Bill-watch-legislative-reform-series

media_newsBill Watch - Legislative Reform Series[ No.1. AIPPA]
No 1. Access to Information and Protection of Privacy Act [AIPPA]
Part 1. Should AIPPA be Repealed?
AIPPA is divided into three parts:


1. the first part deals with access to information;

2. the second prohibits misuse of databases containing personal information;

3. the third imposes restrictions on the press and journalists this is the part that has incurred the most odium.

1. Access to information

This part of AIPPA purports to give everyone a right of access to records [i.e. recorded information] held by the government and public bodies, but the right is severely restricted:

> a vast area of information is excluded from disclosure. For example the following cannot be disclosed:

> advice and recommendations given to the President or to Ministers or public bodies [section 14];

> information that would prejudice law enforcement processes in any way [section 17(1)(a)] or compromise the effectiveness of investigation techniques, e.g. a defence lawyer cannot obtain correct information before a trial if such information might weaken the state case.

> information that would prejudice the interests of the country [section 17(1)(b)] an extremely wide term that would allow virtually any information to be withheld;

> information whose disclosure may affect relations between the government and a local authority [section 18(1)(a)(i)] so the Minister of Local Government could refuse to disclose his reasons for appointing certain councillors to local authorities;

> information that may result in harm to the planning, financial or economic interests of the State or a public body so information that may reveal mismanagement or fraud in the Government or parastatals may be withheld.

> the procedures for disclosure are unnecessarily cumbersome and lengthy:

> a request for information must be in writing, giving adequate and precise details of the requested information [section 6] so one cannot expect to get information by simply phoning a Ministry;

> a response to a request for information can be delayed for 60 days or, with the consent of the Zimbabwe Media Commission [ZMC], for even longer [section 8 & 11];

> anyone aggrieved by a public officers refusal to disclose information can request the ZMC to review the refusal under Part X of the Act. There is no time-limit for the ZMC to complete a review, and even if the ZMC does decide that the information must be disclosed, the public officer has a further appeal to the Administrative Court [section 52B]. So in practice information may never be obtained or obtained too late to be of any practical use.

> above all, there is no general provision requiring the government to be open and transparent and to assist the public by publishing information regularly and making it widely accessible e.g. land reports, etc.

Should this part of AIPPA be repealed?

To measure the effectiveness of this part of the Act, one only has to ask the question: has Zimbabwe become a more open society in the seven years since AIPPA was enacted? The obvious answer is: no, it hasnt. Therefore this part of AIPPA has not served its purpose and should be repealed. It should be replaced by another Act giving a real right to information held by government, making access to that information easier, and compelling the government to publish information and to keep the public informed about its processes and decisions.

2. Protection of privacy

The next part of AIPPA restricts the collection of personal information and the uses to which personal information collected may be put. Essentially this part is intended to control the misuse of computerised databases of personal information collected by bodies such as the government, parastatals and insurance companies. The term public body is widely defined to cover the government, statutory bodies and various professional bodies, but it does not include commercial organisations unless they are public companies.

Should this part of AIPPA be repealed?

This part of AIPPA is inadequate:

> It prevents the misuse of computerised databases but does not deal generally with invasions of privacy, for example, by journalists.

> The misuse of databases is not yet as serious a problem in Zimbabwe as it is in other countries. But world wide it is a serious problem and the provisions of this part are outdated.

Provision for protection of privacy should be far more carefully thought out and a balance found between the need to reveal information for the public good and an individuals right to privacy [or this could be protected in the new Constitution]. This should be a separate piece of legislation.

3. Control of the media

Under this part of AIPPA:

> no one may operate a mass media service, e.g. a newspaper or a broadcasting station, in Zimbabwe unless it has been registered by the ZMC [section 66(1)] and no mass media service or news agency may employ a journalist unless he or she has been accredited by the [sections 78(4) & 79(7)].

> only citizens are allowed to own mass media services [section 65].

> only citizens and permanent residents can be employed as journalists [aliens and non-residents may be accredited for up to 60 days) [section 79(3) & (4)].

> journalists and owners of mass media services who publish false information can be imprisoned for up to two years, in the case of journalists [section 80] or three years in the case of mass media owners [section 64].

> journalists and mass media services can be disciplined and stripped of their accreditation or registration by a media council consisting entirely of persons appointed by the Zimbabwe Media Commission [Part VIIA].

Should this part of AIPPA be repealed?

