By Veritas
The Zimbabwe Media Commission Bill [link] was published in August last year and, after public hearings conducted by the parliamentary Portfolio Committee on Information, Media and Broadcasting Services [the committee’s report can be accessed on the Veritas website ‒ link], it is currently going through its Committee Stage in the National Assembly. The responsible Minister has tabled amendments to the Bill, [which can also be accessed on our website [link].
In this Bill Watch we shall analyse the provisions of the Bill, but first we shall look at its constitutional background.
Constitutional Background to the Bill
The Zimbabwe Media Commission is established by sections 248 and 249 of the Constitution. It consists of a chairperson and eight other members all appointed by the President, the chairperson after consultation with Parliament’s Committee on Standing Rules and Orders, the other members chosen from a list of 12 nominees submitted by that committee. [We should point out that the members have only this month been appointed, some seven years after the Commission was established by the Constitution. The commissioners appointed to the Media Commission under the old Constitution continued in office, probably illegally, for some years after the present Constitution came into force in 2013. It is ironic that having waited such a long time, government is now fast tracking the Bill through Parliament.]
The Commission’s main functions are set out in section 249 of the Constitution:
“to uphold, promote and develop freedom of the media;
“to promote and enforce good practices and ethics in the media;
“to monitor broadcasting in the public interest and, in particular, to ensure fairness and diversity of views broadly representing Zimbabwean society.”
The Constitution goes on to say in section 321 that an Act of Parliament may confer additional functions on constitutional commissions and can regulate the manner in which they exercise their functions.
It is against this background that the Bill must be considered.
Outline of the Bill
Scope of the Bill
Clause 2 of the Bill defines the word “media” in wide terms, to include print media, broadcasting, television and internet media. Since the Commission’s functions relate to media, the definition effectively defines the scope of the Commission’s functions. There should be no difficulty with this so long as the definition covers all forms of information dissemination that are normally regarded as falling within the usual meaning of the word media, but there are two problems:
· the Minister will be permitted to make regulations extending the definition to cover additional forms of information dissemination not already included in the definition. This means that the Minister will be given the power to make regulations which have the effect of extending the Commission’s functions, i.e. conferring additional functions on the Commission. The problem is that under section 321 of the Constitution additional functions can be conferred on the Commission by an Act of Parliament but not by a Minister. In this respect, therefore, the Bill is unconstitutional.
· The definition is wide enough to cover social media, and issues of privacy may arise if the Commission seeks to control social media. These issues are not addressed in the Bill.
Functions, membership and staff of Commission
Part II of the Bill deals with the functions, membership and staff of the Commission:
· Clause 3 states that none of the commissioners, apart from the chairperson, can be full-time employees of the Commission. In fact none of the commissioners, not even the chairperson, should be employees of the Commission, whether full-time or part-time. If, as seems likely, the clause was intended to mean that only the chairperson may be engaged full-time on the Commission’s business, then the clause should be reworded to make it clear.
· Clause 4 extends the Commission’s functions to allow it to secure compliance with laws regulating media and media practitioners and with treaties dealing with freedom of expression. The reference to treaties is welcome, because it means the Commission will have the function of ensuring that Zimbabwe complies with treaties such as the International Covenant on Civil and Political Rights (article 19), the African Charter on Human and People’s Rights (article 9) and the Declaration of Principles on Freedom of Expression in Africa (Banjul, 2002).
· Clause 5, as read with paragraph 1 of the Second Schedule, sets out disqualifications for appointment as a commissioner. While the disqualifications are not unreasonable in themselves ‒ persons will be disqualified if they are not citizens, or are insolvent, or have been convicted of an offence involving dishonesty ‒ there is nothing in the Constitution that permits an Act of Parliament to limit the persons who can be considered for appointment to the Commission. So the provision is probably unconstitutional.
· Clause 14 states that if members of the Commission knowingly participate in an investigation or other proceeding in which they have a conflict of interest, they “shall be guilty of gross misconduct” and will be dealt with in accordance with section 237(3) of the Constitution, i.e. dismissed. This is unduly draconian and probably unconstitutional. While commissioners can certainly be dismissed for gross misconduct, the question whether a particular commissioner’s conduct amounts to gross misconduct is a matter for a tribunal to decide under section 237(3).
Investigations, hearings and inquiries
Part III of the Bill gives the Commission power to hold investigations, hearings and inquiries [the Bill does not indicate what difference there is between an investigation, a hearing or an inquiry so we shall refer to them collectively as investigations].
