MISA- Zimbabwe submissions on the proposed
Public Access to Information and Protection of Privacy Bill

1. Executive Summary

The Media Institute of Southern Africa-Zimbabwe Chapter (MISA-Zimbabwe) welcomes the fact that the government of Zimbabwe is drafting a Public Access to Information and Protection of Privacy Bill.

We make these submissions on the basis and belief that the concerns of media practitioners and all other stakeholders including the general public would be taken into consideration in this Bill.

These submissions are based on an analysis of the existing laws in Zimbabwe and the wide consultations that we did with journalists in Zimbabwe, civic organisations and members of the public. MISA-Zimbabwe is a member-driven organisation and our membership, made up of, mostly, media people and organisations have made known their concerns on the F.o.I and Protection of Privacy Bill. Such concerns are summarised in these submissions. MISA-Zimbabwe has held a number of workshops and public meetings, at which media issues have been discussed and recommendations made. MISA-Zimbabwe also holds discussion forums on a bi-monthly basis and four such meetings have been held in Bulawayo and Harare in 2001. We therefore hope that the government would see it necessary and as a process of nation building to equally consult widely with media houses, journalists, civic organisations and the general public on the F.o.I and Protection of Privacy Bill. We propose that these consultations be done through extensive and inclusive public hearings, which must include all stakeholders.

We take note of the fact that this Bill is historic in as far as it seeks to open and enhance the flow of information from public and private bodies to the people of Zimbabwe and spell out in clear terms the exemptions that can possibly be allowed in a democratic country.

The Freedom of Information (F.o.I) and Protection of Privacy Bill, is enacted on the premise that everyone in society has a right to receive and access information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights and to set out in narrowly defined terms the exemptions that should exist in the interests of the state security and public order. The need-to-know standard has been replaced by the right-to-know in all participatory democracies world-wide. Principally any progressive media law is supposed to aid and not impinge on the operations of media. The existing media laws, many inherited from the colonial Rhodesia regime, encourage secrecy and an unresponsive culture in private and public bodies.

The concept of a free press is premised on the notion that the ultimate objective of a free media is to provide a healthy check on centres of power (public and private) in order to maintain a free and enlightened society. People usually talk of a free press in line with democracy meaning that free press is the cornerstone of democracy. In democratic societies or societies that aspire to be democratic, actions of government, which is only the trustee of the collective will of the people, are expected to be regulated by the force of public opinion. The media is an important tool for gauging and reflecting public opinion. The important task of informing the public cannot be entrusted to the governors and the powerful themselves for they will only tell the people what the governors and the powerful want the latter to know.

We hope this information would be of interests to the Department of Information and Publicity and all relevant organs of the government of Zimbabwe.

2. Constitutional Provision for Freedom of the press

· We propose that the F.o.I and Protection of Privacy Bill need to come up with an express guarantee for freedom of the media as a constitutional provision adding on to section 20.

· Section 20 of the Zimbabwean Constitution remains inadequate and vague by itself, in terms of protecting journalists and media houses from unfounded/ unwarranted harassment. The critical shortfall in the constitution is the absence of an express provision in the document guaranteeing freedom of the media.

· The freedom of the media implied in section 20, which states that every person has a right to freedom of expression. It is viewed as the freedom to hold opinions, to receive and impart information without interference. Therefore the freedom of the individual is implied to extend to the freedom of the press. This is an unfortunate clause as in many countries the constitution regards the media as a separate body from individuals. For example the South African and the Namibian constitutions have recognised and provide for that separate provision.

· Section 20 (2), however, quickly goes on to circumscribe what ever is provided in Sec 20. The manner in which it is done is so wide that it surpasses the internationally approved standards. For example the International Convention on Civic and Political Rights (ICCPR), recognises that the freedom can be restricted for the purposes of:
(i) For respect of the rights or reputations of others;
(ii) For the protection of national security or of public order or of public health or morals.

