REPORTABLE
(118)
Judgment
No S.C.136\02
Const.
Application No 252\02
(1)
ASSOCIATION OF INDEPENDENT JOURNALISTS (2) ABEL
TICHARWA MUTSAKANI (3) VINCENT KAHIYA v (1)
THE
MINISTER OF STATE FOR INFORMATION AND PUBLICITY
IN THE PRESIDENTS OFFICE (2) MEDIA
AND
INFORMATION COMMISSION (3) THE ATTORNEY-GENERAL OF
ZIMBABWE
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA, CHEDA JA, ZIYAMBI JA & MALABA JA
HARARE
NOVEMBER 21, 2002 & FEBRUARY 5, 2004
S.
Moyo,
with him M.K.
Chikuni,
for the applicants
J.
Tomana,
for the first respondent
No
appearance for the second respondent
N.
Mutsonziwa,
for the third respondent
CHIDYAUSIKU
CJ: The first applicant in this case is the Independent
Journalists Association of Zimbabwe, a body corporate with
a capacity
to sue and be sued in its own name with a current membership of sixty
journalists. The second applicant is a News Editor
employed by
Financial Gazette (Private) Limited. The third applicant is a News
Editor employed as such by Zimind Publishers (Private)
Limited.
The
first respondent is the Minister of State for Information and
Publicity in the Presidents Office who is responsible for the
administration of the Access to Information and Protection of Privacy
Act [Chapter 10:27],
hereinafter referred to as the Act. The second respondent is
the Media and Information Commission, a body corporate established
in
terms of s 38 of the Act, hereinafter referred to as the
Commission. The third respondent is the Attorney-General of
Zimbabwe
who is cited in terms of s 24 of the Constitution of
Zimbabwe.
The
applicants made this application in terms of s 24 of the Constitution
which entitles an applicant to approach this Court, sitting
as a
Constitutional Court, on an allegation that the Declaration of Rights
in the Constitution of Zimbabwe has been, is being, or
is likely to
be contravened in relation to him or it.
In
particular, the applicants alleged that sections 79, 80, 83 and 85 of
the Act violate the rights of the first applicants members
and
those of the second and third applicants under s 20(1) of the
Constitution of Zimbabwe, that is to say, the right to receive
and
impart information and ideas without hindrance or interference. The
applicants further alleged that s 79 is unconstitutional
as it
contravenes s 18(9) of the Constitution in that it deprives them of
the right to be heard before a decision affecting their
rights is
made. The relief sought is that s 79, 80, 83 and 85 be declared
unconstitutional, therefore, null and void and of no
effect.
The
respondents contend otherwise and argue that the above provisions are
intra
vires
the Constitution and, therefore, valid and of full force and effect.
Section
79 of the Act provides for the accreditation of journalists while s
80 criminalises certain abuses of journalistic privileges.
Section 83 outlaws the practice of journalism without
accreditation. Section 85 provides for the development of a Code of
Conduct by the Commission in consultation with interested parties.
That section also confers on the Commission disciplinary powers
and
provides guidelines on sanctions for misconduct. The above four
sections are the only sections of the Act that the applicants
seek to
have set aside as unconstitutional.
A number of
issues raised in this case were also raised in the case of Capital
Radio v The Broadcasting Authority of Zimbabwe and Ors.
Judgment in that matter was recently handed down and some of the
issues herein were determined therein. There is no need for
me to
deal in any detail with the issues raised in this case that were
determined in that judgment. Thus the Court concluded in
the
Capital
Radio
case, supra,
that freedom of expression as enshrined in s 20 of the Constitution
includes freedom of the press. The respondent raises the
same
issue in this case. I am satisfied that s 20 of the Constitution
subsumes freedom of the press. I come to that conclusion
on the
same reasoning that is set out in the Capital
Radio case,
supra.
This Court
also concluded in the Capital
Radio case,
supra,
that it was constitutionally permissible to enact laws that regulate
the licensing and the functioning of the media or press but
such
enactments had to be within the limits that are constitutionally
permissible. In arriving at that conclusion the Court relied
on a
number of authorities.
The authorities relied on in arriving at the above conclusion
specifically relate to the electronic media as opposed to the print
media. While I accept that the constitutionality of a particular
impugned enactment differs from case to case it has to pass the
laid
down test
I see no basis in principle for holding that it is constitutionally
permissible to regulate by statute the electronic media but not
the
print media. The constitutionality of each statutory enactment
depends on the wording and effect of the particular enactment.
No
doubt the question of whether the impugned provision regulates the
electronic media or the print media is a very relevant factor
in the
determination of the constitutionality or otherwise of the particular
impugned enactment. In this regard, I do not accept
Mr Moyos
submission that the practice of journalism is special and admits no
statutory regulation and that only self regulation is constitutional.
In arguing
that the regulation of journalism by statute is unconstitutional and
that the only regulation of journalism that is constitutional
is self
regulation, Mr Moyo
relied on the Advisory Opinion of the Inter-American Court of Human
Rights.
SANDURA JA in his judgment has placed reliance on that case for
certain of his conclusions. I wish to comment in some detail
on the
Opinion.
The facts of
that case are briefly as follows. In terms of Law No. 4420 of
Costa Rica, an individual could not practise
journalism in
Costa Rica unless he was a member of the Coligio. In other
words, it was unlawful to practise journalism without
being first a
member of the Coligio. The holding of a Licenciate Bachelor Degree
in Journalism, or graduation from the University
of Costa Rica,
was a requirement, among others, for membership of the Coligio.
A Mr Schmidt was charged with and convicted of practising
journalism without being a member of the Coligio in contravention
of
Law No. 4420. He was convicted and sentenced to three months'
imprisonment. The conviction was challenged on the basis
that Law
No. 4420 was unconstitutional. In particular, it was contended
that Law No. 4420 of Costa Rica contravened
Articles 13 and
29 of the Inter-American Convention on Human Rights the
Convention. It was common cause that if Law No. 4420
contravened the Convention it was unconstitutional, because
Costa Rican law was required to conform with the Convention.
The
Costa Rican Supreme Court concluded that Law No. 4420 was
constitutional and the Inter-American Commission for Human
Rights
came to the same conclusion. However, the Inter-American Court of
Human Rights came to a different conclusion. That court
concluded
1. That the
compulsory licensing of journalists was incompatible with Article 13
of the Inter-American Convention on Human Rights
if it denied any
person access to the full use of the news media as
a means
of expressing opinions or imparting information; and
2. That Law
No. 4420 of September 22, 1969, Organic Law of the Association
of Journalists of Costa Rica, the subject of
the instant
Advisory Opinion requested, was incompatible with Article 13 of
the Inter-American Convention on Human Rights, in
that it prevented
certain persons from joining the Association of Journalists and,
consequently, denied them the full use of the
mass media as
a means
of expressing themselves or imparting information (the underlining is
mine).
