advise the Minister of Information to decline awarding Zimpapers Talk Radio a broadcast licence in addition to advising him to cause an appropriate amendment of the Broadcasting Services Act, Chapter 12:06 as suggested above in order to prevent the creation of an unrestricted cross-media ownership which may be difficult to reverse.

Developing Story: A Judiciary Under Threat in SA

Click on this link and read more. Visit IFSDZ's last week story on the same topic. 

http://www.citizen.co.za/citizen/content/en/citizen/local-news?oid=225961&sn=Detail&pid=334&Zuma-wants-judiciary-out-of-the-way

Or

http://www.businessday.co.za/articles/Content.aspx?id=153803


Lyndon

Institute of Free Speech & Democracy in Zimbabwe: A Judiciary under Threat!

Institute of Free Speech & Democracy in Zimbabwe: A Judiciary under Threat!: IFSDZ PAPER 16 September 2011...