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VERITAS DRAFT

Media Practitioners Bill, 2010

Memorandum

Freedom of expression and of the Press is an essential pillar of any modern democratic society, because citizens must be able to discuss national issues freely, and to read and hear differing opinions. If a government is not open to scrutiny by a free Pressit will become complacent, autocratic and despotic. At the same time, however, Press freedom must be subject to some restraint in order to protect legitimate interests such as personal privacy, legitimacy and the right to a fair trial.

Zimbabwe is a party to at least two international instruments drawn up in Africa, which emphasise the importance of freedom of expression. The first is the Declaration on the Principles of Freedom of Expression in Africa, approved by the African Commission on Human and Peoples’ Rights in October, 2002, in Banjul, the Gambia. The second is the SADC Protocol on Culture, Information and Sport, which was signed at Blantyre, Malawi, in August 2002.

The ACHPR Declaration states the following:

  • Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.
  • Freedom of expression imposes an obligation on the authorities to take positive measures to promote diversity, including pluralistic access to the media and other means of communication.
  • Any registration system for the print media must not impose substantive restrictions on freedom of expression.
  • A widely accessible public complaints system should be available in accordance with established rules and codes of conduct agreed between all stakeholders.
  • Effective self-regulation is the best system for promoting high standards in the media.

The SADC Protocol states that member states must take necessary measures to ensure the freedom and independence of the media, and urges member states to encourage the establishment or strengthening of codes of ethics by various sectors of the media.

This Bill will attempt to foster Press freedom by allowing media practitioners (journalists, broadcasters and publishers) wide scope to regulate their own professional conduct, while affording remedies to people who have been injured by an abuse of Press freedom. More particularly, it will give effect to resolutions passed at a Media Conference held at Kariba in May 2009:

  • It will emphasise the importance of freedom of expression, but will give the Zimbabwe Media Commission power to promote good ethical practices in the media.
  • It will establish a Media Council, which will be a professional organisation representing media practitioners (i.e. journalists, broadcasters and publishers). Media practitioners will not be compelled to join it, however. This Media Council will bea statutory re-enactment of the existing Media Council of Zimbabwe which was established as a voluntary organisation in 2007.
  • The Bill will allow (but not compel) media practitioners to provide the Zimbabwe Media Commission with their particulars, and will accord privileges to practitioners who do so.
  • It will encourage media practitioners, through the Media Council, to formulate codes of practice governing their conduct.
  • It will allow the Zimbabwe Media Commission to formulate codes of conduct to be followed by State-owned media and the practitioners who work for such media.
  • It will establish a committee through which the Media Council will deal with complaints against the media.

In more detail, the individual provisions of the Bill are as follows:

Part I

This Part deals with preliminary matters. Clause 1 sets out the Bill’s short title, and clause 2 will define terms that are used throughout the Bill. The term “media”, it should be noted, is broad enough to cover newspapers and all printed publications, as well as radio and television broadcasting and communication through the Internet. The term “media practitioner” is correspondingly wide, covering journalists, broadcasters and publishers.

Clause 3 sets out principles that must guide everyone who administers or interprets the Bill. Essentially, as stated in subclause (1), the fullest scope must be given to freedom of expression while unjustified attacks on reputations and invasions of privacy are to be avoided. Subsidiary principles are stated in subclause (2): for example, that robust political debate is to be encouraged; that politicians must expect their private lives to be probed in order to determine their fitness for office; that so far as possible media practitioners must be free to regulate their own profession; that publicly-owned media must be impartial in their coverage of current events; and that the media must not incite violence or advocate hatred based on such considerations as nationality, race, tribe or religious belief.

Part II

The main functions of the Zimbabwe Media Commission are set out in section 100P of the Constitution, but clause 4 will give the Commission some additional functions to enable it to administer the Bill. In particular, it will be enjoined to facilitate the issue of work permits to foreign journalists, and will be empowered to promote and enforce good practice and ethics in the media and to deal with complaints against the media. It will also have the specific powers set out in the Schedule to the Bill. Clause 5 will require the Commission to be fair, accountable and open when exercising its functions; in particular it will have to give a hearing to people before taking decisions that affect them, and will have to give reasons for its decisions. Clause 6 will refer the readers to the Second Schedule to the Bill, which deals with such matters as the Commissioners’ conditions of service and tenure of office, the Commission’s staff and its finances. Under clause 7 the Commission will be obliged to provide Parliament with reports on its activities, and in those reports it will be able to notify Parliament of any obstructiveness it has encountered on the part of government officials. Clause 8 will indicate how contracts and other documents are to be signed on the Commission’s behalf, and clause 9 will allow the Commission to conduct its business even if there are vacancies in its membership. Clause 10 will give the Commission an indemnity for things it does under the Bill in good faith and without negligence.