I agree with
the interpretation ascribed to Article 13 of the Convention by
the Inter-American Court of Human Rights. I do
not, however, agree
with Mr Moyos
contention that the same interpretation be ascribed to s 20 of
the Constitution of Zimbabwe.
The
wording of Article 13 of the Convention differs from the wording
of s 20 of the Constitution in certain material respects.
Article 13 (1) and (2) of the Convention provides as follows:
1. Everyone
has the right to freedom of the right of expression. This right
includes freedom to seek, receive and impart information
and ideas of
all kinds, regardless of frontiers either orally, in writing, in
print, in the form of art or through
any other media of ones choice.
2. The
exercise of the right provided for in the foregoing paragraph should
not be subject to prior
censorship but shall be subject to subsequent imposition of
liability,
which shall be expressly established by law to the extent necessary
to ensure -
(a) respect for the rights or
reputations of others; or
(b) the
protection of national security, public order or public health or
morals. (the underlining is mine)
Section 20
of the Constitution provides, in relevant part, as follows:
20 Protection
of freedom of expression
(1) 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.
(2) Nothing
contained in or done under the authority of any law shall be held to
be in contravention of subsection (1) to the
extent that the law
in question makes provision -
(a) in the interests of defence,
public safety, public order, the economic interests of the State,
public morality or public health;
(b) for
the purpose of -
protecting
the reputations, rights and freedoms of other persons or the private
lives of persons concerned in legal proceedings;
preventing
the disclosure of information received in confidence;
(iii) maintaining the authority
and independence of the courts or tribunals or Parliament;
(iv) regulating
the technical administration, technical operation or general
efficiency of telephony, telegraphy, posts, wireless
broadcasting or
television or creating or regulating any monopoly in these fields;
(v) in
the case of correspondence, preventing the unlawful dispatch
therewith of other matter.
(c) that imposes restrictions
upon public officers;
except
so far as that provision or, as the case may be, the thing done under
the authority thereof is shown not to be reasonably justifiable
in a
democratic society.
A
proper reading of the above sections reveals that the underlined
words in Article 13 of the Convention do not appear in their
equivalent of s 20 of the Zimbabwean Constitution. The
difference in wording leads, in my view, to two significant
differences
in meaning between the two provisions. The right
guaranteed in Article 13(1) of the Convention is broader than
the right guaranteed
by s 20(1) of the Constitution. The
former includes the means of exercising the guaranteed right, while
the latter does not.
Similarly, the derogation permissible in terms
of Article 13(2) is narrower than that permissible in terms of
s 20(2)
of the Constitution.
Firstly,
Article 13(1) of the Convention guarantees the means
of exercising
the guaranteed freedom of expression. The Convention not only
guarantees the individuals freedom of expression but it also
guarantees
the individuals entitlement to all means of exercising
that right, the right of freedom of expression. The Convention in
effect
guarantees an individuals right to practise journalism or
exercise freedom of expression through the medium of journalism if he
so chooses. Section 20(1) of the Constitution of Zimbabwe
guarantees an individuals right to freedom of expression. It
does not expressly guarantee the exercise of that right through any
means of ones choice. I see nothing in the language of s 20(1)
that suggests that the legislature intended to confer on an
individual a constitutional entitlement to work as a journalist. It
is quite clear that the Advisory Opinion is predicated on the
individuals guaranteed right to any means, in exercising the
freedom of expression. Any means includes the practise of
journalism, guaranteed by the Convention. In terms of Article 13(1)
of the Convention, an individuals entitlement to practise as a
journalist is a constitutionally protected and guaranteed right.
Secondly,
Article 13 of the Convention outlaws preventive restriction of
any description. The requirement for the licensing
of journalists,
and indeed the need for accreditation, is a preventive restriction,
expressly prohibited by Article 13(2) of
the Convention.
Section20(2) of the
Zimbabwean Constitution does not, expressly or implicitly, prohibit
preventive restriction.
Thus
the President of the Court, THOMAS BUERGENTHAL, had this to say
in para 38 of the main opinion in this regard:
38. Article 13(2)
of the Convention defines the means by which permissible limitations
to freedom of expression may be established.
It stipulates, in the
first place, that prior
censorship is always incompatible
with the full enjoyment of the rights listed in Article 13, but
for the exception provided for in subpara (4) dealing with
public entertainment even if the alleged purpose of such prior
censorship is to prevent abuses of freedom of expression. In
this area preventive measure inevitably amounts to an infringement of
the freedom guaranteed by the Convention.
(The underlining is mine)
The
same point is made by JUDGE RODOPFO E. PIZA E at para 17
of his concurring opinion:
17. Therefore:
I am in agreement with the two conclusions of the Advisory Opinion
but would add the following
Third:
That, furthermore, the very licensing of journalists in general, and
that established by Law No. 4420 in particular,
are also
incompatible with Article 13 of the Convention, insofar as they
impose a licence or a prior authorisation for the practice
of that
profession, which is the same as preventive restriction not
authorised by Article 13(2) of the Convention to the freedom
of
expression.
In
short, Article 13(2) of the Convention totally prohibits
legislation that provides for preventive restrictions on freedom
of
expression but allows, subject to certain conditions, legislation
that provides for subsequent imposition of liability. Article 13(2)
of the Convention makes a distinction between legislation that
provides for preventive restrictions, which it totally prohibits,
and
legislation that is restrictive in providing for subsequent
imposition of liability. It prohibits the former and allows the
latter subject to certain further criteria. This distinction is
very important as it formed the basis of the ratio
decidendi for holding
Law No. 4420 to be incompatible with Article 13 of the
Convention.
Subsection (2)
of s 20 of the Constitution, which provides for the derogations
to the freedom of expression makes no distinction
between legislation
imposing preventive restrictions and legislation imposing subsequent
liabilities. Subsection (2) of s 20
permits both
legislation imposing preventive restrictions and legislation imposing
restrictions in the form of subsequent liabilities
provided such
legislation falls within the permitted derogation.
On
this basis it is erroneous to ascribe to s 20 of the
Constitution of Zimbabwe the interpretation ascribed to Article 13
of the Convention by the Inter-American Court of Human Rights. The
texts are materially different and to do so would in effect
amend
s 20 of the Constitution.
I,
however, wish to make the following observation. If Law No. 4420
were a Zimbabwean statute and was challenged it would
most probably
be struck down as unconstitutional because it places too onerous a
burden, namely, possession of a University degree,
on anyone wishing
to be a journalist.
