THE CONSTITUTIONALITY OF THE IMPUGNED SECTIONS OF THE ACT
The applicant has challenged the constitutionality of a number of
sections of the Access to Information and Protection of Privacy Act [Chapter 10:27]. These are set out in
the draft order. The impugned sections are - 39(1)(g), (i), (j), (n) and (p),
40, 41, 65, ...
THE CONSTITUTIONALITY OF THE IMPUGNED SECTIONS OF THE ACT
The applicant has challenged the constitutionality of a number of
sections of the Access to Information and Protection of Privacy Act [Chapter 10:27]. These are set out in
the draft order. The impugned sections are - 39(1)(g), (i), (j), (n) and (p),
40, 41, 65, 66, 69, 70, 71, 72, 79, 80, 83 and 89, and paragraph (4) of the
Fourth Schedule of the Act.
In addition, the applicant seeks the following declaratory orders,
namely:
(i) That the Access to Information and Protection of Privacy
(Registration, Accreditation and Levy) Regulations, 2002, published in
Statutory Instrument 169C of 2002, infringe the right of the freedom of
expression set out in section 20 of the Constitution of Zimbabwe ('the
Constitution') and are therefore invalid and of no force and effect in respect
of the registration of newspapers and the accreditation of journalists;
(ii) That section 65 of the Access to Information and Protection of
Privacy Act [Chapter 10:27]
infringes the right of the freedom of association set out in section 21 of the
Constitution and is, therefore, invalid and of no legal effect; and
(iii) That section 76, insofar as it refers to the second respondent,
infringes the applicant's right against the compulsory acquisition of property
set out in section 16 of the Constitution and is therefore invalid and of no
legal effect….,.
I will now deal with the particular sections under challenge.
Section 39
Section 39 of the Access to Information and Protection of Privacy Act [Chapter 10:27] provides as follows:
“39. Functions and powers of Commission
(1) Subject to this Act, the
powers and functions of the Commission shall be -
(a) To ensure that Zimbabweans
have access to information and effective control of mass media services; and
(b) To receive and act upon
comments from the public about the administration and performance of the mass
media in Zimbabwe; and
(c) To comment on the
implications of proposed legislation or programmes of public bodies on access
to information and protection of privacy; and
(d) To comment on the
implications of automated systems for collection, storage, analysis or transfer
of information or for access to information or protection of privacy; and
(e) To inform the public about
this Act; and
(f) To engage in or commission
research into anything affecting the achievement of the purposes of this Act;
and
(g) To conduct investigations in
terms of Part IX to ensure compliance with the provisions of this Act; and
(h) To advise the Minister on
the adoption and establishment of standards and codes relating to the operation
of mass media; and
(i) To receive, evaluate for
accreditation and consider applications for accreditation as a journalist; and
(j) To enforce professional and
ethical standards in the mass media; and
(k) To review the decisions of
public bodies in terms of Part X; and
(l) To bring to the attention of
the head of a public body any failure to meet the prescribed standards for
fulfilling the duty to assist applicants; and
(m) To authorise a public body,
at the request of its head, to disregard requests that would unreasonably
interfere with the operations of the public body; and
(n) To accredit journalists; and
(o) To monitor the mass media
and raise user awareness of the mass media; and
(p) To register mass media in
Zimbabwe; and
(q) To investigate and resolve
complaints against any mass media service in terms of the provisions of this
Act.
(2) In the exercise of its
functions, the Commission shall have regard to the desirability of securing the
following objects -
(a) To foster freedom of
expression in Zimbabwe;
(b) To make information easily
accessible to persons requiring it;
(c) To ensure accurate, balanced
and unbiased reporting by the mass media in Zimbabwe;
(d) The development of mass
media that uphold professional and ethical codes of conduct;
(e) To promote the preservation
of the national security and integrity of Zimbabwe;
(f) To foster a Zimbabwean
national identity and integrity;
(g) To be responsible for
enforcing and monitoring the enforcement of provisions of this Act; and
(h) To ensure that its purposes
are achieved.
(3) Subject to this Act, for the
better exercise of its functions, the Commission shall have power to do or
cause to be done, either by itself or through its agents, all or any of the
things specified in the Third Schedule, either absolutely or conditionally and
either solely or jointly with others.”
The applicant's founding affidavit sets out no details as to how the
impugned provisions of section 39 of the Access to Information and Protection
of Privacy Act [Chapter 10:27]
are unconstitutional or in what manner sction 39 abridges the applicant's
constitutional rights. In paragraph 13 of the founding affidavit there is a
broad reference to section 39 of the Act. It is as follows:
“13. It is the view of the applicant, therefore, that the provisions of
the Act concerning the second respondent and its functions and also the
provisions of the Act relating to the registration of mass media owners and
related provisions set out in sections 39(1) (g), (i), (j), (n) and (p), 40,
41, 65, 66, 69, 70, 71, 72, 76, 79, 83 and 89 are unconstitutional and should
be declared to be so.”
Also in paragraph 37 of the applicant's heads of argument there is an
oblique reference to section 39 of the Act which does not in any way take the
averments any further. The remaining subsections of section 39 of the Act are
not, in any way, impugned by the applicant. In particular, the applicant does
not impugn the functions of the Commission but does impugn the Commission's
powers to investigate issues of compliance with the Act; powers of
accreditation of journalists (paragraph (g) and (n)); powers to enforce
professional and ethical standards (j); to monitor the mass media and raise
user awareness of the mass media (o); and the registration of the providers of
mass media services in Zimbabwe.
As I have already stated, the applicant does not state in what manner
these provisions are unconstitutional.
This Court has already held that accreditation of journalists and the
licensing of electronic media is constitutional as long as the requirements for
such accreditation and licensing are not onerous. See Capital Radio (Private) Limited v Broadcasting Authority of Zimbabwe and Others SC128-02 and Association of Independent Journalists &
Others v The Minister of State for Information and Publicity in the President's
Office & Others SC136-02.
Section 39 deals not with the qualifications for accreditation but with
the requirements for accreditation, which this Court has declared to be
constitutional….,.
I am satisfied, therefore, that there is nothing on
the papers that establishes that the impugned provisions of section 39 of the
Access to Information and Protection of Privacy Act [Chapter 10:27] are unconstitutional.
