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MISA questions media commission's hiring process

(MISA/IFEX) - On Sunday, 31 May 2009, the Standing Rules and Orders Committee placed an advertisement in "The Sunday Mail" calling for applications from suitably qualified individuals wishing to be considered for appointment into the
Zimbabwe Media Commission (ZMC), setting into motion plans to set up the long overdue commission. The ZMC is set to replace the now defunct Media and Information Commission (MIC).

In terms of the Access to Information and Protection of Privacy Act (AIPPA) as amended in January 2008, Section 38 of the statutory instrument notes the creation of the ZMC which replaces the MIC. Section 38 reads: ". . .established is a commission to be known as the Zimbabwe Media Commission, which shall be a body corporate capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that bodies corporate may by law perform. . ."

On the other hand, Zimbabwe Constitutional Amendment 19, which clearly takes precedence over any provision of AIPPA that is inconsistent with it, stipulates the following: "there is a Zimbabwe Media Commission consisting of a chairperson and eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders".

That the ZMC now exists cannot be disputed vis-à-vis the controversy pertaining to the continued existence of the MIC which was, however, finally put to rest in the High Court case of Stanley Gama and others against the Ministry of Media, Information and Publicity, where Justice Bharat Patel ruled that the MIC is now defunct by virtue of the 11 January 2008 amendments to AIPPA which replaced the MIC with the ZMC.

Functions:

In terms of Section 100 N the functions of the newly created, but yet to be constituted ZMC shall include:

a) to uphold and develop freedom of the press; and
b) to promote and enforce good practice and ethics in the press, print and electronic media, and broadcasting; and
c) to ensure that the people of Zimbabwe have equitable and wide access to information; and
d) to ensure the equitable use and development of all indigenous languages spoken in Zimbabwe; and
e) to exercise any other functions that may be conferred or imposed on the Commission by or under an Act of Parliament.

Powers:

Amendment 19 further notes that an Act of Parliament may confer powers on the ZMC, including power to conduct investigations and inquiries into any conduct or circumstance that appears to threaten the freedom of the press and the conduct of the press, print and electronic media, and broadcasting. It may also confer power to conduct disciplinary action against journalists and other persons employed in the press, print or electronic media, or broadcasting, who are found to have breached any law or any code of conduct applicable to them.

MISA-Zimbabwe Opinion:

There are a number of aspects that arise from the advertisement calling for nominations to the media commission. There are a number of grey areas pertaining to the appointments and the processes leading to such appointments.

One apparent defect with the advertisement clearly lies in the fact that there is no set process envisaged of receiving recommendations for the commissioners from the public or civil society through a defined consultative framework in the selection process. Yet, the supposedly independent media commission ought to be a public body serving the public interest and should come into being through public participation.

There is also a missing link in terms of the transparency of the process between the time of lodging the applications in question and the final appointments as there is no provision that obliges the Standing Rules and Orders Committee (SROC) to publish the names of those who submit their applications, those eventually interviewed or those nominees that are subsequently short listed for presidential consideration. It would also be in the public interest for the SROC to publicly make known justifications regarding the rejection or subsequent selection of short listed nominees subject to presidential consideration.

There is also no readily identifiable legal basis from which the SROC derives its legal authority to call for applications from prospective appointees to the media commission especially given the fact that there are no regulations that establish the framework for the appointment of commissioners to the anticipated ZMC. The statutory regulations that had existed were only in respect of appointing commissioners to the MIC.

These regulations have since fallen with the demise of the MIC and are no longer applicable with respect to the ZMC as the two bodies are separate legal entities. What this implies is that, unless this position is rectified, the resultant commission will be legally defective as there is no legal basis that sanctions the appointment of commissioners to the ZMC.

Additionally, the nomination of candidates for appointment to bodies outside parliament is a relatively novel function for the SROC that is only coming into force with the advent of Amendment 19. Traditionally, the function of the SROC is to appoint members to Parliamentary Portfolio Committees and the Select Committee on the Constitution.

However, at face value as per the advertisement in question, the process being employed does not preclude the SROC from choosing (or not choosing) applicants on partisan grounds to consolidate their influence within the transitional arrangement.

Also worth noting is the fact that in terms of section 100N, there is a provision that reads: "to exercise any other functions that may be conferred or imposed on the Commission by or under an Act of Parliament". This provision is actually quite scary, as it essentially means that the other provisions can be read from outside those expressly stated by any Act of Parliament because there is no specific Act that is cited, although this presumably refers to the amended AIPPA. In addition, parliament can actually sit and craft another act that materially alters or amends one or a number of provisions that have already been defined within section 100N and it would still be legal and constitutional because the present law is too open-ended so as to allow such encroachment.

It is MISA-Zimbabwe's view that these issues of concern should be revisited and considered in the public interest and to foster accountability on the part of public bodies and institutions.

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