The Access to Information and Privacy Bill, 2001 (Media Bill) is currently being considered by the Zimbabwean Parliament. Passage of this Bill, which is part of a series of restrictive measures proposed by the Government, was recently delayed when the parliamentary legal committee failed to report on it in advance of the second reading, as required by the Constitution of Zimbabwe. This Bill, if passed into law, would severely restrict freedom of expression in Zimbabwe. The timing of the Media Bill, just prior to the presidential elections scheduled for March of this year, makes ARTICLE 19’s concerns about it all the more poignant, given the crucial importance of freedom of expression to free and fair elections. As the name of the Media Bill implies, it does formally establish a right to access information held by public bodies, something ARTICLE 19 welcomes.
However, this right is so limited by exclusions and exceptions that its practical impact is likely to be extremely limited. The Media Bill does also impose limits on the collection of personal information by public bodies and the uses to which such bodies may put this information, again something we welcome. However, the bulk of the provisions in the Media Bill have nothing to do with access to information or privacy. Instead, they impose a range of harsh restrictions on media freedom. This gives the impression that the name and information/privacy provisions have been included simply to draw attention away from the real import of the Media Bill. Key problems with the Media Bill are as follows:
the exceptions and exclusions to the right to information are so comprehensive as to effectively negate the right; all media outlets and any business disseminating media products or even video or audio recordings must obtain a registration certificate from a government controlled body; all individual journalists must also obtain accreditation from the same body; all foreign ownership of the media is prohibited and no non-citizen may work as a journalist; and excessive restrictions are imposed on the content of what the media may publish or broadcast. This Memorandum analyses the Access to Information and Protection of Privacy Bill, setting out ARTICLE 19’s main concerns, along with recommendations as to how to address them. Our concerns are grouped into five main categories. First, the provisions on freedom of information are seriously undermined by an extensive regime of exclusions and exceptions.
Second, the Media Bill allocates broad regulatory powers to an Information and Media Commission but this body is firmly under the control of the Minister responsible for information. Third, all media outlets, as well as those who disseminate information, including through video and audio cassettes, are required obtain a registration certificate from the Commission. Fourth, conditions are placed on who may practise journalism and all journalists are required to obtain accreditation from the Commission. Fifth, the law imposes strict restrictions on media content, including by reintroducing provisions which were recently struck down as unconstitutional by the Supreme Court of Zimbabwe.
International and Constitutional Standards
International Guarantees of Freedom of Expression
The Universal Declaration of Human Rights (UDHR) is generally considered to be the flagship statement of international human rights, binding on all states as a matter of customary international law. Article 19 of the UDHR guarantees the right to freedom of expression and information in the following terms: Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty which Zimbabwe ratified in 1991, guarantees the right to freedom of opinion and expression in very similar terms to the UDHR, also in Article 19. Zimbabwe is also a party to the African Charter on Human and Peoples’ Rights, which guarantees freedom of expression at Article 9. These guarantees allow for some restrictions on freedom of expression and
information but only where these are prescribed by law, pursue a legitimate aim and are necessary in a democratic society to protect that aim.
Article 20(1) of the Zimbabwean Constitution guarantees freedom of expression in the following terms: Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.
As under international law, the Constitution does permit some restrictions on freedom of expression, but only where such restrictions are “reasonably justifiable in a democratic society”
The Importance of Freedom of Expression
International bodies and courts have made it very clear that freedom of expression and information is one of the most important human rights. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which states: Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.
As this resolution notes, freedom of expression is both fundamentally important in its own right and also key to the fulfilment of all other rights. It is only in societies where the free flow of information and ideas is permitted that democracy can flourish. In addition, freedom of expression is essential if violations of human rights are to be exposed and challenged. The importance of freedom of expression in a democracy has been stressed by a number of international courts. For example, the African Commission on Human and People’s Rights has held: Freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of public affairs in his country.
Similarly, the Inter-American Court of Human Rights stated:
Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. … [I]t can be said that a society that is not well informed is not a society that is truly free.
This has repeatedly been affirmed by both the UN Human Rights Committee and the European Court of Human Rights. 1 Constitutional Rights Project and Media Rights Agenda v. Nigeria, 31 October 1998, Communications 105/93, 130/94, 128/94 and 152/96, para. 52. 2 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, 13 November 1985, Series A, No. 5, para. 70.
The fact that the right to freedom of expression exists to protect controversial expression as well as conventional statements is well established. For example, in a recent case the European Court of Human Rights stated that: According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.
These statements emphasise that freedom of expression is both a fundamental human right and also key to democracy, which can flourish only in societies where information and ideas flow freely.
The guarantee of freedom of expression applies with particular force to the media, including the broadcast media and the Internet. As the Inter-American Court of Human Rights has stated: “It is the mass media that make the exercise of freedom of expression a reality.”4 Because of their pivotal role in informing the public, the media as a whole merit special protection. As the European Court of Human Rights has held: [I]t is … incumbent on [the press] to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.