· The constitution as supreme law of this country would be much better if the right to media freedom had been recognised as an essential ingredient for promoting a pluralistic society. Regional examples of constitutions that guarantee the freedom of expression and that of the media include those of Zambia, Malawi and South Africa.
The Zambian constitution Article 20 says that:

“ Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference. Whether the communication is to the public, generally or to any person or class of persons and freedom of interference with correspondence.”

“ Subject to the provisions of this constitution no law shall make any provisions that derogates from freedom of the press.”

The constitutions of Malawi and South Africa provide the most comprehensive protection for the right to access information.

Article 37 of the constitution of Malawi states that:
“Subject to any act of parliament, every person shall have the right of access to all information held by the state or any of its organs at any level of government in so far as the information is required for the exercise of his right,”
Article 32 (1) of the South Africa constitution states that everyone has the right to access any information held by the state.

· It is our submission that our constitution follows the example of other countries in the region, by expressingly guaranteeing press freedom as a constitutional provision.

3) Harmonising Zimbabwe’s media laws with international Conventions.

· We propose that the F.o.I and Protection of Privacy Bill be harmonised with the international conventions that Zimbabwe is signatory to .

· These treaties have not become law because they have not been incorporated into law through an Act of Parliament.

· We take note that the Supreme Court (Dumbutshena court) was active in its use of international law and conventions as aids in interpreting ambiguous statutes. The Supreme Court held that the common law, where it is uncertain, should be interpreted to be consistent with human rights treaties even if these have not been incorporated into national law . The Bill must therefore incorporate the conventions as part of Zimbabwe’s law.

· It is important to note that a democratic F.o.I and Protection of Privacy Bill has to meet certain international standards in terms of the international conventions that Zimbabwe is signatory to. The concept of a free press usually informs media laws all over the world.

4. Existing laws that affect the media

(a) The Law and Order (Maintenance)(LOMA) Act 1960.

· We propose that the LOMA be struck off from the statute books. LOMA is an embarrassing example of the legal mental colonial hangover that Zimbabwe must shed off.

· The statute, enacted in 1960 at the height of the intense African liberation struggle, was meant to curtail the rapid progress of the liberation struggle. It was meant to act as a counter to the 1961 liberal constitution that contained a Bill of Rights that threatened the then status quo that was overtly undemocratic. We equally take note that LOMA is now mutilated because of a number of judgements that have gone against some of its sections such as section 50 (2) . The Supreme Court ruled in the Mark Chavunduka and Ray Choto Vs the State Case that the section is inconsistent with Section 20 of the Zimbabwe constitution .

· We also take note that Section 44 of the Act makes it criminal to publish “ any statement likely to bring the president into hatred or contempt or excite disaffection for him; the constitution and the government”. This clause is by all standards openly worded. It does, to a large extent, ignore the fact that all the stated institutions are public and their office bearers can’t escape the vigilant eyes of the press. If the Executive is failing to satisfy its subjects, e.g. by delivering economic prosperity then the media has to reflect that without being unnecessarily taken to task about that.

· Section 49 makes it a criminal offence for a person to make statements likely to cause “fear alarm or despondency.” What can reasonably be called alarm and despondency is difficult to qualify and quantify. It is equally difficult to determine who would measure this “alarm and despondency” and also by what standards.

(b). The Official Secrets Act (1970)

· We propose that this section be struck off from the statute books and in its place, narrowly defined and qualified exemptions that can reasonably be allowed in a democratic society be put in place.

· The Act is key to the accessing of information from Government Departments and it makes it an offence to disclose information to the press, which is specified (section 4). It is a criminal offence to give information when one is not authorised to do so.

· Besides being a colonial product (1970), the provisions of the act are so wide in scope. According to the Act the disclosure of the most trivial information without permission is a violation of the Act.

· The Official Secrets Act has therefore created a wall against government authorities. It has also created an ignorant clique of public officials who hide behind the Act wherever it is in the public interest to know the conduct of government business, which affects them.

