Although the functions of the newly created
ZMC are largely similar to those of the former MIC as set out
in Section 39, there is no clause or provision in the Act which
presupposes that the MIC shall be transformed into the ZMC. Nor
is there any intimation that the MIC may execute the duties expressly
mandated to the ZMC. In fact the wording of the Act clearly anticipates
the formation of the ZMC and sets out the manner of appointment
of the new office bearers.
Section 39 of the Principal Act which establishes the MIC reads:
Established is a Commission, to be known as the Media and Information
Commission, which shall be a body corporate capable of suing
and being sued in its own name and, subject to this Act, of performing
all acts that bodies corporate may by law perform.
On the other hand the amendment Act under 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 …
A casual glance at the provisions outlined above raises one interesting
question about the legality of any media commission. This question
hinges precisely on the premise of the legal persona of the Commission.
This is where the Commission derives its legal recognition and
power to act as an independent artificial person. It is this
legal persona that legally empowers any body corporate to act
or carry out such business as may be reasonably incidental to
the objectives enshrined in its articles of association.
If, therefore, a commission or any other artificial legal entity
should lose such legal persona or corporate personality it necessarily
loses its power to act. It is therefore unequivocally clear that
the former MIC having been replaced by the ZMC lost its legal
persona and by the same token, its legal recognition.
What this means is that the MIC can no longer lawfully act or
issue legally binding directives as it has recently purported
to do as implicitly highlighted by its attempt (acting through
the minister) to issue the new steep application and accreditation
fees that were recently gazzetted by the government. This act
is a nullity; it is of no force and effect. Any attempt at according
the actions of the MIC legal recognition would be a perpetuation
of the illegality since the MIC no longer exists at law. Its
directives are therefore illegal and unconstitutional.
One pertinent question that also comes to mind is the idea of
when a Bill becomes law. At which precise moment does a Bill
become an official legal instrument? It is a trite point that
a Bill having gone through Parliament and duly passed by the
same body becomes law upon being signed by the President, or
upon a two-third majority resolution by Parliament should the
President refuse to so sign.
However in the present scenario we need not bother ourselves
with the latter scenario, since the AIPPA Amendment Bill was
duly passed by Parliament and signed into law by the President
in January 2008.
Having noted the above position and bearing in mind the fact
that the law does not operate retrospectively, it is clear that
the operations of the MIC were suspended by the passing of the
amendment Act. Its subsequent existence after the passing of
the Act was just as illegal as any other business that it may
have purported to conduct under the guise of the Commission,
unless such business was reasonably incidental to its winding
up.
Only ZMC could legally execute the business of the Commission
thereafter. The fact that to date the ZMC has not been constituted
does not then sanitise the illegal operation of the former Commission.
Not even convenience or necessity can exonerate or legally justify
the continued operation of this body. It should be the duty of
the government to ensure that there is created an enabling environment
that can conduce to the realisation or creation of this new legal
body.
Section 38 clearly states: The Commission (ZMC) shall have 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.
The fact that the ZMC is yet to be formed or created is a fault
that inevitably lies with the Parliament, considering the fact
that it did not endeavour to take necessary steps to ensure that
the statutory body came to life.
However, the Executive being the arm of government responsible
for the implementation of the law should be apportioned with
the greater part of the blame. As noted above a Bill becomes
law upon being ascended to by the President. Why the Executive
then chose to sit on the law before its implementation boggles
the mind. There can be no capable justification for the fact
that ZMC is still not constituted.
The ‘dirty hands’ principle is a fairly common maxim
which stipulates that a party cannot approach the court for redress
with soiled hands. One can only approach the court with clean
hands. This means that one has to comply with the law first before
seeking legal redress from the court. This classic maxim was
applied in the case of The Daily News by Chief Justice Godfrey
Chidyausiku.
In this case the Chief Justice denied the applicant the right
of audience before the court on the basis that it had not fully
complied with the law by choosing not to register as a media
house notwithstanding the fact that the applicant was challenging
the constitutionality of that same requirement that it was now
being compelled to fulfill before it could properly come before
the court.
In the same vein, given the clear fact that the continued existence
of MIC is illegal rendering any of its proclamations or directives
null and void. One wonders how its directives can be legally
enforceable when it has long outlived its sell-by date. Unless
its legal persona is reassumed, it therefore cannot wish to demand
legal compliance from any sector of the media industry before
it justifies or shows its existence to be legal.
What is however shocking is the fact that the Minister of Information
and Publicity, purporting to execute his duty under the guise
of Section 91 of AIPPA recently enacted new regulations under
statutory instrument 185 of 2008. The Amendment which is cited
as Access to Information and Protection of Privacy (Registration,
Accreditation, and Levy) (Amendment) Regulations, 2008 (No.5)
fixes the new accreditation and registration fees for journalists
working for foreign media.
