AU Watch

297/05: Scanlen & Holderness / Zimbabwe

Title297/05: Scanlen & Holderness / Zimbabwe
PublisherAfrican Commission on Human and Peoples’ Rights
Publication Date3 April 2009
CountryZimbabwe
TopicsFreedom of expression | Freedom of information | Freedom of speech | Rule of law / Due process / Procedural fairness

Summary of Facts
1. The Complainants are the Independent Journalists Association of Zimbabwe, the Zimbabwe
Lawyers for Human Rights and the Media Institute of Southern Africa. The Respondent State is the
Republic of Zimbabwe, a State Party to the African Charter on Human and Peoples’ Rights (the
African Charter).

2. The Complainants submit that on 18th March 2002, the Respondent State enacted a legislation
known as the Access to Information and Protection of Privacy Act (AIPPA), Chapter 10:27. Section 79
subsection 1 of the Act provides that: “No journalist shall exercise the rights provided in Section 781 in
Zimbabwe without being accredited by the Commission.” The Commission being referred to here is
the Media and Information Commission (MIC) established under AIPPA, the Zimbabwe legislation,
subject of this communication.

3. According to the Complainants, the Media and Information Commission (MIC) is managed by a
Board appointed by the Minister of Information and Publicity, or [any] other Ministers the President
assign the administration of the AIPPA. Complainants allege that the Minister acts in consultation and
in accordance with directions from the President of the Republic of Zimbabwe.

4. It is also alleged that no journalist may practice journalism unless he/she is accredited by the MIC
and that Section 80 of the AIPPA provides that a journalist found guilty of abusing his or her
journalistic privilege is liable to a fine or imprisonment for a period not exceeding two years.

5. It is further submitted by the Complainants that Sections 79 (1) and 80 (1) (b)] of the AIPPA
contravene Article 9 of the African Charter on Human and Peoples’ Rights which provides
that: “[e]very individual shall have the right to receive information. Every individual shall have the right
to express and disseminate his opinions within the law.”

6. According to the Complainants, compulsory accreditation of journalists, irrespective of the quality
of the accrediting agency, interferes with freedom of expression. They state that accreditation fees
provided for under the law are an additional restriction on freedom of expression. They allege that
compulsory accreditation of journalists by a Commission which lacks independence interferes with
professional independence and the autonomy of the journalism profession. The Complainants submit
further that, the MIC is not democratically constituted. Its constitution and control is not consistent with
democratic values.

7. The Complainants submit further that self-regulation is a central feature of an independent
profession and that the AIPPA is inherently inimical to freedom of expression and has no justification
in a democratic society.

8. The Complainants claim further that they have a real and substantive interest in the matter as they
were established to protect human rights and the freedom of expression.

9. They submit finally that they have exhausted local remedies and that they have litigated the issues
in the highest court in Zimbabwe, whereby the Supreme Court of Zimbabwe declined to declare
unconstitutional, the intentional publication of falsehoods and compulsory accreditation of journalists.
Complaint

10. The Complainants allege that Section 79 (1) and Section 80 of the Access to Information and
Protection of Privacy Act of Zimbabwe contravene Article 9 of the African Charter on Human and
Peoples’ Rights.

11. The Secretariat of the African Commission on Human and Peoples’ Rights acknowledged receipt
of the communication on 10 February 2005 and informed the Complainants that the communication
was registered as Communication 297/2005 – Scanlen & Holderness (on behalf of Independent
Journalists Association of Zimbabwe, [Zimbabwe] Lawyers for Human Rights and Media Institute of
Southern Africa)/Zimbabwe.

12. The Secretariat also informed the Complainants that the communication would be considered for
seizure at the 37thOrdinary Session of the Commission scheduled to take place from 27 April to 11
May 2005, in Banjul, The Gambia.