In
brief, I would restate my conclusion as follows. I accept as
correct the interpretation of the Inter-American Court of Human
Rights of Article 13 of the Convention. I do not agree that
the same interpretation can be ascribed to s 20 of the
Zimbabwean
Constitution because the texts are different.
I agree with
Mr Moyos
submission that the practice of journalism is different from the
practice of other liberal professions such as law and medicine.
It
is correct that the practice of journalism involves the exercise of
the freedom of expression, the receiving and imparting of
information. This distinction, in my view, does not place the
practice of journalism beyond the control of statutory regulation.
This distinction is reflected in the fact that any law that seeks to
regulate the practice of journalism has to conform with the
stringent
requirements for a law abridging the right conferred by s 20 of the
Constitution to be valid. The statutory provisions
regulating the
other professions are not required to conform with the stringent
requirements of s 20 of the Constitution to
be valid.
The press
has been colloquially referred to as the fourth arm of the State.
Mr Moyo
made several submissions in which he very ably set out the
significance and importance of the press to the proper functioning of
a democracy. In support of the above submissions he referred the
Court to a very wide range of authorities. The Court accepts
these
submissions and acknowledges, as it did in the Capital
Radio
case, supra,
the significance and importance of the press.
The
acknowledged importance of the press does not mean that the press is
above the law and cannot be required to operate within
a legal
framework. Indeed the applicants, by challenging some sections of
the Act and not challenging others, tacitly concede the
constitutionality of the unchallenged sections. Inherent in this
tacit concession is the proposition that it is constitutionally
permissible to regulate the press. What emerges from the
authorities we have been referred to is that it is vital and indeed
critical
to the proper functioning of the press that the legal
framework should ensure and enhance the independence of the press
from both
governmental and commercial control.
It is with the above objective in mind that the constitutionality
of enactments regulating the press will be tested. Enactments
that
unduly undermine the independence of the press will not pass the laid
down test for the constitutionality of such enactments.
In
challenging s 79 Mr Moyo
advanced a number of grounds for the challenge. He submitted that s
79 and the other impugned sections do not fall within the ambit
of
any of the exceptions to s 20(1) of the Constitution and, are
therefore invalid, null and void.
In paragraph
15.30 of his heads of argument Mr Moyo
makes the following submission in regard to s 79 as read with s
91(2)(p):
This
provision is central to the entire licensing system and yet it is
impossibly vague. No indication is given of what should constitute
either prescribed formalities or prescribed standards,
nor are any limitations imposed on the content of two conditions
for
obtaining a licence. As a result, these provisions vest too much
discretionary powers [to restrict] freedom of expression in
a
government body and fail to provide for any control mechanisms or
consultation process. They thus fail to meet the standards
required
under the provided by law part of the test restrictions on freedom of
expression.
We submit, therefore, that subsections
79(5)(a)
and (b) in tandem with section 91(2)(p) grant excessive measure of
discretion to politically linked individuals and bodies
and thus do
not satisfy the requirement that restrictions on freedom of
expression be provided by law.
In
the above submission I understand Mr Moyo
to be making the following points -
section
79 provides for the licensing of the media;
the
section is impossibly vague and,
it
confers directly or indirectly too much discretion or power on a
political functionary.
On
that basis, he argued that s 79 should be declared unconstitutional.
There
is no doubt that s 79, as Mr Moyo
has submitted, is at the centre of the licensing system. The
authorities clearly establish that the licensing of the media fall
under the exception of public order.
I find myself in agreement with the proposition that a law
providing for the licensing of the media falls under the exception
of
a law providing for public order. On that basis Mr Moyos
contention that s 79 does not fall under any one of the exceptions to
s 20(1) cannot succeed.
Having
concluded that s 79 falls under the exception of public order, the
next issue that falls for determination is Mr Moyos
contention that s 79 is too vague to be law and in the event that the
Court concludes that s 79 is not vague, the next issue will
be, is it
reasonably justifiable in a democratic society? As I said Mr Moyo
has argued that s 79 as a whole and, in particular, subsection (5) is
too vague to be categorised as provided by law. I am unable
to
agree with that submission. Subsection (1) is very clear in its
language. It clearly states that in order to exercise the
privileges accorded in s 78, which has not been impugned and is
therefore for the purposes of this case constitutional, a journalist
has to be accredited by the Commission. I see nothing vague about
this subsection. The subsection is as clear as it can be.
It
states in very clear terms that in order to enjoy the benefits
conferred by s 78 a journalist requires accreditation.
Subsections
79 (2), (3) and (4) are very explicit. Subsection (2)
expressly provides that non-citizens and non-permanent
residents
cannot be accredited as journalists except for a limited period of
time as provided in subs (4). There is nothing
vague or
ambiguous about these subsections. Subsection (3) is equally
explicit in that it provides that a journalist wishing to
be
accredited is required to apply to the commission in the form and
manner prescribed. It is patently clear that the form and
manner
will be prescribed in the relevant statutory instrument. In my view
the intention of the legislature is very clear. What
is required of
an applicant is equally clear. Look at the relevant statutory
instrument and it will tell you how to make an application
for
accreditation and the fee that is required.
The
applicants locus
standi to challenge
the constitutionality of s 79 (2), (3) and (4) is doubtful. There
is no averment on the papers that the applicants
or any of the
members of the first applicant are not citizens or permanent
residents of Zimbabwe. In the absence of such an averment
the
inference is that the applicants are citizens and/or permanent
residents of Zimbabwe in which case it is difficult to see how
they
are adversely affected by the above subsections.
I
also find s 79(5) fairly clear. In terms of subs (5), the
Commission may accredit an applicant as a journalist if
it is
satisfied that the applicant comes within the parameters set out
therein. It is quite clear from the context that the word
may
means shall in this subsection.
In
ordinary usage, may is a permissive and must is
imperative, and, in accordance with the usage, the word may in
a statute will not generally be held to be mandatory. In some
cases, however, it has been held that expressions such as may
or shall have power or shall be lawful have to say
the least a compulsory force and so their meaning has been
modified by judicial exposition.
See
Maxwell on The
Interpretation of Statutes
12 ed by P St. J Langan at pp 234-235 and the
cases there mentioned.
The
use of the word may here does not, as it would in the ordinary
sense of the word, confer a discretion on the Commission.
If it
did, one could be faced with a situation where an applicant, having
complied with the requirements of subs 79(5) could
be denied
accreditation at the whim of the Commission. This cannot have been
the intention of Parliament. The requirements for
accreditation
were set out in subs (5) and the intention must be that, upon
satisfaction of those requirements, an applicant
is entitled to be
accredited. This provision does not allow for an abuse of its
powers of accreditation by the Commission. Indeed
it lends
protection to an applicant who has complied with the prescribed
formalities that he will not be deprived of accreditation
for reasons
other than those stated in the subsection. It certainly does not
inhibit the journalist in expressing himself freely.