Part III

This Part will establish a Media Council of Zimbabwe as a professional body for media practitioners.

Under clause 11, the Media Council will have all the powers of a corporate body such as a company: it will be able to own property, employ staff and provide services to media practitioners.

All media practitioners in Zimbabwe will be entitled to join the Media Council as full members, and the Council will be able to accept people who are not media practitioners as non-voting associate members. Membership of the Media Council will not be compulsory for journalists or other media practitioners (see clause 12).

The Media Council’s objects and functions are set out in clause 13. They are primarily to defend freedom of the press and to uphold the interests of all media practitioners, while at the same time promoting high ethical and professional standards in the media.

The Media Council will be managed by a Board established under clause 14, consisting of a chairperson and deputy chairperson and five other persons, none of whom will be media practitioners, together with seven other members of whom one will be a lawyer and the othersix will be media practitioners. All the Board members will be elected at an annual general meeting of the Society, though the Board will have power to co-opt people to fill casual vacancies in its membership. Qualifications and disqualifications for membership of the Board are set out in clause 15. In terms of clause 16, Board members will serve for three years, though co-opted members will serve for the remainder of the term of office of the elected member whom they replaced. It will be possible for members to resign, and they will be subject to a “recall” vote at a general meeting of members of the Media Council. The procedure to be followed at Board meetings is set out in clause 17, and under clause 18 the Board will be able to appoint committees to help it exercise its functions. (One of these committees, the Media Complaints Committee, is dealt with specifically in Part VI of the Bill.) The Board and its committees will be obliged to keep minutes under clause 19, and the minutes will have to be forwarded to the Commission for its information.

Under clause 20, the Board will keep a register of its members, which will be open to public inspection, and will have to issue its members with a certificate stating that they are enrolled on the register. It should be noted that a register or roll of members is an essential element of every profession, and it can be further noted that, as stated in clause 12, neither membership of the Media Council nor enrolment on the register will be necessary to enable a media practitioner to practise as such.

Clause 21 deals with the convening and conduct of general meetings of members of the Media Council, and the business at such meetings. Generally, these matters will be covered in the Council’s by-laws.

Clause 22 will give general meetings of the Media Council power to make by-laws on a wide range of subjects covering the Council’s internal affairs as well as the formulation of codes of practice and the investigation of complaints against the media. By-laws will sent to the Minister for publication in the Gazette, but the Minister will have no power to approve or veto them.

Under clause 23 the Board will be able to act even if there are vacancies in its membership, and under clause 24 the Media Council and the Board will be exempted from liability for certain acts done in good faith and without negligence.

Part IV

In terms of this Part, the Media Commission will be provided with the names and other particulars of media practitioners operating in Zimbabwe.

Under clause 25, the Board of the Media Council will have to supply the Commission with the names and other particulars of its members, as reflected in its register, though members will have the right to refuse to allow their particulars to be supplied to the Commission. The Commission will have to provide all the Council’s members whose names have been supplied to it with a card or certificate stating that they are media practitioners.

Under clause 26, media practitioners who are not members of the Media Council will be able (but not obliged) to supply the Commission with their particulars, and if they do so they will be given a card or certificate stating that they are media practitioners.

Journalists whose names and particulars have been supplied to the Commission will enjoy certain privileges under clause 27: they will be entitled to attend parliamentary sittings and meetings of local authorities, and to be informed in advance of the agenda, and they will have the right to attend press conferences convened by politicians.

Clause 28 will make it clear that people may practise as media practitioners even if their names and particulars have not been supplied to the Commission under this Part.

Part V

Under clause 29 the Media Council will be given responsibility for formulating codes of practice regulating its members’ conduct, and for ensuring that such codes are properly observed. These codes will be enacted as Council by-laws under clause 27. The Commission will be required to assist the Council to formulate its codes, but the Commission will have no power to dictate their contents.