13. On 2 June 2005, the Secretariat informed both parties that during its 37th Ordinary Session the
African Commission considered the communication and decided to be seized thereof. The Secretariat
also informed them that the Commission intended to consider the communication on admissibility at its
38th Ordinary Session to be held from 21 November to 5 December 2005. It requested the parties to
forward their arguments on admissibility within three (3) months from the date of the notification.
14. On 18 August 2005, the Secretariat sent reminders to both parties requesting them to submit
their arguments on admissibility.

15. On 12 September 2005, the Secretariat received the Complainants’ arguments on admissibility.

16. On 14 December 2005, the Secretariat wrote to both parties informing them that during its
38th Ordinary Session held from 21 November to 05 December 2005, in Banjul, The Gambia, the
African Commission considered the communication and declared it admissible.

17. The Secretariat also informed both parties that the African Commission intended to consider the
communication on the merits at its forthcoming session, and invited the parties to forward their
arguments on the same.

18. On 6 March 2006, the Secretariat received and acknowledged receipt of the Complainants’
submissions on the merits.

19. On 4 April 2006, the Secretariat wrote a reminder to the Respondent State to submit their
arguments on the merits.

20. During the 39th Ordinary Session held from 11-25 May 2006, in Banjul, The Gambia, the
Respondent State submitted its arguments on the merits.
21. On 26 July 2006, the Secretariat wrote to both parties informing them that, at its 39th Ordinary
Session held from 11-25 May 2006, in Banjul, The Gambia, the African Commission considered the
above communication and decided to defer its decision on the merits to its 40th Ordinary Session to be
held from 15-29 November 2006 in Banjul, The Gambia.

22. On 8 December 2006, the Secretariat informed both parties that at its 40th Ordinary Session, the
African Commission considered the communication and decided to defer its decision on the merits to
its 41st Ordinary Session scheduled from 16-30 May 2007 in Ghana.

23. On 25 June 2007, the Secretariat wrote to both parties informing them that at its 41st Ordinary
session the Commission considered the communication and deferred its decision on the merits to its
42nd Ordinary Session, in order to finalise the draft decision.

24. On 19 December 2007, the Secretariat wrote to both parties informing them that at its
42nd Ordinary Session held from 15 to 28 November 2007 in Brazzaville, Congo, the African
Commission considered the communication and deferred its decisions on the merits to its
43rd Ordinary Session.

25. At its 43rd Ordinary Session held in Ezulwini, Kingdom of Swaziland from 7-22 May 2008, the
African Commission deferred consideration of the communication to its 44th Ordinary Session.
26. By Note Verbale of 2 July 2008 and letter of the same date, the Secretariat informed both parties
of the Commission’s decision.

27. At its 44th Ordinary Session held in Abuja, Federal Republic of Nigeria from 10-24 November
2008, the African Commission deferred consideration of the communication

28. By Note Verbale of 5 December 2008 and letter of the same date, the Secretariat informed both
parties of the Commission’s decision.

Law
Admissibility
The State’s Submission
29. The Respondent State submits that the communication does not meet the requirements of
admissibility under the African Charter on Human and Peoples’ Rights because: (i) the Complainants
fail to disclose a violation of Article 9 of the Charterand; (ii) the Complainants have not exhausted local
remedies as required under Article 56.5.

Non exhaustion of local remedies

30. The Respondent State claims that the Complainants have not approached the Supreme Court of

Zimbabwe to seek redress in terms of Section 24(1) of the Constitution of Zimbabwe and, as such, the
communication should be considered inadmissible.

31. Section 24(1) affords every person the opportunity to obtain expeditious redress if any of the
rights under the Declaration of Rights in the Constitution of Zimbabwe are infringed. The Supreme
Court has a wide discretion to grant any form of redress in order to enforce the Declaration of Rights.

32. The Respondent State made reference to a decision of the Supreme Court in the Association of
Independent Journalistscase, whereby the Supreme Court struck down Sections 80 (1) (a), (b) and (c)
as unconstitutional and the sections were subsequently repealed and substituted through Section 18
of Act 5 of 2003.