The Commission will be able to investigate violations of freedom of expression, either on its own volition or on receipt of complaints from members of the public (clause 8 of the Bill). For the purposes of an investigation the Commission will have the same extensive powers to summon witnesses and hear evidence as a commission of inquiry (clause 10). Anyone with an interest in the subject of an investigation will be entitled to make representations to the Commission (clause 11) and anyone whose conduct is being investigated must be given an opportunity to be heard (clause 10(6)). Although clause 10 allows the Commission to conduct investigations in private (i.e. closed to the public), the Bill makes it clear that any decision to hold a closed investigation must comply with section 86(2) of the Constitution, that is to say it must be fair, reasonable, necessary and justifiable in a democratic society based on openness. Investigations will have to be concluded within 60 days, or earlier when time is of the essence (clause 11(4) of the Bill).
Following an investigation the Commission will have power under clause 12 of the Bill to make “such order or recommendations as it considers appropriate in the circumstances” in order to redress any violation of the law that may have taken place, and its orders will be enforceable by the High Court, either on application by the Commission itself or by the complainants in whose favour the orders were made (clauses 13 and 15).
Although generally the Bill’s provisions for investigations are reasonable, there are some problems:
· Clause 8(4) prohibits the Commission from investigating conduct that occurred before the Bill comes into force, or investigating complaints submitted more than three years after the conduct complained of. These restrictions on the Commission’s powers, particularly the first, are not warranted by the Constitution.
· There is no provision for the Commission to deal with complaints through mediation or arbitration, which will often be more appropriate ways of settling complaints than conducting formal investigations.
Media Fund
A new Part V, inserted into the Bill by a Committee Stage amendment, will establish a Media Fund with following objects:
· to build capacity in media services, particularly through training media practitioners, in order to maintain high standards
· to fund research and development, and
· to promote public awareness in the right of access to information and protection of privacy [making the public more aware of their right to freedom of expression would perhaps be more useful].
The Fund will get its money from levies to be imposed on mass media owners [a term that is not defined in the Bill] and from money appropriated by Parliament. The Fund will also receive any money the Commission may have left over at the end of its financial year.
The Commission will administer the Fund and hold it in a bank account from which, curiously, all withdrawals will have to be made by cheque [Does anyone use cheques nowadays?].
Media self-regulation
Another Committee Stage amendment will allow the Commission to recognise associations of media practitioners with power to regulate the conduct of their members and to adjudicate complaints from the public. Anyone with a complaint against a member of a recognised association will have to approach the association first before complaining to the Commission.
Self-regulation by the media is to be encouraged because, according to article IX.3 of the African Commission on Human and People’s Rights’ Declaration of Principles on Freedom of Expression in Africa:
“Effective self-regulation is the best system for promoting high standards in the media.”
Accreditation or registration of journalists
The Bill makes no provision for the accreditation or registration of journalists. The law which did provide for this, the Access to Information and Protection of Privacy Act [AIPPA] was repealed earlier this year by the Freedom of Information Act, though regulations which provided for the accreditation of journalists by a Media Commission established by AIPPA were preserved in force. The Commission with which this Bill is concerned ‒ i.e. the Media Commission established by the Constitution ‒ will have no power to accredit or register journalists under those regulations.
General provisions relating to Commission
The Bill has standard provisions for the Commission’s procedures, mostly contained in the Second Schedule. Points to note:
· Records of all the Commission’s proceedings, findings and orders must be kept open for public inspection under clause 20 of the Bill. This is an admirable provision, which if followed will ensure that the Commission is more transparent than other constitutional commissions such as the Zimbabwe Electoral Commission.
· On the other hand, under clause 21 the Minister of Information will have to approve all regulations made by the Commission, which will seriously limit the Commission’s independence.
General Comments on Bill
Generally, the Bill provides a workable framework for the Commission to start its operations. The Commission is given wide scope to determine its priorities and how it should treat each particular class of media. The preamble to the Bill emphasises freedom of expression, and that emphasis is repeated in clause 4(1)(b) which enjoins the Commission to support and entrench human rights and democracy. This in itself cannot prevent the Commission from trying to stifle the media through over-regulation, but at least it points the Commission in the right direction.
Whether the Commission will promote or suppress freedom of expression, indeed, will depend not so much on the Bill as on the commissioners themselves. We hope they will live up to their task.