Clause 30 will give the Commission itself responsibility for formulating codes of practice to be followed by State-owned media; when formulating them it will have to consult the media practitioners concerned. These codes will require the public (i.e. State-owned) media to be fair and impartial (see clause 31(2)(h)).

The matters that can be dealt with in codes of conduct, whether formulated by the Media Council or the Commission, are set out in clause 31. Generally, codes must not restrict the right of media practitioners to practise their profession, and they must be consistent with the general principles of press freedom set out in clause 3 of the Bill.

Under clause 32 the Commission will have power to extend the application of the Media Council’s codes of practice to media practitioners who are not members of the Council. Before doing so, however, the Commission will have to give public notice and invite representations from the media practitioners concerned and from other interested parties.

Part VI

This Part deals with the investigation and settlement of complaints against the media and media practitioners.

Under clause 34 the Media Council will establish a committee to be called the Media Complaints Committee, which will be responsible for dealing with misconduct on the part of the media. The committee will be headed by a lawyer who is a member of the Council’s Board, and two of the other members will be members of the Board who represent the general public, while one will be a non-practising media practitioner. Both the Council and the Commission will be encouraged to publicise the existence and functions of the Committee.

Clauses 35 and 36 will give the Media Complaints Committee power, on its own initiative or on reference from the Commission or on receipt of a complaint, to deal with publications or broadcasts of “injurious allegations” (i.e. false allegations or allegations that unlawfully infringe a person’s dignity, reputation or privacy) and with breaches of codes of practice. It should be noted that the decision whether or not to take action in such cases will rest with the committee: it will not be obliged to take action when the Commission refers a matter to it, and may reject a complaint as frivolous or vexatious or on the ground that the complaint should have been settled amicably or that the complainant has instituted legal proceedings to resolve the complaint: see clause 36(3) (proviso)). Before taking action the committee will have to invite representations from the person alleged to have published or broadcast the injurious allegation or to have committed the breach, as the case may be (clause 35(2) and 36(3)(b)). Once the committee has done that it will be empowered to conduct an investigation and inquiry, for which purpose it will have the same powers to summon and question witnesses as commissioners have under the Commissions of Inquiry Act [Chapter 10:07] (see clause 37). The parties — i.e. the complainant and the person responsible for the alleged injurious allegation or the breach — will be entitled to be represented by lawyers at any such inquiry: see clause 37(4). Having conducted its inquiry the committee will then decide whether or not an injurious allegation has been published or a breach of a code of practice or of the Act has taken place; if the committee decides it has, the committee will forward its decision to the Commission together with its recommendation as to the steps the Commission should take in the matter (clause 37(5)).

Under clause 37(7) the Media Complaints Committee will be enjoined to settle complaints through conciliation or mediation whenever it is appropriate to do so.

If the Media Complaints Committee informs the Commission that an injurious allegation was published, or that there was a breach of a code of practice or of the Act, the Commission (not the committee) will have power under clause 38 to make a variety of orders against the person responsible for the injurious allegation or breach. For example the responsible person may be ordered to publish an apology, correction or retraction, or to desist from repeating the allegation or breach, or to pay a fine. If the responsible person is a journalist, the Commission may cancel or suspend his or her privileges under clause 27, and if he or she is a licensed broadcaster, the Commission may in serious cases prohibit him or her from broadcasting for up to 30 days. Before imposing any such penalty, however, the Commission will have to give the responsible person an opportunity to make representations and, if the Commission conducts a hearing, the responsible person and any complainant will be entitled to legal representation and the hearing will have to be open to the public.

Orders of the Commission, if registered with the High Court, will be enforceable in the same way as a judgment of that court (clause 39). In addition, contraventions of the Commission’s orders will be criminally punishable (clause 40).

Records of the Media Complaints Committee will be open to public inspection at the Commission’s offices (clause 41(2)).

Part VII

This Part deals with general matters.

Decisions of the Board of the Media Council, and those of the Media Complaints Committee, will be appealable to the Commission, and the Commission’s decisions under the Bill will be appealable to the Administrative Court. See clauses 42 and 43. Decisions of the Administrative Court on any such appeals will themselves be appealable to the Supreme Court on a point of law, in terms of the Administrative Court Act.