The
courts interpret statutes so as to give effect to the intention of
Parliament, as expressed in the words of the statute.
It
is hardly necessary to stress that the intention of the Legislature
is to be gleaned from the language used; we must be very careful
to
avoid the assumption that the Legislature intended what we think it
ought to have intended.
Per
BARON JA in Hewlett
v Minister of Finance & Anor
1982 (1) SA 490 (ZSC) at 509E.
On
this basis, I am satisfied that once an applicant has satisfied the
legal requirements he will as a matter of law be entitled
to
accreditation.
It
is patently clear from this section that the formalities in question
will be provided for in the relevant statutory instrument
or
regulations. Paragraph 79(5)(b) also provides that the Commission
has to be satisfied that the applicant has the prescribed
qualification. The qualification no doubt has to be provided for in
the relevant regulations. If the regulations lack clarity
as to
what constitutes qualification, it is the regulations that may fall
foul of the constitution and may be challenged. It would
appear to
me that the substance of the matter will be in the regulations
prescribing the formalities and the qualifications.
Thus if the regulations provide too onerous formalities and
qualifications they may fall foul of the Constitution.
Whereas if the regulations provide for mere formalities and
qualifications that are hardly onerous it is difficult to see how
they
can fall foul of the Constitution. Thus, for instance, if the
regulations prescribing the qualification provide that a journalist
has to have a university degree in order for him to be accredited as
a journalist then such a law will most probably be held to be
unconstitutional.
On the other hand, if the regulations prescribing the qualification
for accreditation is that the applicant be literate it is unlikely
to
be held unconstitutional.
In
any event, the qualifications and the formalities required are not a
matter of conjecture. They are set out in Statutory Instrument
169C
of 2002, which provides for the registration and accreditation of
journalists. A perusal of the Regulations reveals nothing
patently
unconstitutional, except for Form AP3 in the Second Schedule to
the Regulations. The requirement in that Form, that
accreditation
be approved by the Permanent Secretary and the Minister, bears the
hallmarks of unconstitutionality. The applicants
are entitled to
challenge the constitutionality of any of the provisions of SI 169C.
They have not done so and the only reasonable
inference to be drawn
is that the applicants do not believe they have a basis for such a
challenge.
The
applicants contention that when s 79 is read with s 91 the effect
is unconstitutional is without substance. Section 91 merely
enables
the Minister to make regulations and specifically mentions areas in
respect of which the Minister may make such regulations.
The first
observation I would make is that s 91 is not impugned in the
applicants affidavits. It is impugned in the heads
of argument.
An applicants case, as a general rule stands or falls on his or
its founding affidavit. Be that as it may, s
91 is an enabling
provision found virtually in every other Act that provides for the
making of regulations. The Minister responsible
for the
administration of the Act is conferred with the authority to make
regulations under the Act. This is not to say he is given
a blank
cheque to make such regulations. The regulation made in terms of
the Act are equally subject to constitutional scrutiny
like any other
law.
Mr
Moyo
has also argued that s 79 confers on political authority, the
Minister, too much power in the licensing system for journalists.
I
am unable to accept this submission for a number of reasons. A
proper reading of the section reveals that that section confers
on
the Commission and not the Minister certain powers. If the
suggestion is that the Commission is not sufficiently independent
of
the Minister or is controlled by the government the argument is
misconceived. Indeed Mr Moyo
argued strenuously the point that the Commission was not independent.
Section 40 of the Act is the section that provides for the
appointment and composition of the Commission. Section 40 is not
impugned therefore this Court is not seized with the issue of
the
constitutionality or otherwise of s 40 of the Act. If it is the
applicants contention, as it seems to be, that the Commission
is
not sufficiently independent of governmental control then the
applicant should have impugned s 40 which constitutes the Commission.
This Court considered s 4 of the Broadcasting Act [Chapter 12:01]
in the Capital Radio
case, supra.
That section similarly constitutes the Broadcasting Authority under
that Broadcasting Act. This Court unanimously concluded, in
that
case, that s 4 of the Broadcasting Act was constitutional because the
regulating authority was, from a legal point of view,
independent of
governmental control.
In
Nyambirais case,
supra,
this Court set out a three tier criteria that legislation has to
satisfy to be adjudged reasonably justifiable in a democratic
society.
These are:
whether
the objective of the legislation is sufficiently important to
justify limiting a fundamental right;
whether
the measure designed to meet the legislative objective rationally
connected to it; and
whether
the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.
It
is common cause that s 79 is at the centre of the licensing system.
Licensing of the media, as I have already stated, is sufficiently
important to have been recognised as a constitutional exception.
Accordingly I am satisfied that the object of s 79 is
sufficiently important for the purpose set in (1) above.
Section
79 is rationally connected to the above objective because as was
submitted by the applicants counsel, it is at the centre
of the
licensing process. On this basis s 79 is, therefore, rationally
connected to the objective of legislation. The second
requirement
is therefore met.
The
third requirement cannot be conveniently applied to s 79. Section
79 is essentially an enabling provision. The requirement
that the
means used be no more than is necessary to accomplish the objective
can only be applied to the regulations that prescribe
formalities and
qualifications for accreditation. As I have said, none of the
provisions of SI 169C have been challenged.
Section 79 merely
confers the powers to make regulations that prescribe the formalities
and qualifications for accreditation.
The test will have to be
applied to the regulation that prescribes the formalities and the
qualifications and not s 79 which only
confers the powers to make
such regulations.
In
the result I come to the conclusion that the challenge to s 79 cannot
succeed.
I
now turn to deal with s 80. This section criminalises the abuse of
journalistic privilege. In my view the philosophy of this
section
as encapsulated in the wording is a cause for concern.
Generally
speaking, when one abuses a privilege the remedy is withdrawal of the
privilege. Criminalising the abuse of a privilege
is patently
oppressive. In any event this Court has concluded that freedom of
the press is subsumed under s 20 of the Constitution
and to perceive
the exercise of a constitutionally protected right as a privilege
cannot be correct. Freedom of the press is a
constitutionally
guaranteed right and not a privilege.
Subsections
80(1) (a) and (b) provide that a journalist who falsifies or
fabricates information and publishes falsehoods is guilty
of a
criminal offence. These provisions create strict criminal liability
and are so broad in their sweep that I have no hesitation
in agreeing
with Mr Moyos
submission that on the authority of S
v Chogugudza
and
Tsvangirayi v The State
these provisions are unconstitutional in
that
they are ultra vires
s 18 of the Constitution.
