Commonwealth Parliamentary Association
On the 3rd April 2001 the Zimbabwean Parliament “fast tracked” two controversial bills, namely the Broadcasting Services and Political Parties (Finance) Bills despite strenuous opposition from the Movement for Democratic Change. The Leader of the House, ZANU(PF) Minister of Justice Patrick Chinamasa went to extraordinary lengths to get both bills passed. The previous week he successfully moved for the reduction of the period for the consideration of one of the bills by the Parliamentary Legal Committee from 26 days to 4 days. At commencement of debate Minister Chinamasa moved the suspension of Standing Orders relating to consideration of an adverse report from the Parliamentary Legal Committee and the stages for the consideration of bills. Both actions in themselves were extraordinary: the Legal Committee (comprising incidentally a majority of ZANU(PF) members) had declared that the Broadcasting Act was, in several respects, unconstitutional and the right to debate an adverse report the next sitting day was denied; the latter compressed the debate of all three stages of both bills (normally debated on separate days) into one day. Neither bill concerned matters of immediate national importance – the old Broadcasting Act had been declared unconstitutional 6 months previously and Zimbabwean legislation had allowed foreign funding of political parties for 21 years. Despite all these irregularities and the legitimate objections of the opposition and civil society ZANU(PF) used their majority to ram both bills through the House. This paper now outlines why the MDC objects to both Acts.
Broadcasting Services Act
Zimbabwe, and before it Rhodesia, has endured an absolute broadcasting monopoly by the Zimbabwe Broadcasting Corporation which has been a propaganda mouthpiece of the ZANU(PF) government. Zimbabweans’ rights to freedom of expression, as enshrined in section 20 of the Constitution, have been systematically violated for Zimbabwe’s entire 21 year history in that the ZBC only gives voice to ZANU(PF) views. In 1996 a company Capital Radio (Pvt) Ltd was established with the specific purpose of challenging the constitutionality of section 27 of the Broadcasting Act that gave the ZBC a monopoly. At the end of September 2000 the Zimbabwean Supreme Court declared section 27 unconstitutional and within days Capital Radio commenced broadcasting from a hotel in Harare. Government responded by immediately issuing draconian new Presidential Powers Broadcasting Regulations and seizing Capital Radio’s equipment, effectively closing down the station. The Broadcasting Services Act was passed to replace both the unconstitutional Broadcasting Act and the Presidential Regulations.
The new Act does not pass constitutional or democratic muster for the following reasons:
- Section 4(2) of the Act establishes a Broadcasting Authority Board to govern the authority consisting of “members appointed by the Minister (of Information) after consultation with the President and in accordance with any directions that the President may give him”. In other words the Minister and the President have absolute discretion as to who will sit on the Board. Internationally, such Boards are selected by a Parliamentary body after a thorough and transparent process (advertisements, public hearings etc). In some countries civil society groups themselves are involved in the process. The MDC believes that Parliament should have a say in scrutinising and authorising members nominated by the Executive, which must in turn take into account the use of civil society.
- Section 4(3) of the Act pays lip service to the concept of representativity. It states that the Minister “shall endeavour to secure that members are represented of groups or sectors of the community”. However by not defining these groups or sectors it remains up to the discretion of the Minister to decide which groups or sectors he will include. In international legislation, such Boards have to be representative – viewed collectively – of the entire population. The MDC believes that the Act should read “that the members are representative of ALL GROUPS OR SECTORS OF THE COMMUNITY”. One of the most draconian aspects of the Act is contained in Section 6. It states that the Minister shall be the Licensing Authority. This clause makes the purpose crystal clear: the Minister and no one else is in charge. Only the Minister has the ultimate authority to license broadcasters. The MDC believes that a publicly and transparently appointed Broadcasting Authority, representative of all Zimbabweans should be the Licensing Authority.
- Section 8(1) and (2) states that licenses shall be issued “only to individuals who are citizens of Zimbabwe resident in Zimbabwe … or to a body corporate in which controlling interests is held by citizens of Zimbabwe resident in Zimbabwe.” “Controlling interests” is defined as “all” or “one hundred per centum” of securities or shares. The MDC believes that it is acceptable that broadcasting in a country should be controlled by nationals of that country. This clause, however, aims to disqualify any foreign co-ownership in broadcasting and thus makes foreign investments in this industry impossible. The prohibition of the ownership of shares by Zimbabwean non-residents is unconstitutional as it violates their rights to property and expression. Whilst in other countries there are limitations on foreign ownership, “controlling interests” is understood to mean what it says: the majority of shares, not all shares. In the Zimbabwean context foreign investment is indispensable especially to establish capital intense and highly technical private television stations and digital services.
