MISA-Zimbabwe Monthly Alerts Digest August 2009

Realising the inherent flaws of this document, MISA-Zimbabwe has therefore undertaken to come up with an alternative model (attached herewith) to this defective piece of legislation.

Preamble

It sets the purpose of the bill as to provide for the control of the frequency spectrum and t regulation of broadcasting and telecommunications emphasising that this should be done in the public interest snippets of which we will find in the body of the bill. It is also aimed at setting up and providing the functions and administration of the Broadcasting and Telecommunications Authority, amending the Postal and Telecommunications Act [Chapter 12:05] and repealing the Broadcasting Services Act [Chapter 12:06].

A closer look at BSA, shows a similar purpose except that it seems to put a lot of focus on the control and regulation of broadcasting frequencies.

PART 1.

s1 sets out the Bills short title and provides for its date of commencement. .

s2 contains definitions of terms that are used throughout the Bill. For the most part they are self-explanatory, but the wide definition of telecommunication should be noted: it covers all forms of communication by means of electricity, magnetism or electromagnetic waves, whatever the method of its transmission.

s2(2) enjoins courts of law and other judicial, quasi-judicial, governmental and other relevant officials who are enjoined to interpret the Bill to give full effect to freedom of expression as guaranteed by the Constitution. This clause is conspicuously absent in the BSA.s3 states purpose and objectives of the Bill.

Principal objectives are:

to modernise the countrys broadcasting and telecommunications sector

to encourage investment and innovation

to promote universal service and universal access;

to encourage competition;

to promote diversity and wide coverage of news in broadcasting activities through public broadcasting, commercial broadcasting and community broadcasting services.

The obvious advantage that this section presents is the fact that there is a hint at moving towards a converged communications framework which is implicit in the move to merge broadcasting services and telecommunications. The other clear advantage of MISAs proposed Bill is the fact that it takes into cognisance the need for broadcasting diversity which is included among the key objectives and purposes of the Act.

This is clearly in line with the letter and spirit of the African Charter on Broadcasting and the Banjul Declaration which highlights the need for media pluralism and diversity. As above, no such recognition is made under BSA.

s4 of the bill explicitly states that the State will be bound by the Bill although security services such as the police force, defence forces and prison services will be exempted from certain regulations in line with the provisions of section s21(3) of the proposed bill.

PART II

This part of the Bill establishes the Broadcasting and Telecommunications Authority of Zimbabwe. The Authority will be a body corporate governed by a board of directors whose members will be appointed by the President after selection by the House of Assembly from a short-list prepared by Parliaments portfolio committee on broadcasting and telecommunications. At a comparative level, the process of appointing members of the Authority is designed in a manner that will ensure transparency and will be designed to ensure their integrity and independence in the manner prescribed in s7 as read with Part I of the Second Schedule to the Bill.

The Bill provides a better alternative to the BSA in terms of the appointment procedure. While the manner of appointment provided under the BSA prescribes that the president will appoint six members to the BAZ after consultation with the minister and standing rules and orders committee (SROC) and three from a shortlist of six submitted to the president from the SROC.

Clearly, the appointment process under this bill removes any opportunity for presidential influence of any nature as his role is to simply endorse the final choice from the House of Assembly as well as ensuring public participation and representation in the process. This is a departure from the provisions of BSA where the president is given such wide discretion and influence on the appointment process.

The Authoritys functions are set out in s6 and will include:

managing the frequency spectrum

creating conditions that enhance opportunities for the provision of reasonably priced and efficient broadcasting and telecommunication services

licensing and regulating service providers

promoting fair competition. T

The powers of the Authority are set out in the First Schedule. The Authority will not be subject to political control except to the extent set out in s14, which will give the responsible Minister power to issue policy recommendations to the Authoritys board.

Any such recommendations will have to be consistent with the objectives of the Bill and will be subjected to public scrutiny and comment before being issued. However, in the exercise of these functions, the Authority will be subject to the rules of natural justice, which entails an exercise of power in a fair and transparent manner. The act clearly reduces the role of political players such as the president and minister to a minimal level hence minimising the chances of political interference.

s9 provides a further check against potential political interference. It provides that there will be a Broadcasting Committee which will be primarily responsible for regulating broadcasters.

s10 allows more room for the creation of further committees … for the better exercise of its functions … to enhance the effectiveness of the authority as a whole and as an effective way of decentralising power. The appointment process again is more transparent and greatly reduces the chance of political figures significantly influencing the composition of the committee in a manner that makes it more susceptible to manipulation by the Executive.

The bill creates a body that is more independent and autonomous as compared to the authorities that have been put in place through BSA and through the Postal and Telecommunications Act. In the latter acts too much executive control is vested with the president under the postal and telecommunications act and the minister under BSA. The two are vested with such wide powers such as to unilaterally fill vacancies, make decisions regarding remuneration amongst others thereby compromising the independence and autonomy of these regulatory bodies.

