'Sneezing may be misconduct'

Zimbabwe's information minister Jonathan Moyo

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By Agencies
04/03/04
TWO Supreme Court judges questioned powers Zimbabwe's information minister Jonathan Moyo had given to himself as the court began hearing a constitutional challenge brought by the country's main independent daily, a fierce critic of President Robert Mugabe, against tough media laws which were used to close down the newspaper last year.

The Daily News was shut down by armed police in September for operating without registering with a government commission, a requirement under a law passed by Mugabe shortly after his re-election in March 2002.

The Daily News had refused to register, arguing the law was unconstitutional.

It mounted a challenge to the Access to Information and Protection of Privacy Act in the Supreme Court in September, but the court said the paper was operating illegally and should comply with the law before challenging it.

A day later police forcibly shut down the paper.

Various courts have since then ordered that the paper be allowed to publish again, but it has only sporadically appeared on newsstands. The last edition came out on February 5 this year.

Daily News lawyer Chris Andersen on Wednesday told the five judges sitting as a constitutional court that the paper had now "satisfied the provisions of the order made by this court".

This referred to the fact that the Daily News had applied to the media commission for a licence, but the application was turned down.

He said that sections of the media law, which has been condemned by rights groups here and abroad, contravened the Zimbabwean constitution.

These included the section allowing the government to seize property of a media house that breaks the law.

Andersen argued that members of the Media and Information Commission (MIC) are appointed by the minister of information and could be suspended by him and therefore could not be "independent minds".

In the case of the Daily News it amounted to being "subjected to discipline by a hostile minister", Andersen said.

The Daily News, founded in 1999, has been a thorn in the side of Mugabe's government because of its unrelenting criticism of the regime's policies.

The government has in turn accused the paper of being a front for Western interests.

Government lawyer Johannes Tomana defended the media law as "entirely reasonable in a democratic society."

But two judges questioned the power of the minister to hire and fire members of the commission.

Under cross-examination from Chief Justice Godfrey Chidyausiku and Justice Luke Malaba when the Supreme Court sat as a constitutional court to hear ANZ’s challenge on AIPPA, Tomana could not defend the sweeping powers that the Act gives to the minister, especially under Section 4.

Under this section, the minister can charge a member of the media regulatory body, the (MIC), with misconduct, suspend him, investigate him, prosecute him and even dismiss him without the involvement of any other person.

"The body regulating journalists should be independent from both the government and commercial interests, but with the minister having powers to suspend members of the Commission, how would this be possible?" said Justice Chidyausiku. "How can the minister, who is an interested party, have the powers to charge a member with misconduct, investigate and prosecute him?"

Asked, as a lawyer, if something was not wrong with such powers in a democratic society, Tomana responded: "I have no specific instructions to concede to that," to which Justice Malaba interjected: "You don’t need to have any instructions to concede to this … if the section is unlawful, it is unlawful!

"What makes it even worse is that the Act does not even attempt to define what constitutes an act of misconduct," Justice Chidyausiku said. "The minister would have to decide what constitutes a misconduct and what does not … in this case even sneezing can be defined as misconduct."

The Daily News is the only independent alternative to Zimbabwe's two state-run dailies, The Herald and The Chronicle, and has around one million readers.
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