- Section 9(1) restricts national broadcasting. It states that only one other license, other than that provided to the State controlled Zimbabwe Broadcasting Corporation, shall be issued to provide national free-to-air radio broadcasting services and television broadcasting services. This clause is a direct violation of the Constitution and is designed to keep any competition to the ZBC as limited as possible. The limitation is unwarranted. There are many frequencies and the MDC believes that the number of frequencies made available for licensing must be the maximum possible.
- One of the more bizarre provisions of the Act is contained in Section 9(2) and (3) which restricts signal carriers. It says that “only one signal carrier license shall be issued to a person other than a public broadcaster” and “with the exception of a public broadcaster, a broadcasting license and a carrier license shall not be issued to the same applicant.” Once again this is designed to centralise transmitting signal which undoubtedly is intended to be used as a means of control. It is also a totally impractical provision for local commercial community radio stations which have their own small transmitters. In terms of this the holder of the broadcasting license will always be dependent on the holder of the carrier license to ensure the free flow of information. The provision is unconstitutional as it infringes on people’s rights to freely express themselves through broadcasting without hindrance. The MDC believes that the provisions should be deleted as all broadcasters should be allowed to transmit their own broadcast freely.
- Section 10(6), (8) and (10) provides for the holding of a commission of enquiry for the purposes of determining applications for licenses. In terms of this provision the authority “may recommend that the Minister issue or refuse” a license; on receiving the “recommendation” the “Minister may issue or refuse” a license. The commission of enquiry process is not sufficiently representative, public and transparent and will accordingly materially infringe rights to freedom of expression. In addition since the authority’s recommendations do not need to be followed by the Minister it does not matter how good that process is. Ultimately the Minister has absolute say in determining who should have a license. The MDC believes that a public and transparently representative Broadcasting Authority alone should have the right to issue or refuse licences. In addition the MDC believes that all applicants should have the right, enshrined in the Act, to have the High Court review any decision made by the Authority.
- Section 11 and the Fifth Schedule of the Act set out terms and conditions of a license. It states that a license shall be issued subject to, among others, “such terms and conditions as the Minister may reasonably determine after consultation” with the Broadcasting Authority. License holders also are obliged to “broadcast, without charge, such items of national interest as a specified by the Minster” and allow “persons authorised by the Minister” to have “access to and control over the licensees broadcasting facilities” in times that the Minister regards as an emergency. This clause gives the Minister unacceptably wide powers to impose unspecified conditions even beyond those stipulated in the regulations. It also forces license holders to broadcast material they may not wish to, at no charge, and allows the Minister to take over the property of private businesses as and when he feels there is an emergency requiring this. It is the MDC’s view that this clause should be deleted in its entirety as it is unconstitutional and an unnecessary infringement in the freedom of speech of license holders. It gives far too much power to a Minister who is not accountable to a public, transparent and representative body.
- Section 11(5) has a particularly insidious provision compelling license holders to make available to Government one hour of its services per week “for the purpose of enabling the Government of the day, at its request, to explain its policies to the nation”. Once again this clause infringes on editorial independence of commercial or community broadcasting and is unconstitutional.
- Section 11(8) prohibits the employment by a licensee of a foreigner or non-resident Zimbabwean without authorisation “by the Minister”. Zimbabwe has never had independent broadcasting and accordingly has very few broadcasters and technicians with suitable skills to establish new radio and television stations. Once again it gives the Minister unacceptably wide powers to determine who will work for broadcasting companies. It also infringes on the right to freedom of movement of non-resident Zimbabweans. By making it difficult for broadcasters to find technicians it infringes on broadcasters’ rights to freedom of expression.
- Section 11(1)(b) states that a community radio or television station “shall not broadcast any political matter” which is defined in the Fifth Schedule as “any political matter, including the policy launch of a political party”. This clause aims at restricting community radios (which are not so easy to monitor) to non-political programming only. The definition is also extremely loose and arbitrary. Community matters by their very nature, are often “political” matter. Once again the provision is unconstitutional as it infringes on the rights to freedom of expression of communities that have radio stations.
- Section 12(2) and (3) limits the period of validity of a commercial license to two (2) years and that of a community license to one (1) year. There is no doubt that this is designed as a further method of control. The clause is prohibitive. No business will invest millions of dollars in equipment and training for such a short period, especially when the further licensing is subject to such rigid control by one person. This provision is clearly designed to inhibit broadcasters. The MDC believes that a commercial license should be issued for at least five (5) years, subject to compliance with reasonable license conditions. Likewise a community license should be issued for at least three (3) to four (4) years.
