Broadcasting or Publication of False or Misleading Information
If it comes to the attention of the Zimbabwe Electoral Commission that any broadcaster [including the public broadcaster ZBC] or print publisher [newspaper or magazine] that any YES or NO campaigner is publishing information on the Referendum question [YES/NO to the draft constitution] that ZEC thinks is either:
• materially false or incorrect; or
• likely to prevent a substantial number of voters from making an informed choice in the Referendum
ZEC may by written notice order the broadcaster or publisher concerned to cease publishing the information or alter the information to make it accurate and fair, or to retract or correct the information in a way directed by ZEC in its notice. Failure to comply immediately is an offence attracting a fine of up to $300,00 or one year’s imprisonment.
This prompts some important questions.
First, does this mean that ZEC is entitled to fine or jail anyone they think is publishing misleading information about the referendum? That sounds as if they are usurping the powers of the judiciary. It is a universal principle of human rights that nobody may be given a jail sentence without being tried and proved guilty of an offence.
The draft Constitution (February 2013 version) states in section 70,(1) that any person accused of an offence has the following rights among others —
(a) to be presumed innocent until proved guilty;
(c) to be given adequate time and facilities to prepare a defence;
(d)&(e)to be represented by a legal practitioner
(g) to be present when being tried;
(h) to adduce and challenge evidence; but this statutory instrument says nothing about a court judgement, just “if ZEC thinks . . ” they can order the person to retract the statement they don’t like or, if they don’t comply, immediately be fined or jailed. Is it saying that ZEC, as accuser, may act as prosecutor and judge in their own case? If not, could they please explain who is supposed to be prosecutor and who is judge, remembering that the same constitution draft, section164 (2)(a) says: neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts.
One might allow ZEC some judicial functions if its chairperson was, as the law prescribes, a judge, former judge or person qualified to be appointed a judge. At the moment of writing ZEC is headed by its secretary acting in the absence of a chairperson, and she does not have the legal qualifications to be made chairperson.
We had hoped that this era, in which we hope for a people’s constitution to usher in a democratic order, would be different from the history we have lived through – a history of governments disregarding the law, or crafting laws to achieve their purposes without regard for the most basic principles of jurisprudence.
I was not old enough to be aware of these finer points before the time of Ian Smith. The rulers he replaced made unjust laws, but they criticised him for ignoring the principles of good lawmaking: if you were accused of breaking one of their unjust laws, there were still rules about how to prove the unjust law had been broken. Smith’s lawmaking contained far too much of “if the Minister (or some other specified official) believes . . ”. Unfortunately our independent government inherited that bad habit – and it has grown more ingrained over the years.
For example, if MPs had taken their job as lawmakers seriously in 1980, we would not have had rule by statutory instrument, leading to SI 26 of 2013.
Post published in: Opinions & Analysis