| The best Zimbabwe news site on the world wide web |  |
| NEWS |
| FORUMS |
| NEWS ANALYSIS |
| READERS' FORUM |
MIC an unnecessary drain
By
Jonathan Maphenduka
SCREAMING headlines
in two public media editions last week announced the so-called Media
and Information Commission (MIC) proposals for the amendment of the
Access to Information and Protection of Privacy Act (AIPPA).
But it turned out to be an anti-climax, with Tafataona Mahoso pursuing his old hobby horse to claw The Zimbabwean newspaper and those journalists who write for “organisations hostile to Zimbabwe”.
The MIC chairman was also reported as saying he would “welcome” self-regulation among journalists. What he omitted to say is what steps he has taken to remove regulation by law.
But of course we all know that such a move would leave him without a job. His job hinges on using AIPPA, not to promote self-regulation among media practitioners, but to ensure that they walk the streets without jobs after closure of their newspapers.
So no one will
be fooled by this seemingly sudden change of heart. A leopard cannot
change its spots.
But no one knows more than Mahoso just what makes AIPPA unacceptable
to most people in this country.
Who can expect him to propose the removal of sections of the Act that have been used as an iron rod to batter private media businesses to death and, as a measure to ensure their permanent demise, remove vital equipment imported at high cost?
Why is it that AIPPA has no other penalties for offenders but the ultimate sentence of death?
We all know what the man lives for, and why. He knows where his bread is buttered. He tries hardest to outdo authors of AIPPA as though he is anxious to cover up an unknown past.
I have a few suggestions for him to propose their repeal, not just amendment: Why not start with Section 71(1)(a) which ensures victimisation of citizens in the media industry, like it did with publishers of the Weekly Times newspaper after only one edition?
How about scrapping all the clauses that provide only for closure of a newspaper for minor breaches of the Act like twice happened to the publishers of The Daily News and The Daily News on Sunday? All this in shameful disregard of the fact that the courts had acquitted the publishing company of a trumped-up criminal offence.
All the inexplicable vindictiveness has been witnessed even after the Supreme Court absolved the Associated Newspapers of Zimbabwe (ANZ), publisher of The Daily News and The Daily News on Sunday and ordered its application remitted afresh.
The MIC has no shortage of public funds to hire legal advisers to interpret the law accurately, although, by practice, some of them have failed in their hour of duty to the nation.
On March l4 2005, Chief Justice Godfrey Chidyausiku, in the Supreme Court judgment 1115, ruled against the MIC board decision of September 15 2003 which denied ANZ a hearing on its first application for registration.
In an earlier judgment, the chief justice had already declared the applicant to be operating with “dirty hands”, urging the ANZ to submit to the requirements of the law.
The sum of the judgment was simply that there was nothing to prevent it from pursuing its constitutional challenge later, but that it had to first cleanse itself of charges of defying the law, no matter how abhorrent it was to the company.
In response to the Supreme Court advice, ANZ submitted its first application for registration, an admission that defiance of the law did not pay, and an abandonment of its earlier stance of confrontation.
But, instead of recognising this as a welcome change of heart, the MIC board saw the submission of an application for registration as a victory for the board and an admission of weakness by the applicant.
The board, in pursuance of its agenda to frustrate the applicant, disregarded the Supreme Court order to consider the application on its merits or demerits, denying ANZ registration for the second time.
Perhaps saying the board disregarded the court order is not accurate. It would be better to say it was a combination of a disregard of the order and poor legal advice.
This decision of the board was declared an irregularity and the determination was not only set aside by the chief justice as a breach of some rules in law, but the board was ordered to consider the application.
A key point to remember was that contravention of the Act could only emerge “after commencement of consideration of an application by the commission.”
The MIC board had
on September 15 2003 refused the applicant a hearing on the grounds
that the ANZ had a record of operating without a licence.
But there is no provision in the Act which stipulates that “records”
of past infringement of the Act should be used to determine the fate
of an application before the board.
