Open Society Initiative of Southern Africa (OSISA)

The Media Institute of Souther Africa (MISA)-Zimbabwe has welcomed the first draft of the new Zimbabwean Constitution because it explicitly guarantees not only media freedom and access to information, but also protects journalists and their sources of information. MISA believes that the draft Bill of Rights captures the ingredients necessary for the flourishing of independent, diverse and pluralistic media - and is a vast improvement on the current constitution, which does not explicitly provide for freedom of the media and access to information.

However, MISA is concerned about Section 13.15 of the draft, which provides for the establishment of a Media Commission and involves concepts that are clearly contrary to the spirit and letter of media freedom and access to information. The commission, for example, retains the powers to “take disciplinary action against journalists and other persons employed in the press news media or broadcasting who are found to have breached the law or any code of conduct applicable to them.” In a democracy, the duty of a media regulator is not to ‘discipline’ journalists or media houses but to secure an environment that promotes free media activity. In addition, the section seeks to entrench statutory regulation while at the same time recognising the need for self-regulation. The Commission, itself a statutory body, is given the powers to “encourage self-regulation of the press and other media communication, in preference to control by the state or any agency of the state.” This leaves the principle of self-regulation at the discretion of the Commission instead of guaranteeing it as a fundamental ingredient for nurturing media freedom as stipulated by the Banjul Declaration on the Principles of Freedom of Expression in Africa and other regional and international instruments on freedom of expression.

MISA argues that the provision of self regulation should be captured under the Bill of Rights rather than as a privilege of the commission.    "In our humble opinion, the state has no business regulating the print media," said the MISA statement. "Best practice in the region and the world over is that the media have professional mechanisms forregulating themselves. If the media commission is to be established, then it should be for the sole purpose of regulating the broadcasting sector’s finite frequency spectrum".

Clauses on freedom of the media and access to information in the draft constitution:

4.11 Freedom of Expression and Freedom of the media

1.      Everyone has the right to freedom of expression, which includesa)      Freedom to seek receive and communicate ideas and other information regardless of frontiers;b)      Freedom of artistic expression and scientific research and creativity; andc)      Freedom of the press and other media communication

2.      Freedom of the press and other media of communication includes protection of the confidentiality of journalists’ sources of information

3.      The state shall nota)      Exercise control over or interfere with anyone engaged in broadcasting, the production or circulation of any publication or dissemination of information by any medium; orb)      Penalise anyone for any opinion or view or content of any broadcast, publication or dissemination

4.      Broadcasting and other electronic media of communication have freedom to establishment, subject only to licensing procedures that:a)      Are necessary to regulate airwaves and other forms of signal distribution; andb)      Are independent of control by government or by political or commercial interests.

5.      All state media of communication shall:a)      Be free to determine independently the editorial content of their broadcasts or other communicationb)      Be impartial; andc)      Afford fair opportunity for presentation of divergent views and dissenting opinions

6.      Freedom of expression does not include:a)      Incitement to violence; orb)      Advocacy of hatred which is based on nationality, race, colour, tribe, birth, or place of birth, ethnic or social origin, language, class, religious belief, political or other opinion, custom, culture, sex, gender, marital status, age, disability or natural difference or condition, and which amounts to discrimination or hostility

4.12      Access to information

1.         Everyone, including the press and other media of communication, has the right to access to-a)      Any information held by the state;  andb)      Information held by anyone else in so far as that information is required for the exercise or protection of any person’s rights under this constitution or any other law.