33. The Respondent State submits further that the Complainants have not challenged the
constitutionality of the substituted provision before the courts in Zimbabwe, arguing that Complainants
are therefore requesting the African Commission to become a tribunal of first instance, a function
which it cannot fulfil, either as a legal or practical matter.

Complainants’ submissions on admissibility
34. In response to the State Party arguments, the Complainants submits that, the communication
meets the requirements ofArticle 56.5 of the Charter as all national remedies have been exhausted.
The Complainants concede that in terms of the hierarchy of the courts of Zimbabwe, the Supreme
Court is the final arbiter on constitutional and human rights matters. They argue that Section 24 of the
Constitution of Zimbabwe stipulates that an individual who feels that her or his rights as enshrined in
the Chapter on the Declaration of Rights in the Constitution, have been or are likely to be infringed
shall approach the Supreme Court as a court of first instance. The Complainants state that the
Supreme Court was approached, and it ruled that accreditation and registration of journalists was
constitutional and mandatory, for any individual who intends to pursue the profession of journalism in
Zimbabwe. Pursuant to that decision 2 , the Complainants claim they had no other means of remedying
the situation but to approach the African Commission. They argue therefore that the requirement
of Article 56.5 of the Charter has been met.

35. The Complainants state further that, the Supreme Court decision which upheld the requirement
for compulsorily registration by the MIC is tantamount to an intrusion in the actual right to freedom of
expression. The Complainants submit that the African Commission has held in 105/1993-128/1994-
130/1994 Media Rights Agenda and Other vs. Nigeria 3 , that onerous conditions of accreditation and
total discretion by the registration board, effectively giving government the power to prohibit publication
of newspapers or magazines are akin to censorship and seriously endanger the right of the public to
impart and receive information in contravention of Article 9.1 of the Charter.

36. The Complainants argue further that the Supreme Court found that the proscription of false news
can never be said to be unconstitutional, noting that the reasoning of the Supreme Court was that
falsehood is the antithesis of the truth of information 4 . They claim that the Supreme Court found that
there was no constitutional protection for false news.

37. They claim it is on that basis that they have brought their communication to the African
Commission, arguing that there is no domestic remedy available in Zimbabwe to afford protection to a
distributor of false news or fiction or false cartoons.

Decision of the African Commission on admissibility
38. The African Commission, having considered the criteria on admissibility under Article 56 of the
Charter, is satisfied that the communication indicates the authors, that it falls within the ratione
materiae and ratione temporis of the Charter and the Constitutive Act, and is therefore compatible with
the Charter. It does not use disparaging language, it has provided information and facts on the
decision of the Supreme Court of Zimbabwe, including Affidavits on which the Complaint is based. It
was submitted within reasonable time, and is not a subject of adjudication in any other tribunal and/nor
previously settled by another international tribunal.

39. The only criterion which the African Commission has to look at is whether the communication
satisfies Article 56.5. Having analysed the submissions by both parties on the question of exhaustion
of domestic remedies, the African Commission is satisfied that in the light of the Supreme Court
decision, Constitutional Application No. 252/02, 5 spelling out the position of the law in Zimbabwe
concerning the provisions applicable to the accreditation and registration of journalists, which is a
binding authority in Zimbabwe, it would have been futile for the Complainants to go to the Supreme
Court in order to exhaust domestic remedies.

40. Taking into account all the foregoing submissions, the Commission decides to declare the
communication admissible.

Consideration of the merits
Complainants’ submissions
41. The Complainants argue that the emphasis on the right to freedom of expression in ensuring
democracy is such that regulation, other than self-regulation, is undesirable in a democratic society.
They argue further that practical considerations for media regulation arise from the need for resource
management, need to ensure equal access, competition laws and minority rights, public service
considerations, consumer protection and revenue considerations. All the aforesaid factors are
applicable to electronic media house regulation and not applicable to regulation of journalists.

42. The Complainants submit further that there is no necessity for additional measures to control
journalists in Africa because in virtually all jurisdictions in Africa, there are civil and criminal sanctions
for injuria and defamation which already regulate the conduct of journalists in the discharge of their
work. 

