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Freedom of expression addressed in Zanu-PF/MDC agreement; MISA calls for explicit constitutional guarantee of media freedom

(MISA/IFEX) - The following is a 16 September 2008 MISA statement:

The right to freedom of expression and media freedom were among the issues discussed during talks that preceded the signing of a historic agreement on the establishment of an inclusive government between Zanu-PF and the two Movement for Democratic Change (MDC) formations in Harare on 15 September 2008.

Under Article XIX of the Agreement, which deals with freedom of expression and communications, parties to the negotiations agreed that:

- the government shall ensure the immediate processing by the appropriate authorities of all applications for re-registration and registration in terms of both the Broadcasting Services Act (BSA) and the Access to Information and Protection of Privacy Act (AIPPA).

- all Zimbabwean nationals including those currently working for or running external radio stations are encouraged to make applications for broadcasting licences in Zimbabwe in terms of the law.

- in recognition of the open media environment anticipated by this Agreement, the parties hereby:

1. Call upon governments that are hosting and/or funding external radio stations broadcasting into Zimbabwe to cease such hosting and funding

2. Encourage Zimbabweans running or working for external radio stations broadcasting into Zimbabwe to return to Zimbabwe.

3. [Agree] that steps be taken to ensure that the public media provides balanced and fair coverage to all political parties for their legitimate political activities.

4. [Agree] that the public and private media shall refrain from using abusive language that may incite hostility, political intolerance and ethnic hatred or that unfairly undermines political parties and other organisations. To this end, the inclusive government shall ensure that appropriate measures are taken to achieve this objective.

MISA-Zimbabwe position:

It is MISA-Zimbabwe's strong conviction that the Agreement's desire to free the media space remains illusory and is not easily achievable under the BSA as presently constituted. For instance, under the BSA, as amended in 2007, the issue of foreign investment shall be at the absolute discretion of the minister responsible. This amounts to retention of the prohibition of foreign funding and foreign ownership in the broadcasting sector, an austere restriction in a sector that is capital intensive notwithstanding the country's severe shortage of foreign currency.

Our position as MISA-Zimbabwe is that there should be a threshold on minimal foreign investment to allow for the transfer of skills and capital investment. The interpretation and implementation of any law should not be left to the discretion of a minister who might have his/her own biases with respect to would-be investors.

Furthermore and in terms of the BSA as amended in 2007, the Broadcasting Authority of Zimbabwe (BAZ), which is appointed by the President in consultation with the Ministry of Information, does not have the capacity to fairly, impartially and independently adjudicate applications for licences as it is susceptible to the whims and dictates of the Executive. In the same vein, equal and equitable access to the Zimbabwe Broadcasting Corporation (ZBC) should be preceded by its transformation from a state broadcaster into a truly independent public entity whose management is appointed by an independent board. MISA-Zimbabwe also argues that the new government should move speedily to enact a law that facilitates the setting up of an independent broadcasting and regulatory authority. The BAZ in its current form is not an independent body and does not have the capacity to issue licenses and regulate the industry impartially.

MISA-Zimbabwe therefore reiterates that the BSA should be repealed as it is not conducive to the entry of private players into the broadcasting sector as envisaged under the African Charter on Broadcasting. While the need for fair and balanced reporting in the state media is mentioned, especially the role of the Zimbabwe Broadcasting Corporation, MISA-Zimbabwe is of the view that the new government needs a new law that guarantees the independence of the ZBC, in addition to spelling out its responsibilities, mode of funding, governance structures and its accountability processes to the people of Zimbabwe.

The same arguments hold true with respect to the AIPPA, despite the December 2007 amendments to this law which still retains statutory regulation of the media through the continued existence of the Media and Information Commission (MIC) or its envisaged successor bodies, the Zimbabwe Media Commission (ZMC) and Media Council. This is in contravention of the Banjul Declaration on the Principles of Freedom of Expression in Africa which states that self-regulation is the best system of instilling professionalism in the media.

Statutory regulation of the media leaves it open to interference and vindictiveness on the part of the Executive, which has powers through the selection procedures of members appointed to bodies such as ZMC to close media organisations and cancel the accreditation of journalists. The closure of "The Daily News", "Daily News on Sunday", "The Tribune" and "Weekly Times" newspapers by the MIC is a telling lesson and experience in history on the dangers of statutory regulation that cannot be easily forgotten. It is surprising that while the political parties discussed the so called external radio stations, no mention was made as to the fate of the banned newspapers named above.

MISA-Zimbabwe is therefore calling for an explicit constitutional provision that guarantees media freedom and also recognises the right of journalists to establish their own self-regulatory mechanism through the Voluntary Media Council of Zimbabwe (VMCZ) which came into existence in June 2007.

MISA-Zimbabwe insists that the AIPPA and BSA, among other contentious legislation, infringes on the letter and spirit of the 1991 Windhoek Declaration, the African Charter on Broadcasting and the Banjul Declaration on Freedom of Expression, which should be used as benchmarks for the enactment of enabling laws and policy formulation to foster media freedom and freedom of expression, association and assembly.

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