This applies particularly to information which, although critical, is important to the public interest: The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest [footnote deleted]. In addition, the court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.
This has been recognised by the constitutional courts of individual states around the world. For example, the Supreme Court of South Africa has recently held: Nilsen and Johnsen v. Norway, 25 November 1999, Application No. 23118/93, para. 43. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, op cit., para. 34. 5 Thorgeirson v. Iceland, 25 June 1992, Application No. 13778/88, para. 63. 6 Fressoz and Roire v. France, 21 January 1999, Application No. 29183/95 (European Court of Human Rights).
The role of the press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest maland inept administration. It must also contribute to the exchange of ideas already alluded to. It must advance communication between the governed and those who govern. The press must act as the watchdog of the governed.
Restrictions on Freedom of Expression
The right to freedom of expression is not absolute. Both international law and most national constitutions recognise that freedom of expression may be restricted. However, any limitations must remain within strictly defined parameters. Article 19(3) of the International Covenant on Civil and Political Rights lays down the benchmark, stating: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
It is a maxim of human rights jurisprudence that restrictions on rights must always be construed narrowly; this is especially true of the right to freedom of expression in light of its importance in democratic society. Accordingly, any restriction on the right to freedom of expression must meet a strict three-part test, approved by both the Human Rights Committee8 and the European Court of Human Rights.9 This test requires that any restriction must a) be provided by law; b) be for the purpose of safeguarding a legitimate public interest; and c) be necessary to secure that interest.
The third part of this test means that even measures which seek to protect a legitimate interest must meet the requisite standard established by the term “necessity”. Although absolute necessity is not required, a “pressing social need” must be demonstrated, the restriction must be proportionate to the legitimate aim pursued, and the reasons given to justify the restriction must be relevant and sufficient.10 In other words, the government, in protecting legitimate interests, must restrict freedom of expression as little as possible. Vague or broadly defined restrictions, even if they satisfy the “provided by law” criterion, will generally be unacceptable because they go beyond what is strictly required to protect the legitimate interest.
The Freedom of Information Regime
Government of the Republic of South Africa v. the Sunday Times,  1 LRC 168, pp. 175-6. See, for example, Mukong v. Cameroon, 21 July 1994, Communication No. 458/1991, para. 9.7. 9 See, for example, Goodwin v. United Kingdom, 27 March 1996, Application No. 17488/90, paras. 2837. 10 Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para. 62 (European Court of Human Rights). These standards have been reiterated in a large number of cases.
The Media Bill establishes a general right to access information held by public bodies (section 5). ARTICLE 19 has long advocated in favour of legislative protection for the right to information and, to that extent, welcomes this development. However, the regime of exceptions is so comprehensive as to render any right to information largely illusory. Furthermore, review of refusals to disclose information are heard by the Information and Media Commission, a body controlled by the government, rather than by an independent body. Several provisions in the Media Bill provide for exceptions.
The First Schedule lists a number of bodies to which the Act does not apply (pursuant to section 4). These include, among others, records held by officers of Parliament which relate to their functions, records of an elected local official which are not held by the local body and any record relating to the exercise of the functions of the President. Indeed, the First Schedule formally excludes from the operation of the Act any record which “has no bearing on the election campaign itself”, thereby restricting the scope of the Act in this regard to the election period, although it is possible that this is a drafting error. Section 9(4)(c) provides that public bodies do not have to provide information where granting access “is in the public interest”. This again is presumably a drafting error, with the word “not” missing from this phrase. Sections 15 – 26 provide for a comprehensive regime of exceptions from the duty to disclose information.
Exceptions include all cabinet documents, including draft legislation, advice or recommendations provided to public bodies (with some exceptions) and information whose disclosure would “affect” relations between different levels of government or which may result in harm to the economic interest of the public body. Pursuant to section 5, non-citizens and any mass media outlet which is not registered do not have any rights under the Act. The Media and Information Commission is responsible for reviewing, upon request, any refusal to grant access to information (sections 9(3) and Part X). ARTICLE 19 is of the view that the right to access information held by public bodies is part of the general right to freedom of expression, which includes the right to seek and receive information.
We therefore welcome any moves to provide for this right in national legislation. However, the right to information as provided for in this Bill is so thoroughly undermined by the very broad regime of exclusions and exceptions, as described briefly above, as to render the right essentially nugatory. A detailed analysis of the regime of exceptions and exclusions is not provided in this Memorandum; instead, a general critique is made. Exceptions are only legitimate according to international standards if they meet a strict three-part test as follows: • the information must relate to a legitimate interest clearly defined in the law; • disclosure must threaten to cause substantial harm to that interest; and • the harm to the aim must be greater than the public interest in having the information (in other words, the law must provide for a public interest override).