43. The Complainants submit further that the registration requirements and procedures are unduly
intrusive and burdensome, particularly inquiries into individuals’ private details such as one’s marital
status, passports numbers, expiring dates of passports, place of issue of passports, driver’s license
numbers, demands for residential addresses, and details related to any criminal record. Others include
demand for details concerning specific assignments to be covered by the journalists, all of which
impose prior self-censorship as a precondition to acquire accreditation. They argue that the
accreditation forms have to be examined and approved by both the Permanent Secretary and the
Minister, thereby establishing control of journalists by central government.

44. According to the Complainants, the fact that one has to be accredited to a media house and
obtain the support of a media house to successfully apply for accreditation amounts to restriction on
the practice of journalism and the free flow of information.

45. They submit that a foreign journalist is required to pay as much as US$1,050 for accreditation
and registration to carry out a temporary assignment.

46. The Complainants submit further that even more restrictive and unreasonable is the fact that
there is no provision for a permanent accreditation of foreign correspondents. That the US$12,000,00
requirement per annum accreditation and registration fees for a foreign news agency representative is
unduly burdensome, unaffordable for most people in Zimbabwe and an unreasonable restriction on
freedom of expression.

47. They claim that the temporary nature of the accreditation is itself particularly ominous and
different from the accreditation required to cover specific events. The Complainants argue that
accreditation is not aimed at giving the journalist access, but that it is apparent from the legislation that
the accreditation is aimed at controlling and even obstructing the work of a journalist. 

48. The Complainants argue further that, compliance with formal but onerous and intrusive preregistration requirements stipulated in the statutory instrument does not guarantee registration of a
journalist because the MIC has discretion to decide whether or not to register the journalist.

49. The Complainants urge the African Commission to draw inspiration from legal precedent
developed in other regional human rights systems. They specifically draw the attention of the African
Commission to Article 13 of the American Convention on Human Rights, which provides, inter alia,
that: (1) “Everyone has the right to freedom of thought and expression. This includes freedom to seek,
receive and impart information and ideas of all kinds regardless of frontier, either orally or in writing, in
print, in the form of art or through any other medium of one’s choice.” (2) Article 13 paragraph 3,
provides that: (3) “the right of expression may not be restricted by indirect methods or means such as
the abuse of government or private controls over newsprint, radio broadcasting frequencies or
equipment used in dissemination of information or by any other means tending to impede the
communication and circulation of ideas and opinions.”

50. The Complainants also cite an Advisory Opinion of the Inter American Court of Human Rights on
compulsory registration which dealt with the question of registration of journalists in Costa Rica. The
Court stated in this Advisory Opinion that;
“it is the mass media that make the exercise of freedom of expression a reality. This means that the
conditions of its use must conform to the requirements of this freedom, with the result that there must
be, inter alia, a plurality of means of communication, the barring of all monopolies thereof, in whatever
form, and guarantees for the protection of freedom and independence of journalists. The compulsory
licensing of journalists does not comply with the right to freedom of expression because the
establishment of a law that protects the freedom and independence of anyone who practices
journalism is perfectly conceivable without the necessity of restricting the practice only to a limited
group of the community…”6

51. According to the Complainants, Article 13 of the American Convention on Human Rights defines
freedom of expression in a way similar to that of Article 9 in the Charter; as “freedom to seek, receive,
and impart information and ideas of all kinds.”

52. The Complainants note that the right protected by Article 13 of the American Convention (similar
to the right protected under Article 9 of the Charter) has a special scope and character, evidenced by
the dual aspect of freedom of expression. That, on the one hand, the prohibition of any restrictions or
impediments by governments or privately against free expression, dissemination of information,
communication or circulation of thoughts and ideas, and in that sense, it is a right that belongs to each
individual. Its second aspect implies a collective right to receive any information whatsoever and to
have access to the thoughts expressed by others.