I,
however, do not agree with Mr Moyos
submission that s
80(1)(a) and (b) are ultra
vires s 20 of the
Constitution. In my view the constitutional right protected under s
20 relates to the freedom to impart and receive
information without
hindrance. In my view falsehood is not information. Falsehood is
the antithesis of the truth or information.
The Constitution
confers no right on an individual to falsify or fabricate information
or to publish falsehoods. Section 20 of
the Constitution protects the
right to impart and receive information, not falsehoods.
Information is the truth. Falsehoods are
not information. There
is no intrinsic value in the falsification or fabrication of
information or the publication of falsehoods
as to warrant
constitutional protection of such an activity.
Section
80(c) criminalises the conduct of a journalist who is not a freelance
journalist who collects or disseminates information
without the
permission of his employer. I have serious doubts that this
provision can be said to fall under the exception of public
order in
terms of s 20(1) of the Constitution. Even if I were to accept that
it does, that section does not, in my view, pass any
of the three
tests set out in Nyambirais
case, supra.
The objective of s 80(1)(c) is obscure. An obscure objective can
never be sufficiently important to justify the limiting of
the
freedom of expression.
The
matters raised in s 80(1)(c) are matters that are best left in the
domain of contractual relationship, that is, between employer
and
employee. Criminalising such conduct has a chilling and
intimidating effect on journalists. I accordingly hold the view
that s 80(1)(c) is unconstitutional.
Section
80(1)(d) is a standard clause found in most Acts of Parliament. It
criminalises the contravention of a provision of the
Act. Once a
provision of the Act is constitutional I see nothing wrong in
criminalising the contravention of a provision that complies
with the
Constitution. To the extent that s 80(2) has been of necessity
amended by the striking down of paragraphs (a)(b) and (c)
of the
section I see nothing unconstitutional in the amended s 80(2).
In
brief, and for the foregoing reasons, sections 80(1) (a), (b) and (c)
are unconstitutional and should be struck down.
Section 83
prohibits an individual from practising as a journalist unless he or
she is accredited as a journalist. The issues
raised here are
identical to those raised in respect of the challenge to s 79.
What I said in regard to s 79 applies
with equal force to s 83.
In my view, s 83 is constitutional.
I
now turn to deal with s 85. The grounds of the applicants
challenge to s 85 are set out in paragraph 13 and 26 of the founding
affidavit of Mr Mutsakani. In effect the applicants seem to be
making the following points:
Section
85 confers on the second respondent too much power to interfere with
the right of freedom of expression of journalists and
reduces that
right to a privilege to be enjoyed at the discretion of the second
respondent.
Section
85 as well as the other impugned sections go beyond the purpose for
which the derogations from s 20(1) are permissible.
I
must confess that I find Mr Moyos
submissions in regard to s 85 equivocal. From paragraph
15.33
to 15.34 of the heads of argument Mr Moyo
seems to contend that while it may be proper to regulate other
professions it is unconstitutional to regulate journalism. Only
self regulation is constitutional when it comes to journalism.
However, in paragraph 15.35 of the heads of argument Mr Moyo
seems to be making the concession that legislative regulation of the
media is permissible but such regulation must be minimal otherwise
it
becomes unconstitutional and that s 85 exceeds what is
constitutionally permissible. I have already concluded that
legislative
regulation of the media is permissible within
constitutionally permissible limits. I will now proceed to
determine whether s 85
is constitutionally permissible.
Section
85(1) confers on the Commission powers to develop a Code of Conduct.
It enjoins the Commission to consult with stakeholders
such as
journalists when developing the Code of Conduct. The only argument
advanced on behalf of the applicants is that the development
of the
Code of Conduct should be done by the journalists themselves without
the involvement of the Commission. While this may be
preferable I
am unable to accept that the involvement of the Commission in such an
activity is unconstitutional.
Section
85(2) confers on the Commission the power to enforce the Code of
Conduct. The section also provides for maximum sanctions
that the
Commission can and not
shall impose for the
breach of the Code of Conduct. This again is essentially an
enabling provision. It sets out what the Commission
can do as
opposed to shall do. The section confers on the Commission absolute
discretion on what sanctions should be imposed for
violations of the
Code of Conduct within the prescribed limit. I have some
difficulty in understanding the basis of the challenge
to this
section. The suggestion seems to be that journalists should not be
sanctioned for violating the Code of Conduct as such
sanction would
be unconstitutional. I do not find this submission persuasive.
Subsections
85 (3), (4), (5), (6) and (7) provide for the mechanisms to be
followed in misconduct proceedings. They provide for
a fair hearing
and the appeal procedures. There simply is no substance in the
submission that these subsections are unconstitutional.
In
the result, and for the foregoing reasons, I hold that s 80(1) (a),
(b) and (c) are unconstitutional and are hereby struck down.
Section 79, subss (1)(d) and (2) of section 80, s 83
and s 85 are hereby declared constitutional.
There
will be no order as to costs because both parties have partially
succeeded.
CHEDA
JA: I agree
ZIYAMBI
JA: I agree
MALABA
JA: I agree
SANDURA
JA: I have read the judgment prepared by CHIDYAUSIKU CJ and agree
that paragraphs (a),(b)and (c) of s 80(1) of the Access
to
Information and Protection of Privacy Act [Chapter 10:27] (the
Act) are inconsistent with s 20(1) of the Constitution of
Zimbabwe
(the Constitution). In addition, I agree that subsections
(1),(3),(4),(5),(6) and (7) of s 85 do not contravene
s 20(1) of the
Constitution. However, I respectfully disagree with the conclusion
that ss 79,80(1)(d),80(2),83 and 85(2) do not
contravene s 20(1) of
the Constitution. The section reads as follows:-
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.
However,
the right to freedom of expression is not absolute because subsection
(2) of s 20 of the Constitution authorises a restriction
of this
right in certain circumstances. The subsection, in relevant part,
reads as follows:-
Nothing
contained in or done under the authority of any law shall be held to
be in contravention of subsection (1) to the extent that
the law in
question makes provision
(a) in
the interests of defence, public safety, public order, the economic
interests of the State, public morality or public health;
for the
purpose of
protecting
the reputations, rights and freedoms of other persons or the private
lives of persons concerned in legal proceedings;
preventing
the disclosure of information received in confidence;
maintaining
the authority and independence of the courts or tribunals or
Parliament;
;
except
so far as that provision or, as the case may be, the thing done under
the authority thereof is shown not to be reasonably justifiable
in a
democratic society.
The
provisions in subsections (1) and (2) of s 20 of the Constitution are
very similar to the provisions in paragraphs 1 and 2 of
Article 13 of
the American Convention on Human Rights, which read as follows:-
1. Everyone
has the right to freedom of thought and expression. This right
includes freedom to seek, receive, and impart information
and ideas
of all kinds, regardless of frontiers, either orally, in writing, in
print, in the form of art, or through any other medium
of ones
choice.