From the above it can be seen that the Broadcasting Services Act is draconian, unconstitutional and clearly designed to perpetuate ZANU(PF)’s control over the broadcasting of information in Zimbabwe. Indeed the Act is so riddled with so many patently undemocratic measures it will have to be repealed in its entirety and replaced by a new Act which accords with international standards. The MDC believes that there should be an independent regulatory authority which is responsible for allocating frequencies and ensuring that broadcasters comply with the laws of the country and do not, for example, allow hate speech and material detrimental to the interests of children to be disseminated. The present Act merely seeks to perpetuate the interests of a totalitarian regime.
Political Parties Finance Act
The MDC is in full agreement with the Political Parties (Finance) Act save for Section 6 of the Act which prohibits foreign funding. To that extent the remainder of the Act is irrelevant for the purposes of this. Section 6 of the Act states that no political party shall accept any foreign donation whether directly from a donor or indirectly through a third person. A foreign donation includes a donation made by a Zimbabwe citizen who however is non-resident. Non-citizens who are resident in Zimbabwe are entitled to make donations to a political party. The MDC has two (2) principal objections to this provision.
- Zimbabwe is a fledgling democracy and has an extremely weak economy. As a result it is extremely difficult for political parties to secure sufficient funding within Zimbabwe to purchase the necessary equipment and to develop rational policies. Indeed it is ironic that ZANU(PF) has sought to prohibit foreign funding for it is a party that has enjoyed substantial foreign funding ever since it was established as a political party in the early 1960’s. Indeed over the years ZANU(PF) has benefited from funding from people and organisations as diverse as Tiny Rowland and the Chinese communist party. The MDC accepts that there needs to be some control on foreign funding lest a political party is bribed into adopting a foreign agenda which is not in the interests of the Zimbabwean people. However the MDC believes that it is hypocritical of ZANU(PF) to ban foreign funding at this juncture, a move which is clearly designed to hamper the growth of a young political party such as the MDC. The MDC believes that political parties should be required to present to Parliament annual accounts audited by an international firm of Chartered Accountants which should indicate the precise amount of foreign and local donations and to what purposes such donations have been applied. Furthermore the MDC would have no objection to a reasonable limit being placed on the amount of money that could be received from any single donor. These proposals were put before Parliament but were rejected by ZANU(PF). As things stand the Political Parties (Finance) Act make no provision for the disclosure of audited accounts to Parliament. Furthermore given ZANU(PF)’s selective application of the law it seems extremely likely that ZANU(PF) will continue to receive foreign funding knowing that there is no prospect of the ZANU(PF) appointed Attorney General ever prosecuting ZANU(PF) for such breaches of the Act. Indeed within the last few weeks a report has appeared in the press in Zimbabwe, which has not been denied by ZANU(PF), indicating that Mr Gaddafi, the president of Libya has donated some nine hundred thousand United States dollars (US$900 000.00) to ZANU(PF). If this is the case the prohibition of foreign funding is a method clearly designed to frustrate the development of the Movement for Democratic Change and other opposition parties.
- In any event the provision prohibiting Zimbabwean citizens who are non-resident from donating to a political party of their choice is unconstitutional. Section 21 of the Constitution of Zimbabwe states that no citizen shall be hindered in his freedom of assembly and association including his right to form or belong to a political party of his or her choice. Inherent in the right to form a political party must be the right to fund a political party. When ZANU(PF) rushed the Political Parties (Finance) Act through Parliament it argued that there was similar legislation in America and other democratic countries. Whilst it is correct that America prohibits foreign funding its legislation does not prohibit American citizens who are resident abroad from funding political parties. Indeed I do not know of a single democratic country that prohibits its citizens from funding a political party of its choice. One of the ironies of this legislation is that dictators such as Mengistu, who are resident in Zimbabwe as guests of President Mugabe and ZANU(PF), are entitled to fund a political party whereas Zimbabwean citizens who are outside the country, many of whom are economic refugees, are denied the same right. Once again the MDC believes that this is a cynical measure introduced by ZANU(PF) which knows that most Zimbabwean citizens who have been forced to seek work outside the country are unlikely to support ZANU(PF) and as a result the measure is designed once again to inhibit the development of opposition political parties.
Zimbabwe is now lumbered with these two pieces of legislation. Legal proceedings have been instituted to challenge both the Broadcasting Authority Act and Section 6 of the Political Parties (Finance) Act and it is hoped that within the course of the next few months the Supreme Court of Zimbabwe will maintain its fine reputation for independence and strike down both Acts as being ultra vires the Constitution of Zimbabwe.
The Honourable David Coltart MP
Shadow Minister of Justice
MOVEMENT FOR DEMOCRATIC CHANGE ZIMBABWE