PART III

This Part empowers the Authority to control and manage the frequency spectrum, allocating frequencies to different uses. In exercising this control, the Authority will have to observe international standards and instruments which will ensure that the broadcasting and telecommunications fraternity develops along international human rights standards: s19 (2).

s20 of the proposed bill presents a wholly unique scenario in which the Authority will have power to prepare frequency band plans allocating frequencies to specific services and uses with the involvement of public participation in the preparation of the plans. In fact, before preparing a plan, the Authority will have to publish a notice inviting comments from interested parties, and when it has prepared a draft plan it will have to submit it to public scrutiny at a public hearing. This brings an entirely different complexion to the process provided for under the BSA.

PART IV

The power to regulate ownership of telecommunication services will be restricted to preventing monopolies and undue concentration of control over media in terms of s21 (4).

Regulations affecting broadcasting will have to be approved by the Authoritys Broadcasting Committee. This obviously brings in a semblance of democratic fibre in the manner in which the Authority exercises its powers of regulation. This is worth noting when one considers the fact that the provisions relating to limitation of cross-ownership had been repealed under the 2008 amendments to the BSA.

Again, such provisions are clearly alien concepts in the case of the BSA. In addition before making licensing regulations under this Part, the Authority will have to notify the public, and then hold a public hearing to consider any views submitted in response to the notice: s22. The proposed bill, unlike the BSA places a lot of importance on the principle of public participation.

The principle of public participation is also reflected in the substance of s23, which provides for an open and transparent process of issuing licenses. Applications for such licences will have to be publicly called for, and any representations received in response to the notification will have to be considered at public hearings. Again while the BSA acknowledges the fact that short-listed applicants for broadcasting licenses will be subject to public inquiry, there are no clear specifications as to how this ideal will be realised hence it can easily be overlooked and difficult to enforce.

PART V

The BSA mandates the BAZ with the power to consider applications for license and the Postal and Telecommunications Act mandates the Postal and Telecommunications Authority to do the same. However, in the latter case and whereas this is meant to regulate the players in the industry and their operations with the aim to create a fair playing field, such powers are controlled by the executive with the minister required to use his discretion on issuance of licenses to foreigners. The same applies with BSA.

s29 and 30 of the proposed bill, give the Authoritys Broadcasting and Telecommunications Committee, power to consider applications for broadcasting licences, to amend, suspend or revoke such licences. Anyone aggrieved by the Committees decisions will have a right of appeal to the Board under s46.

When dissatisfied with the Boards decision, s47 provides right of appeal to the Administrative Court. The appeal mechanism provided for under this bill is significantly more extensive than that under the BSA. However, concern arises on the overlapping functions between the High Court and the Administrative Court both of which have jurisdiction to deal with matters arising from the authority.

s31, 32 and 33 set out duties of public broadcasters, commercial broadcasters and community broadcasters. All broadcasters will be subject to the law regulating themselves in terms of content in their programming.

PART VII

This Part establishes a fund to be known as the Universal Telecommunication Service Fund, whose object will be to finance the provision of telecommunication services in the ways set out in s40. The Fund will be vested in the Board in terms of s39(2) and will consist of contributions levied on telecommunication service licensees under s42 as well as funds allocated by Parliament and operating surpluses of the Authority paid into the Fund under paragraph 20 of the Second Schedule to the Bill.

PART VIII

Under s49, the Authority will appoint inspectors (who may be employees of the Authority or of a licensee such as a public broadcaster) to carry out inspections under the Bill. Inspectors and police officers will have powers of entry and inspection under s50. Although these powers will be subject to constitutional constraints in terms of s49 (6). Under the same clause, inspectors and police officers will be able to require persons to produce their licences issued under the Act.

s51 will oblige the Minister to publish international treaties and conventions relating to telecommunications to which Zimbabwe is a state party or upon ratification. s52 stipulates the minimal requirements for public hearings conducted under the Bill, a position that is not included within the text and substance of the BSA.

Under s55 as read with the Third Schedule to the Bill, the Postal and Telecommunications Act [Chapter 12:05] will be amended to remove all references to telecommunications. s56 will repeal the Postal and Telecommunication Services Act [Chapter 12:02] and the Broadcasting Services Act [Chapter 12:06].

Finally, s57 will leave in force licences and authorities issued or granted under the Postal and Telecommunications Act and the Broadcasting Services Act. All the assets of the present Broadcasting Authority of Zimbabwe and the Broadcasting Fund administered by that Broadcasting Authority of Zimbabwe will be transferred to the Authority established by this envisaged Act and the assets of POTRAZ and of the Universal Service Fund will, similarly be transferred to the Authority, although there shall be need for both POTRAZ and the Authority to be agreed on the sums to be transferred.