2. The
exercise of the right provided for in the foregoing paragraph shall
not be subject to prior censorship but shall be subject
to subsequent
imposition of liability, which shall be expressly established by law
to the extent necessary to ensure:
a.
respect for the rights or reputations of others; or
b. the
protection of national security, public order, or public health or
morals.
I
have set out these provisions in
extenso because I
shall refer to them in the course of this judgment.
In
broad terms, two issues arise for determination in this application.
The first is whether the provisions of the Act being challenged
constitute restrictions of the right to freedom of expression
guaranteed by s 20(1) of the Constitution. If they do, the second
issue to consider is whether they are saved by s 20(2) of the
Constitution, on the basis that the restrictions are reasonably
justifiable
in a democratic society.
Although
s 78 of the Act has not been challenged, I would like to set out its
provisions to facilitate a better understanding of
s 79(1) of the
Act. The section, in relevant part, reads as follows:-
Subject
to this Act and any other law, a journalist shall have the right
to enquire,
gather, receive and disseminate information;
(b)-(f)
;
to
circulate reports and materials he prepared under his signature,
under a pseudonym or without any signature.
I
now wish to consider whether the provisions of the Act being
challenged contravene s 20(1) of the Constitution.
I. SECTION
79
This
section deals with the accreditation of journalists and, in relevant
part, reads as follows:-
(1) No
journalist shall exercise the rights provided in section
seventy-eight in Zimbabwe without being accredited by the Commission.
Any person
who wishes to be accredited as a journalist shall make an
application to the Commission in the form and manner and accompanied
by the fee, if any, prescribed
The
Commission may accredit an applicant as a journalist and issue a
press card to the applicant if it is satisfied that the applicant
has
complied with the prescribed formalities; and
possesses
the prescribed qualifications; and
The
word journalist is defined in s 62 of the Act as follows:-
journalist
means a person who gathers, collects, edits or prepares news, stories
and materials for the office of a mass media and
is connected with it
by reason of his employment and includes freelance journalist.
In
order to make provisions for, inter
alia, the manner in
which a person wishing to be accredited as a journalist would apply
for accreditation, the Access to Information and
Protection of
Privacy (Registration, Accreditation and Levy) Regulations, 2002,
published in Statutory Instrument 169C of 2002 (the
Regulations)
were promulgated on 15 June 2002. Section 6 of the Regulations
reads as follows:-
An
application for the accreditation of a journalist in terms of section
79 of the Act shall be made in Form AP3 and shall be accompanied
by
the appropriate application fee and accreditation fee.
The
application and accreditation fees are set out in the First Schedule
to the Regulations. In the case of an application by
a local
journalist working for a local media, the application fee is $1 000
and the accreditation fee is $5 000. In the case of
a local
journalist working for a foreign media, the application fee in US$50
and the accreditation fee is US$1 000.
However,
it is clear from Form AP3, the application for the accreditation of a
journalist, that the accreditation of a journalist
by the Commission
is subject to approval by the Permanent Secretary and by the first
respondent, with the first respondent having
the final say in the
matter. The accreditation is not, therefore, a mere formality. If
it were, why would it need the Ministers
approval?
I
now wish to consider whether s 79 imposes a restriction on freedom of
expression. I have no doubt in my mind that it does.
The
journalist has to apply for accreditation and pay application and
accreditation fees. In addition, the accreditation is not
a mere
formality.
It
is pertinent to note that there is no rational basis for
distinguishing the practice of journalism from the exercise of the
right
to freedom of expression, because the two are intertwined.
This was made clear by the Inter-American Court of Human Rights in
its
Advisory Opinion on Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism. The Opinion had
been
sought by the Government of Costa Rica on the interpretation of
the provisions of Article 13 of the American Convention on Human
Rights, which I have already set out in this judgment.
In
the Advisory Opinion, OC-5/85 of 13 November 1985, Series A, No 5,
the Court had this to say at para. 74:-
It
has been argued that what the compulsory licensing of journalists
seeks to achieve is to protect a paid occupation and that it
is not
directed against the exercise of freedom of expression as long as it
does not involve remuneration and that, in that sense,
it deals with
a subject other than that dealt with by Article 13 of the Convention.
This argument is based on a distinction between
professional
journalism and the exercise of freedom of expression that the Court
cannot accept. This argument assumes that it is
possible to
distinguish freedom of expression from the professional practice of
journalism, which is not possible. Moreover, it
implies serious
dangers if carried to its logical conclusion. The
practice of professional journalism cannot be differentiated from
freedom of expression. On the contrary, both are obviously
intertwined, for the professional journalist is not, nor can he be,
anything but someone who has decided to exercise freedom of
expression
in a continuous, regular and paid manner.
It should also be noted that the argument that the differentiation
is possible could lead to the conclusion (that) the guarantees
contained in Article 13 of the Convention do not apply to
professional journalists. (emphasis added)
Additionally,
at para 72 the Court said:-
The
argument that a law on the compulsory licensing of journalists does
not differ from similar legislation applicable to other professions
does not take into account the basic problem that is presented with
respect to the compatibility between such a law and the Convention.
The problem results from the fact that Article 13 expressly protects
freedom to seek, receive and impart information and ideas
of all
kinds
either orally, in writing, in print
The profession
of journalism the thing journalists do involves,
precisely,
the seeking, receiving and imparting of information. The practice
of journalism consequently requires a person to engage
in activities
that define or embrace the freedom of expression which the Convention
guarantees.
The
only issue for consideration, therefore, is whether the restriction
imposed on freedom of expression by s 79 is reasonably justifiable
in
a democratic society.
However,
as this Court stated in Woods
& Ors v Minister of Justice & Ors
1994 (2) ZLR 195 (S) at 199B-C:-
What
is reasonably justifiable in a democratic society is an elusive
concept. It is one that defies precise definition by the courts.
There is no legal yardstick, save that the quality of reasonableness
of the provision under attack is to be adjudged on whether
it
arbitrarily or excessively invades the enjoyment of the guaranteed
right according to the standards of a society that has a proper
respect for the rights and freedoms of the individual. See In
re Munhumeso & Ors
1994 (1) ZLR 49 (S) at 64; and generally, CoT
v CW (Pvt) Ltd 1989
(3) ZLR 361 (S) at 370F-372C; 1990 (2) SA 260 (ZS) at 265B-266D.
Nevertheless,
in Nyambirai v NSSA &
Anor 1995 (2) ZLR 1
(S) this Court set out the criteria which should be considered in
determining whether or not a restriction is permissible.