The arguments for retaining it boil down to this: left to themselves, news media and journalists are intrusive and abusive and are disrespectful towards such hallowed national institutions as the President. They are also liable to invade the privacy of people who appear in the public eye. They must therefore be controlled by the government. The arguments for repealing this part of AIPPA are:

> The Constitution guarantees freedom of expression, which includes freedom of the press. Without that freedom, a democratic society cannot exist.

> No public officer, from the President through the Governor of the Reserve Bank down to the must junior clerk, should be immune from criticism and questioning by the press. Even unfair criticism is beneficial to the democratic process, so long as the person who is subjected to criticism is allowed to rebut it.

> A free, vibrant and questioning press is so vital to democracy that any restrictions on it should be no more than are needed to prevent egregious abuses such as intrusions into personal privacy.

> AIPPA goes far beyond anything that is needed to prevent abuses. There is no justification whatever for banning mass media services if they are not registered, or for preventing journalists from working if they are not accredited. The arrest and prosecution of journalists for publishing false information has a chilling effect on investigative journalism. [It should be noted, incidentally, that though many journalists have been arrested for this offence, no journalist has yet been convicted of it.]

And there is a further overwhelming argument: AIPPA is widely regarded as a cornerstone of the repressive Zimbabwean State. Its repeal will send a clear signal to Zimbabweans and to the world that the new government has turned decisively from the past and is leading the country towards an open, tolerant democracy.

Not enough to repeal AIPPA but also clauses in Criminal Code

AIPPA is not the only statute that imposes undue restrictions on journalists. In the Criminal Law Code:

Section 31 makes it an offence punishable by an unlimited fine or imprisonment for a period not exceeding twenty years or both, if any person, whether inside or outside Zimbabwe publishes or communicates to any other person a statement which is wholly or materially false with the intention or realising that there is a real risk or possibility of (i) inciting or promoting public disorder or public violence or endangering public safety; or (ii) adversely affecting the defence or economic interests of Zimbabwe; or (iii) undermining public confidence in a law enforcement agency the Prison Service or the Defence Forces of Zimbabwe; or (iv) interfering with, disrupting or interrupting any essential service. NB this is an offence whether or not the publication or communication results in one of those consequences, and even if the person who publishes the statement does not know it is false.

Section 33 criminalises the making of false statements that may engender feelings of hostility towards the President, and the making of abusive statements about the President. Again, the person who makes the statement does not have to know that it is false.

Section 96 makes criminal defamation an offence punishable by an unlimited fine or imprisonment for up to two years or both. The offence consists of the publication of intentional false statements causing, or with the potential to cause, serious harm to another persons reputation. The criminalisation of defamation is widely regarded as unacceptable as the civil law of defamation gives sufficient protection. The African Commission of Human and Peoples Rights Special Rapporteur on Freedom of Expression has recently reiterated that criminal defamation laws in African states should be repealed.

These sections of the Criminal Code should be repealed at the same time as AIPPA is repealed. [The first two of these sections had their parallels in the Rhodesian Law and Order Maintenance Act which was carried over by the Zimbabwean government until 2002.]

Note: There is a current appeal to the Supreme Court for section 31 of the Criminal Code to be struck down for inconsistency with the constitutional right to freedom of expression. Two Zimbabwe Independent journalists, and the newspapers owners, currently face trial under this section. They have requested the magistrates court to refer their case to the Supreme Court for constitutional adjudication, describing the section as too nebulous and the penalty oppressive and savage. Their lawyer pointed out that this section can be traced back to the very similar section in the notorious Law and Order (Maintenance) Act a section struck down by the Supreme Court in the 2000 Mark Chavunduka case for inconsistency with the Constitutions freedom of expression clause, because it was far too vague and wide and had a chilling effect on the practice of journalism that was unacceptable in a democratic society.

Documents on Offer

1. AIPPA

2. Extracts from Criminal Law Code setting out sections 31, 33 and 96, and commentary on those sections from the Commentary on the Code by Professor Geoff Feltoe, Professor of Public Law, University of Zimbabwe

3. Declaration of Principles on Freedom of Expression in Africa [adopted by the African Commission on Human and Peoples Rights in 2002]

4. Extracts on freedom of expression from Universal Declaration on Human Rights and other international and regional instruments

5. The Camden Principles on Freedom of Expression and Equality [issued by Article 19 in April 2009]

Part 2 What are the next steps to achieving media reforms and protection of the constitutional right to freedom of expression and how will the new Constitutional Zimbabwe Media Commission relate to AIPPA,

Post published in: Politics

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