· Access to information would enable journalists to dig deeper while remaining on side of the law, not appearing to be above the law. It would be prudent for the Act to be struck off so that information is made available to journalists without unnecessary impediments. Such laws as the Defence, Police and Prisons Acts work along the same lines as the Official Secrets Act in denying the media access to information.

· The ideal situation is for the state to operate outside the confines of secrecy. South Africa has made great strides through the Promotion of Access to Information Act which clearly spell out that journalists shall have a right to access information that is held by public bodies or private bodies that deal with public life.

· The Ugandan constitution has a specific guarantee of the right to access public information. Article 41 states that,
“Every citizen has a right of access to the information in possession of the state or any other organ or agency of the state except to the extent that the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to the privacy of any other person.

· Zimbabwe is a signatory to the Windhoek Declaration of 1991, Article 9 of which states that,
“African states should be encouraged to provide constitutional guarantees of freedom of the press and freedom of association and expression”.

( c). Privileges, Immunities and Powers of Parliament Act Privileges (Chapter 10)

· We propose that Parliament as the central nervous system of any democracy in the world, be exposed to the media as much as possible, by the repeal of some sections of the Act.

· The current Act protects the House from the press. It gives the Speaker of Parliament the discretion to accredit and expel or throw out journalists from the House.

· The Act also empowers the house to constitute itself into a court of law and prosecute offenders . This is certainly injurious to journalists when they refuse to testify before them (House) or to reveal their sources of information.

· The Act therefore allows the House to be the judge in a matter in which it is an interested party as the complainant. This goes against all the dictates of natural justice. Similarly parliamentarians can just hide behind parliamentary privileges or immunities.

· The act should therefore recognise the importance of the media in reporting on what will be transpiring in the House so that the public can know what the people they mandated to represent them will be doing in the House.

(d). The Law of Defamation
· We propose that customary non-criminal laws against libel and slander, which are available to the general public, be used even by public officials who have resorted to filing criminal defamation charges against journalists and media houses.

· It is desirable that the state should not take defamation cases on behalf of individual public officials. In any democracy, public officials deserve less, not more, protection from reporting and commentary than ordinary citizens do.

· The F.o.I and Protection of Privacy Bill must make it a defence for the media to publish something even if it is defamatory, but in the public interest to do so. Usually public interest refers to the smooth and accountable running of the government and corporations/enterprises that affect the lives of people be it the public or private bodies. It is however broader than that as it also must be seen to be working towards the attainment of peace and justice in any given society.

· There is no need for special laws to protect the reputation, dignity and honour of public figures The use of criminal defamation (insult laws), to protect public figures gives them protection that is not available to other members of society because they end up claiming undue and unnecessary protection to escape from heinous deeds. Having sought public office, public officials are servants of the people not its masters and must be exposed if they violate anything of interest to the public. Insult laws such as defamation laws make it a crime to offend the honour and dignity of public officials, state offices and national institutions. Often the leaders determine the instances they feel ‘insulted’ or ‘offended’. Criminal defamation laws therefore establish criminal sanctions for slander (oral defamation), and libel (written defamation.) The two are defended as necessary to prevent abuses of the freedom of expression. However the real abuse occur as government officials and powerful people in the private sector use such laws to punish their critics and cover wrongdoing

· This distinction violates the fundamental principles in a democratic system that holds the government subject to controls. Criminal defamation has therefore been used to stifle the kind of reporting or commentary about claimed officials’ misconduct or corruption. Such laws serve to silence the society as a whole. The shielding of public officials from scrutiny violates the notion of transparency and accountability, which must underline the conduct of all state business.

· There are many defamation cases that have been brought before our courts of law. The striking feature about these suits, in Zimbabwe, is that public officials instituted most of them .

· The aim of the defamation cases is to punish offenders by imprisonment. The presumption is that one can also offend the society apart from an individual. It is unfortunate that defamation law in Zimbabwe is heavily in favour of private individuals than the public’s right to know. This is so because the idea that the statement was defamatory attracts a penalty despite the fact that one might have been made in the pubic interest and not to excite the same public.