At 13C-E
GUBBAY CJ, with whom I and three other judges of this Court
concurred, said:-
In
effect the court will consider three criteria in determining whether
or not the limitation is permissible in the sense of not being
shown
to be arbitrary or excessive. It will ask itself whether:
(i) the
legislative objective is sufficiently important to justify limiting a
fundamental right;
the
measures designed to meet the legislative objective are rationally
connected to it; and
the means
used to impair the right or freedom are no more than is necessary to
accomplish the objective.
See
R v Oakes
(1986) 19 CRR 308 at 336 337 (a decision of the Supreme Court of
Canada).
Due
to the overriding importance of freedom of expression in a democratic
society, the above test is to be applied strictly. This
point was
made by the European Court of Human Rights in Thorgeir
Thorgeirson v Iceland
(1992) 14 EHRR 843, at para 63, as follows:-
The
Court recalls that freedom of expression constitutes one of the
essential foundations of a democratic society; subject to Article
10(2), 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. Freedom
of expression, as enshrined in Article 10, is subject to a number of
exceptions which, however, must be narrowly interpreted
and the
necessity for any restrictions must be convincingly established.
(emphasis added)
I
now wish to apply the test set out in Nyambirais
case, supra,
to the facts of the present case in order to determine whether the
restrictive provisions of s 79 are reasonably justifiable in
a
democratic society.
ARE
THE LEGISLATIVE OBJECTIVES SUFFICIENTLY IMPORTANT TO JUSTIFY LIMITING
A FUNDAMENTAL RIGHT?
The
legislative objectives in respect of s 79 are set out by the first
respondent in his opposing affidavit as follows:-
Accreditation
is a worldwide practice which is primarily meant to ensure two main
objectives i.e. accountability of the journalist
to society and
ensuring easy access to events by the journalist.
However,
as the applicant avers in its answering affidavit, the second
objective given by the first respondent, i.e. ensuring easy
access to
events by the journalist, only applies to voluntary accreditation,
which is not in issue in this application. What is
in issue is the
compulsory accreditation of journalists. In the circumstances, the
first respondent has advanced only one objective
for the enactment of
s 79, i.e. the accountability of the journalist to society.
Regrettably,
the first respondent does not say how the requirement that a
journalist be accredited, before exercising his rights
as a
journalist, would achieve the intended objective. Nevertheless, I
am satisfied that the legislative objective given is not
sufficiently
important to justify limiting freedom of expression.
In
a number of cases this Court has stressed the importance of freedom
of expression in a democratic society. One of them is In
re Munhumeso & Ors, supra.
At 56G-57B, the Court said:-
The
importance attaching to the exercise of the right to freedom of
expression and freedom of assembly must never be under-estimated.
They lie at the foundation of a democratic society and are one of
the basic conditions for its progress and for the development
of
every man, per European Court of Human Rights in Handyside
v United Kingdom
(1976) 1 EHRR 737 at para 49
Freedom
of expression, one of the most precious of all the guaranteed
freedoms, has four broad special purposes to serve: (i) it
helps an
individual to obtain self-fulfilment; (ii) it assists in the
discovery of truth; (iii) it strengthens the capacity of
an
individual to participate in decision making; and (iv), it provides
a mechanism by which it would be possible to establish a
reasonable
balance between stability and social change
In
sum, what is at stake is the basic principle of the peoples
right to know.
See Indian Express
Newspapers (Bombay) v Union of India
(1985) 2 SCR 287. (emphasis added)
Similarly,
in Rights of Access to the Media, Andras
Sajo says the
following at p.3:-
Knowledge
is interwoven with the concept of man. Every person must have the
possibility of knowing the elements of his environment,
the
intellectual and scientific achievements of his fellow men, the facts
and the developments that affect or may affect his life
and generally
all those elements and facts which enable him not only to survive but
also freely to develop his personality. Knowledge
cannot and should
not be the monopoly of the few. It is a wealth which must be
accessible to everybody. Those who lack knowledge
are doomed to be
always victims of those who know; victims of deceit and distortion
of facts; victims of irrationality because
undoubtedly every person
who is ill informed cannot think correctly.
In
the circumstances, it is clear beyond doubt that the legislative
objective given for the enactment of s 79 is not sufficiently
important to justify limiting the fundamental right to freedom of
expression, which has been described by the Inter-American Court
of
Human Rights, in the Advisory Opinion already cited, as a
cornerstone upon which the very existence of a democratic society
rests.
ARE
THE MEASURES DESIGNED TO MEET THE LEGISLATIVE OBJECTIVE RATIONALLY
CONNECTED TO IT?
In
my view, they are not. I cannot see any rational connection between
the requirement that a journalist should be accredited before
practising as a journalist and the objective of making him
accountable to society. In his opposing affidavit the first
respondent
does not say how the two are connected.
ARE
THE MEANS USED TO IMPAIR THE RIGHT OR FREEDOM NO MORE THAN IS
NECESSARY TO ACCOMPLISH THE OBJECTIVE?
Put
differently, the question is whether the restrictive provisions in s
79 are the least drastic means by which the stated objective
of the
section may be accomplished. There can be no doubt that the answer
to that question is a negative one because the provisions
of the
common law and criminal law adequately make the journalist
accountable for his actions.
In
the circumstances, it is clear beyond doubt that the provisions of s
79 are not reasonably justifiable in a democratic society.
They,
therefore, contravene s 20(1) of the Constitution.
This
conclusion is supported by the Advisory Opinion of the Inter-American
Court of Human Rights, already cited in this judgment.
At para 85,
the Court unanimously concluded:-
That
the compulsory licensing of journalists is incompatible with Article
13 of the American Convention on Human Rights if it denies
any
person access to the
full use of the news media as a means of expressing opinions or
imparting information. (emphasis added).
As
already stated, the compulsory accreditation of journalists in terms
of s 79 is not a mere formality. It was obviously intended
to
exclude some persons from practising as journalists. For example,
those persons who cannot pay the application and accreditation
fees
are excluded from practising journalism.
I
now wish to deal very briefly with the argument that s 79 does not
contravene s 20(1) of the Constitution because it is a restriction
of
freedom of expression permitted by s 20(2) of the Constitution as it
makes provision in the interest of public order. I understand
the
argument to be that the compulsory accreditation of journalists was
introduced as a way of organising the profession in general.
This
argument was considered and rejected by the Inter-American Court of
Human Rights in the Advisory Opinion already cited. At
para 76, the
Court said:-
The
Court concludes, therefore, that reasons of public order that may be
valid to justify compulsory licensing of other professions
cannot be
invoked in the case of journalism because they would have the effect
of permanently depriving those who are not members
of the right to
make full use of the rights that Article 13 of the Convention grants
to each individual. Hence, it would violate
the basic principles of
a democratic public order on which the Convention itself is based.