If there was such provision, Trends magazine could have had its registration certificate cancelled for failing to protect the privacy of a television celebrity who complained to the commission and the magazine was compelled to retract a report.
There are two important points to remember.
The one is that the “record” of the breach of the Act was not recognised by the Supreme Court in its judgment of March 14 2005. The other is that the MIC had denied the applicant a hearing in September 2003, and how could the applicant had breached the Act when the board had refused it a hearing?
Because the commission failed to observe Section 69(1), which requires that a breach of the Act “can only emerge after commencement of consideration of an application by the commission”, the Supreme Court set aside the MIC’s ruling of September 15 2003.
The commission missed the whole point of the ruling, which was that the application had to be considered on its merits or demerits “after” its submission for consideration.
The advice later given to the MIC board on July 18 2005 was that it had to focus attention on the “record” of contravening the Act, which, as already explained, the Supreme Court judgment did not uphold.
Even if the Supreme Court judgment on the constitutional case No 3233 of March 3 2004 had declared the ANZ to be operating “with dirty hands”, this record could not be proffered as an excuse to deny the applicant registration in the case where the applicant, armed with a superior court order, was now seeking the right to operate a media service and not to challenge the constitutionality of the Act.
The MIC board on June 16 2005 took the position that there was no legal excuse to continue denying the applicant registration.
This understanding was, however, on July 18 2005, overturned by fresh legal advice that the board was required only to focus on a “record” which is not provided for in the Act, but was also not recognised by the Supreme Court. This led to the debacle of July 18 2005.
The commission has no authority of a criminal court. But has it got authority, like it was led to attempt to do, to confirm or review decisions of a superior court? The zealous manner in which it ignored the decision of the Supreme Court would suggest that it has that ambition.
Questions have been asked why I voted with the rest of the board on July 18 and then proceeded to resign in protest. I have never attempted to conceal the manner in which I voted because there was a compelling, though disappointing, reason why I did so.
The compelling reason was that the board, on that fateful day, was advised by legal experts that determination of the board had to focus purely on the “record” of publishing without a licence after December 31 2002. This could be denied.
The guiding principle in my resignation, however, was that I could no longer be associated with a body whose sole function is the closure of newspapers, and I have explained this in a detailed letter to the Minister of Information and Publicity dated August 18 2005. I do not consider I would be serving my country’s best interest by such association.
I have further explained to him and all those who feel impelled to ask me why I believed the MIC board had erred in its judgment, which appears to have been caused by an obsession to keep the ANZ out forever at whatever cost.
This obsession appears to have clouded the interpretation of Chief Justice Chidyausiku’s judgment, whose message becomes clearer and clearer with the benefit of hindsight that I have found with the patient study of the history of the case.
The letter to the minister was a confidential document intended to highlight how the MIC board had erred in its judgment, and was not an attempt to absolve myself.
After Justice Rita Makarau’s judgment last month, I have decided that it created a completely new dispensation which overtook the confidentiality of the contents of the letter.
I am now, therefore, able to refer to its existence without compromising confidentiality of the subject. Readers who may want an unedited copy are at liberty to ask for it.
An attempt has been made to play up the bit about who was involved in the July 18 decision. This argument, however, is beside the point. The point to remember is that the decision was in error and it has been explained why the board erred.
The effect of that
decision is that it has prolonged the agony and frustration the applicant
has had to endure, let alone the cost to all parties to the case.
The commission, instead of trying to vindicate the decision, should
swallow its pride in shame, recognising its responsibility to the nation.
It is clear to
all that the calibre of the current members of the board leaves a great
deal to be desired. Commissioners should be men and women who command
respect and not scorn. Otherwise it would be better to have no commission
at all.
Maphenduka is a former commissioner on the MIC panel. This article
was originally published in the Fusion Voice newspaper.
JOIN THE DEBATE ON THIS
ARTICLE ON THE NEWZIMBABWE.COM FORUMS
newsdesk@newzimbabwe.com
All material copyright newzimbabwe.com
Material may be published or reproduced in any form with appropriate credit to this website