· We propose that the Bill should therefore guarantee that information that is obtained by the media in confidence be treated as such. This implies that there be such protection of people who give information to the media with the motive of public interest. This means people who give out information but still want to remain anonymous for fear of reprisals from those who would be affected by such disclosure. The important thing is that such information, if disclosed, will serve the public by either exposing scandals or other deals that are likely to prejudice the general populace

(e). Protected Areas Act

· We propose that the Act should be phrased in a manner that qualifies some terms so that it cannot be abused by being applied rigidly.

· There should be mechanisms that must be used by journalists for recourse when they feel they have been rightly refused access to information in some places that was essential for the execution of their professional duties.

· Journalists from all sections of the media, that is public and private must be accorded the same treatment when it comes to visiting and accessing government buildings be it for press conferences or other functions that are of interest to the general public.

· The Protected Areas Act has one major weakness when it comes to dealing with the media. The Act, as its name implies, is meant to deal with certain protected areas in our country. However the Act can be used as a tool for denying the media very essential information that can be used to inform the public.

5. Accreditation of Journalists

· We submit that the government has no role to play in deciding who may practice as a journalist. Journalism is not a profession like medicine or law, where the public needs to be protected from unqualified or unscrupulous practitioners. It is rather a trade or craft which requires a variety of different skills, depending on the position accepted .

· Governments licencing of journalists, that is, when government decide who may or may not practice as a journalists amounts to giving governments the power to choose who may work for the media rather than the media houses themselves choosing. This is a violation of editorial independence, which is in turn one of the bedrock of media freedom.

· It may be argued that setting out minimum qualifications for the practice of journalism will protect the public from consequences of unscrupulous, unprofessional or inaccurate reporting, Yet, there are already numerous remedies and penalties for such behaviour. If someone poses as a journalist for financial gain, then he or she may be guilty of fraud or extortion. If a journalist wilfully or recklessly writes inaccurate reports, he or she maybe sued for defamation. Arguably there are already too many laws in this area. It is unclear why more would be wanted.

· The government argument that it wants to encourage foreign media houses and news agencies to recruit Zimbabwean journalists is a noble idea. This however does not justify the means of interfering with the editorial independence of these organisations.

· There is nothing objectionable in principle about government running some sort of accreditation system. This is necessary for foreign correspondents, since they have to fulfil certain immigration requirements. However, the holding of a temporary employment permit should never depend upon the contents of a journalist’s report, or indeed upon his or her professional competence.

· Accreditation is essentially a practical device to allow journalists to have some form of generally accepted identification to allow them to go about their work. This is used when covering public events such as elections, rallies, demonstrations or court proceedings. Other public bodies, such as Parliament, may need to limit numbers of journalists from each news organisation and may therefore operate their own accreditation system, In neither case, however, should the accrediting authority have any discretion to refuse accreditation to a bona fide media house.

· An official accreditation system is not strictly necessary if there is a generally accepted alternative. A press card issued by the journalists union can be an acceptable accreditation for public events, while bodies such as Parliament or the Electoral Commission may issue specialised accreditation.

· In the absence of a generally accepted alternative method of accreditation, the existing system operated by the former Ministry of Information worked effectively. In general, it has functioned as a means of giving journalists the identification necessary to allow them to go about their work.

6. Self Regulation

· We submit that the government and the public support self-regulatory mechanisms and measures that are being taken by journalists in Zimbabwe .

· We take note of the fact that journalists in Zimbabwe have come together and have decided to set up a voluntary Media Complaints Council (MCC) to regulate their profession.

7. Exemptions and Restrictions

· We take note that the right to freedom of information is not absolute. Restrictions on F.o.I and expression must take into account some overriding interests. Exemptions should be narrowly drawn so as to avoid including materials, which does not harm the legitimate national and individual interests.