The new fees proposed are absurdly high. They range from about
US$ 4 000 to about US$ 30 000 in application and accreditation
fees of journalists working for the foreign media and international
media wishing to operate in Zimbabwe respectively. Despite being
illegal, these fees are unjustifiably high. Even if the fees
were set within reasonable limits, the question is, to whom the
fees should be paid given the fact that MIC is now legally defunct
and the ZMC is yet to be constituted.
The new statutory instrument was gazzetted on 19 December 2008,
yet purports to operate retrospectively, as it clearly states
that new regulations shall become operational with effect from
the 1 August 2008. Clearly there is nothing to merit or warrant
retrospective operation of the law from a purely rational standpoint.
This development appears to be nothing short of being senseless
and illogical.
There is yet another legal twist to this debacle pertaining to
the issuance of regulations by the minister in terms of statutory
instrument 185 of 2008. The minister no longer has these powers.
This power now vests within the domain of the ZMC which has not
yet come into existence. The role of the minister under the new
amendment is reduced to a merely consultative one in which the
Commission (which is absent in the present case) only requires
the approval of the minister to make any regulations or proclamations.
The minister cannot however make these regulations.
Section 91of the Principal Act reads:
(1) The Minister may, by regulation, order or notice, prescribe matters that,
by this Act, are required or permitted to be prescribed or that in the opinion
of the Minister are necessary or convenient to be prescribed for carrying out
or giving effect to this Act.
(2) Without derogating from the generality of subsection (1), regulations, orders
or notices made in terms of subsection (1) may provide for—
(a) the form, manner and period in which applications for registration shall
be made;
(b) the form, manner and period in which complaints against public bodies, mass
media services and journalists shall be dealt with;
(c) the amount of annual levy payable to the Fund;
(d) the manner in which moneys held in the Fund may be invested;
(e) the fees to be paid for applications, accreditation and registration and
the manner of their payment;
(f) the form, manner and period in which requests for information from public
bodies shall be made;
(g) the standards to be observed by employees of public bodies when responding
to requests for information;
On the other hand, Section 91 of the Amendment Act reads;
(Regulatory Powers of Minister) of the Principal Act is amended—
(a) in the heading by the deletion of the word “Minister” and the
substitution of the word “Commission”.
(b) by the repeal of subsection (1) and the substitution of—
“
(1)The Commission may, with the approval of the Minister, by regulation, order
or notice, prescribe matters that, by this Act, are required or permitted to
be prescribed or that in the opinion of the Commission are necessary or convenient
to be prescribed for carrying out or giving effect to this Act.”.
The net import of these two sections is crystal clear. The powers that were formerly
vested in the person of the minister under the principal act are now the preserve
of the Commission. The minister, therefore, no longer has the power or capacity
to make an order, notice or prescribe any matters in relation to the registration
and accreditation since Section 91 of the of the Access to Information and Protection
of Privacy Act expressly transfers the regulatory powers of the minister to the
office of the Commission.
It is therefore now clear beyond any reasonable doubt that the directive by the
Minister seeking to review the registration and accreditation fees is legally
defective. The minister made regulations which he is not legally competent to
make. On this ground the regulations are null and void.
Beyond this obvious unlawfulness of the entire process there are also the illogically
steep fees that have been gazetted in the legally invalid regulations. The fees
are prohibitive and punitively high. They can arguably be regarded as being in
violation of the fundamental right to freedom of expression. It is clearly a
hindrance to the free dissemination of information on the part of those journalists
working with foreign media agencies.
The right to free expression on its own without the necessary conditions for
exercising the same right becomes very dim. Arguably a right is meaningless if
it is impossible for the right-holder to exercise it. The restrictive fees imposed
by the regulations are so prohibitive that they may in all probability reduce
the right to an unusable conceptual form.
The law (Statutory Instrument 185 of 2008) is clearly unreasonable and unjustifiable
in a democratic society when viewed in the context of striking a balance between
the interest to be protected (by registration and accreditation) of journalists
and the right sought to be upheld (that of freedom of expression).
It is obvious there can be no fair overall balance as the right sought to be
observed will inevitably suffer at the expense of the narrow parochial political
interests seeking to be preserved.
Rashweat Mukundu
Programme Specialist: Media Freedom Monitoring
MISA Regional Secretariat
21 Johann Albrecht Street
Private Bag 13386
Windhoek, Namibia
Tel: + 264 61 232 975
Fax:+264 61 248016
Mobile: 00 264 813 675 362
E mail rashweat@misa.org, misaalerts@gmail.com
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