I
entirely agree.
SECTION
80
This
section reads as follows:-
(1)
A journalist shall be deemed to have abused his journalistic
privilege and committed an offence if he does the following:-
falsifies
or fabricates information;
publishes
falsehoods;
except
where he is a freelance journalist, collects and disseminates
information on behalf of a person other than the mass media
service
that employs him without the permission of his employer;
contravenes
any of the provisions of this Act;
(2)
A person who contravenes subparagraphs (a) to (d) of subsection (1)
shall be guilty of an offence and liable to a fine not exceeding
one
hundred thousand dollars or to imprisonment for a period not
exceeding two years.
As
stated at the beginning of this judgment, I agree with CHIDYAUSIKU CJ
that paragraphs (a),(b) and (c) of s 80(1) contravene s
20(1) of the
Constitution. However, with regard to paragraphs (a) and (b) my
view is that the two paragraphs contravene s 20(1)
of the
Constitution simply because the publication of false statements is
protected by s 20(1) of the Constitution. The issue concerning
the
publication of false statements was considered by this Court in
Chavunduka & Anor v
Minister of Home Affairs & Anor
2000 (1) ZLR 552 (S). At 558E-559D GUBBAY CJ, with whom I and three
other judges of this Court concurred, said:-
Plainly,
embraced and underscoring the essential nature of freedom of
expression, are statements, opinions and beliefs regarded by
the
majority as being wrong or false
In
R v Zundel
(1992) 10 CRR (2d) 193 (Can SC) MADAM JUSTICE McLACHLIN (now CHIEF
JUSTICE)
, writing for the majority, in a valuable and
forward-looking
judgment, stated at 206:-
(The)
guarantee of freedom of expression serves to protect the right of the
minority to express its view, however unpopular it
may be; adapted
to this context, it serves to preclude the majoritys perception of
truth or public interest from
smothering the minoritys
perception. The view of the majority has no need of constitutional
protection; it is tolerated in
any event. Viewed thus, a law which
forbids expression of a minority or false view on pain of
criminal prosecution and imprisonment,
on its face, offends the
purpose of the guarantee of free expression.
And
continued at 209:
Before
we put a person beyond the pale of the Constitution, before we deny a
person the protection which the most fundamental
law of this land on
its face accords to the person, we should, in my belief, be entirely
certain that there can be no justification
for offering protection.
The criterion of falsity falls short of this certainty, given that
false statements can sometimes have
value and given the difficulty of
conclusively determining total falsity. Applying the broad
purposive interpretation of the freedom
of expression guaranteed by s
2(b) hitherto adhered to by this Court, I cannot accede to the
argument that those who deliberately
publish falsehoods are for that
reason alone precluded from claiming the benefit of the
constitutional guarantees of free speech.
I
now wish to deal with s 80(1)(d). This provides that a journalist
shall be deemed to have abused his journalistic privilege
and
committed an offence if he contravenes any of the provisions of the
Act. In other words, if a journalist who has not been accredited
in
terms of s 79 practises journalism, as he is constitutionally
entitled to do, he is deemed to have committed an offence. As
I
have concluded that s 79 contravenes s 20(1) of the Constitution, the
same applies to s 80(1)(d) because it prohibits conduct permitted
by
the Constitution.
Similarly,
s 80(2) which provides that a person who contravenes paragraphs (a)
to (d) of subsection (1) shall be guilty of an offence
contravenes s
20(1) of the Constitution because it prohibits conduct permitted by
the Constitution.
III SECTION
83
This
section reads as follows:-
(1)
No person other than an accredited journalist shall practise as a
journalist nor be employed as such or in any manner hold himself
out
as or pretend to be a journalist.
No person
who has ceased to be an accredited journalist as a result of the
deletion of his name from the roll, or who has been suspended
from
practising as a journalist, shall, while his name is so deleted, or
is so suspended, continue to practise directly or indirectly
as a
journalist, whether by himself or in partnership or association with
any other person, nor shall he, except with the written
consent of
the Commission, be employed in any capacity whatsoever connected
with the journalistic profession.
In
my view, it is clear beyond doubt that this section contravenes s
20(1) of the Constitution. That is so because the compulsory
accreditation of journalists in terms of s 79 contravenes s 20(1) of
the Constitution.
IV SECTION
85
This
section, in relevant part, reads as follows:-
(1) The
Commission shall, in consultation with such organisations it
considers to be representative of journalists, develop a code
of
conduct governing the rules of conduct to be observed by journalists.
The
Commission shall be responsible for enforcing the code of conduct
referred to in subsection (1) and shall, for that purpose,
have the
following powers in relation to any journalist who contravenes the
code or any provision of this Act
deleting
his name from the roll of journalists; or
ordering
his suspension for a specified period; or
imposing
such conditions as it deems fit subject to which he shall be allowed
to practise; or
ordering
him to pay a penalty not exceeding fifty thousand dollars; or
cautioning
him; or
referring
the matter for prosecution.
(3)
to (7)
In
my view, subsections (1),(3),(4),(5),(6) and (7) do not contravene s
20(1) of the Constitution, although the code itself, if
not carefully
drafted, might contravene s 20(1) of the Constitution. This view is
supported by the Advisory Opinion of the Inter-American
Court of
Human Rights, already cited in this judgment. At para 80 the Court
said:-
The
Court also recognises the need for the establishment of a code that
would assure the professional responsibility and ethics of
journalists and impose penalties for infringements of such a code.
The Court also believes that it may be entirely proper for a
State to
delegate, by law, authority to impose sanctions for infringements of
the code of professional responsibility and ethics.
But, when
dealing with journalists, the restrictions contained in Article 13(2)
and the character of the profession
must be
taken into account.
However,
subsection (2) stands on a different footing. This is so because it
empowers the Commission to penalize journalists,
not only for
contravening the code, which would be constitutional, but also for
contravening any provision of this Act, which
includes the
provisions of the Act which are unconstitutional.
What
that means is that in certain circumstances a journalist would be
penalized for doing what he is entitled to do in terms of
s 20(1) of
the Constitution; for example, practising journalism when he has not
been accredited in terms of s 79. For that reason,
subsection (2)
is in contravention of s 20(1) of the Constitution.
In
the circumstances, I would order as follows:-
Sections
79,80,83 and 85(2) of the Access to Information and Protection of
Privacy Act [Chapter 10:27] contravene s 20(1) of the
Constitution
of Zimbabwe and are hereby struck down.
The
costs of this application shall be borne by the first respondent.
Scanlen
& Holderness,
applicant's legal practitioners
Muzangaza
Mandaza & Tomana,
first respondent's legal practitioners
Civil
Division of the Attorney-Generals Office,
third respondent's legal practitioners