· We propose that exemptions be based on the content, rather than the type of the document and also that exemptions should, where relevant, be time limited e.g. the justification for classifying information on the basis of national security may well disappear after a specific national security threat disappears or subsides. Classified documents or information must be reviewed to determine if they still require protection. Disclosure might appear harmful but might as well be beneficial in the long run e.g. a report of corruption in the army might be harmful in the interim but beneficial in the long run as the army would be run more efficiently.

· We submit that not all information that is held by public or private bodies must be made available, especially in terms of protecting the privacy of individuals, trade secrets, minors and genuine security concerns and protection of the public morality. When a record/document contains some information that qualifies as exempt, the entire record is not necessarily exempt. Instead the F.o.I and Protection of Privacy Bill must specifically provide that any reasonably segregable portions of a record must be provided to a requester after the deleting of the portions that are exempt. This will prevent public and private bodies from withholding an entire document simply because one sentence or page is exempt.

· We propose that all requests for information from public bodies must be met unless the public body can show that the information requested falls within the scope of the limited regime of exemptions A refusal to give requested information must meet a strict, three-part, test that is:

# The information must relate to a legitimate aim listed in the law.
# Disclosure must threaten to cause substantial harm to that aim.
# The harm to that aim must be greater than the public interest.

· We take note that Section 20 of the Zimbabwean constitution has a long catalogue of limitations. Whilst it contains the standard qualification that the restrictions are permissible only if they do not exceed what is reasonably justifiable in democratic society, this is put in the negative:
“Except so far as that provision or as the case maybe, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.” The Zimbabwe Constitution therefore permits a wider scope of restrictions.

· We propose that access to information must be refused if the disclosure of that information would reasonably be expected to endanger the life or physical safety of an individual or likely to prejudice or impair the security of an individual, building structure or system, a means of transport or any other property. Information held by the police must only be inaccessible if it is proven that such release would prejudice investigations. Information about the general conditions of those held by the police cannot, however, be justifiably denied.

· We propose that under the protection of minors, information relating to the physical and mental health or well being of an individual who is under 18 years and who cannot understand the nature of the request, cannot be granted.

· Restrictions whose aim is to protect the government from embarrassment or the exposure of wrongdoing can never be justified. The history of the apartheid system in South Africa shows that the suppression of information is one of the bases of repressive regimes.

8.Investment in the Media.

· We propose that the general investment laws of Zimbabwe must apply to the media.

· We also propose that foreign investment in the media be allowed as long as there is a balanced shareholding with a local investor. This would allow Zimbabwe to benefit from the developments in the media technology that is taking place worldwide.

9, How the F.o.I and Protection of Privacy Bill must be applied

· We propose that the Act also provide for the setting up of an impartial body/ authority, empowered to over see and supervise the implementation of the Act. This authority must be responsible for the implementation of the Act. The authority must be in a position to command public respect. It must also maintain some independence from political, economic and other social factors. In the case of Zimbabwe it might be a commission established in the Act to ensure that the Act is implemented to the dot.

· Compilation and Documentation of Information
The Act should be very clear on who should be responsible for compiling information that is required by potential users. It must be the duty of every public body to clearly show, in written form of verbally, how information can be accessed from their organisations. This is also possible for bodies that are not public but deal directly or indirectly with the exercise of the people’s rights. The information can be stored in through tape film CD-ROMs and any other form that information may be stored.

· Cost of Accessing Information
We submit that the act should be clear on the cost of accessing information from public bodies and private bodies. The underlying value is to make it less expensive to obtain information from private and public bodies. This is so because costly extraction of information will act as a deterrent to the public’s right to access that information. There should be classification of the potential users. For example commercial users of public information should probably subsidise the general and poor public. However mechanisms should be worked out to achieve a better balance between the need to make information available to the public and stopping the process from draining the public fiscus.

· Time Frame
The Act should set out the time limit in which one should reasonably expect a request for information to be met. The legal instrument should set out the time one should have a request processed, depending on the type of information required. There should be set up procedures for classifying and documenting information and adequate reasons must be given why access information has been refused.

We hope that the Department would see it prudent to take these submissions aboard the F.o.I and Protection of Privacy Bill.
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