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Freedom Of Information Law A Soft Attempt On Access To Information.

The freedom of information Bill which became a law yesterday, is undoubtedly a leap foward towards media reform, but lacks great deal on striking a balance between access to information and freedom of the media.

The Minister of Information, Publicity, and Broadcasting Services Monica Mutsvangwa announced that her ministry was working to replace AIPPA, which was signed into law by then President Mugabe on 15 March 2002, with a Data Protection law, a Freedom to Access Information law, and a law regulating the Zimbabwe Media Commission.

In Zimbabwe, freedom of the media is guaranteed by Sections 61 and 62 of the Constitution, which protects the right to free expression, media freedom and access to information, hence the need to repeal AIPPA as it was not inline with the Zimbabwean constitution.

The major reforms that media has been demanding from  Access to Information and Protection of Privacy Act (AIPPA) were on decriminalization of journalism and opening up of accountable and transparent avenues to information.

Amendments to AIPPA were signed into law on 13 October 2003. The main importance of the amendments for current purposes was twofold.

First, the requirement for three of the five members of the Media and Information Commission to be nominated by journalists’ or media associations was removed. Second, the amendments tightened up provisions relating to the publication of false news, which had already been declared unconstitutional by the Supreme Court in May 2003.

The AIPPA law was providing a legal framework for the access and conduct of requesting information from public bodies and privacy as well as for the regulation of mass media by the establishment of a Media and Information Commission.

The then Chairman of the Parliamentary Legal Committee, Dr Eddison Zvobgo, described the original version of the Bill as “the most calculated and determined assault on our (constitutional) liberties, in the 20 years I served as Cabinet Minister”.

He went on to assail the constitutionality of 16 provisions in the Bill. The version that was finally adopted differed only slightly from the version that was subjected to such serious criticism by a Parliamentary Committee dominated by members of the governing party.

According to the World Press Freedom Index of 2017-2018, Zimbabwe is ranked 126 out of 180 countries, with the beating, wrongful arrests and threats against journalists being cited.

Some of the more problematical aspects of AIPPA from the perspective of freedom of expression and of the media include the following:

  •  It allocates very substantial regulatory powers over media outlets and individual journalists to the Media and Information Commission (MIC), a body which is subject to extensive direct and indirect government control.
     All media outlets and any business disseminating media products must obtain a registration certificate from the MIC.
     Accreditation must be obtained from the MIC before anyone may work as a journalist, effectively a form of licensing.
     Foreigners and non-resident Zimbabweans are precluded from owning shares in Zimbabwean media outlets, although they may be minority shareholders in companies which own media shares.
     Local and foreign media outlets may only employ Zimbabwean citizens or permanent residents.
    AIPPA also includes two sections limiting the content of what may be published, section 64, titled “Abuse of freedom of expression”, and section 80, titled “Abuse of journalistic privilege”.
  • These sections are now effectively identical in terms of the limits they impose on what may be published or broadcast. However, in the original version (before the October 2003 amendments), section 80 was broader and criminalised, among other things, the publication of ‘falsehoods’, with the possibility of imprisonment for up to two

There is a variety of exemptions where information can always be withheld ranging from deliberation of the cabinet, details of policy advice to national security. However, whether information regarding to national finances,  heritage sites, economic interests, public interests and governmental relations should be disclosed, is subject to the public office’s discretion. This reverses the openness approach where public interest is considered being a driving factor for disclosing documents.

In terms of entitlement, AIPPA stated that only citizens of Zimbabwe, permanently residents or holders of temporary employment, residence permit or students permit are eligible to make a request. Foreign nationals and agencies as well as unregistered mass media are excluded. 

This however contrasts with chapter four of the African Commission on Human and Peoples’ Rights stating that everyone should have the right to access information held by public bodies Declaration of Principles on Freedom of Expression in Africa.

The initial draft went through a long examination and multi –party amendment process by Parliament and especially through the relevant portfolio committees which is chaired by an opposition member from the MDC Alliance

In a statement Minister of Information, Publicity and Broadcasting services Senator Monica Mutsvangwa said the coming of the act marks a notable milestone in government media legislative reform programme, but however the bill is more focused with access to information rather than with freedom of expression so its title is a bit misleading.

According to the bill it is not clear to what extend the bill will permit access to information held by private bodies, which may hold a great deal of information. Part III of the Bill deals only with access to information held by public bodies, not private ones, but clauses 22 and 24 set out circumstances in which private entities can refuse to allow access to their information.

“A private entity is similarly protected under this clause .Exceptions to this protection include consent by the third party, disclosure necessary to facilitate accountability, “says Part III clause 22.

“Under clause 24 disclosure of information is prohibited where disclosure is likely to endanger the life or safety of any person .An information officer may in his/her discretion, refuse a request whose disclosure might be inimical to the security of any property or the safety of the public, “clause 24.

Furthermore there is no provision requiring public bodies to publish information pro –actively beyond a vague statement in clause 5 that public bodies must have written “information disclosure policies”.

The bill also imposes duties of disclosure on “holders of statutory office but does not define what that term means .It would certainly cover the Register-General, for example it may not cover constitutional office holders such as the commissioner-general of police, the commander of the defence forces and the auditor general.

Another aspect that definitely show that bill is a mirror of the repeal AIPPA is the fact that while public bodies should not have a general discretion to refuse access to information, as they have under AIPPA, nonetheless the grounds on which the bill allows access to be refused should be extended, for example ZIMSEC should be obliged to disclose answers to exam questions which is merely covered in the first schedule to AIPPA.

The Bill is a step towards open government, though it still needs a great deal of refinement and further consideration.

Open government depends more on the attitude of government officials than it does on legislation.

In 2002, the African Commission on Human and Peoples’ Rights adopted the Declaration of Principles on Freedom of Expression in Africa, which states:

Freedom of Information

  1. Public bodies hold information not for themselves but as custodians of the public
    good and everyone has a right to access this information, subject only to clearly
    defined rules established by law.
  2. The right to information shall be guaranteed by law in accordance with the following
    everyone has the right to access information held by public bodies;
    everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
    any refusal to disclose information shall be subject to appeal to an
    independent body and/or the courts;
    public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;
    no one shall be subject to any sanction for releasing in good faith
    information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society; and secrecy laws shall be amended as necessary to comply with freedom of information principles.
  3. Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

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