53. The Complainants also submit that ‘if you control journalists you control expression; controls are
an obstacle to the means of expression and therefore against freedom of expression itself’. According
to them, the Respondent State’s attempts to distinguish between freedom of the press and freedom of
expression are not sustainable. They add that, although freedom of expression encompasses a wider
range of activities than freedoms of the press, in that sense the two are different. Freedom of the press
is an element of freedom of expression.

54. The Complainants argue further that, freedom of expression goes further than the theoretical
recognition of the right to speak or to write. They submit that it also includes and cannot be separated
from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach
as wide an audience as possible.

55. The Complainants argue that the both the Inter-American Convention on Human Rights and the
Universal Declaration of Human Rights proclaim that freedom of thought and expression includes the
right to impart information and ideas through “any… medium”, and this means that the expression and
dissemination of ideas and information are indivisible concepts. They submit that, the restrictions that
are imposed on dissemination represent, in equal measure, a direct limitation on the right to express
oneself freely. They argue further that the legal rules applicable to the press and to the status of those
who dedicate themselves professionally to it derive from this concept. They state that in its social
dimension, freedom of expression is a means of the interchange of ideas and information among
human beings and for mass communication and includes the right of each person to seek to
communicate his own views to others, as well as the right to receive opinions and news from others.

56. The Complainants refer the African Commission to the Zambian case of Francis Kasoma v The
Attorney General , where compulsory registration of journalists ordered by the Zambian government
was declared unconstitutional by the Zambian High Court in 1997. According to the Complainants, in
that case, journalists were obliged to become members of a Media Association of Zambia and to
register with a statutory Media Council. They submit that the High Court of Zambia quashed the
decision and among the reasons given by the High Court Judge is that:
“I do not in my view consider the decision to constitute the Media Council of Zambia to be in
furtherance of the general objectives and purpose of the Constitutional powers, among them, to
promote democracy and related democratic ideals such as freedom of expression, and press freedom
in particular. … The decision to create the Media Council of Zambia is no doubt going to have an
impact … on freedom of expression in that failure of one to affiliate himself to the Media Council of
Zambia, or in the event of breach of any moral code determined by the council would entail losing his
status as a journalist, and with the denial of the opportunity to express and communicate his ideas
through the media”.

57. The High Court in Zambia went on to state that
“in light of the above it cannot be seriously argued that the creation of the Media Association or any
other regulatory body by the Government would be in furtherance of the ideal embodied in the
Constitution, vis-à-vis freedom of expression and association. Consequently, I find that the decision to
create the Media Association is not in furtherance of the objectives or purposes embodied in the
Constitution in particular those protected in Articles 20 and 21 [which guarantee freedom of expression
and association]”.

58. The Complainants further submitted that the provision under Section 84 of the AIPPA, which
makes it compulsory to renew accreditation after a maximum period of twelve months, i.e. at the end
of each calendar year, places journalists in a position of permanent insecurity. This, according to them,
will have an extremely chilling effect on their ability to freely practice their trade and will inevitably lead
to various degrees of self-censorship.

59. The Complainants argue that in those very rare instances where expression really does pose a
risk to society, as in the example from Rwanda cited by the Respondent, this should be addressed
through the criminal law, not by generalised restrictions on all journalists.

60. The Complainants submit that the real purpose of the licensing system established by AIPPA is
to provide the Government with a measure of control over journalism and to prevent, or at least limit
critical reporting. As a result, they claim, the licensing system for journalists imposed by the contested
provisions of AIPPA does not serve a legitimate aim as required under international law.
61. In conclusion, the Complainants submit that modern jurisprudence accepts that it is contrary to
freedom of expression to criminalise falsehoods, and to support this argument, they cite Chavunduka
and Another v Minister of Home Affairs and Another , where the Supreme Court of Zimbabwe
observed that:
“Plainly, embraced and underscoring the essential nature of freedom of expression, are statements,
opinions and beliefs regarded by the majority as being wrong or false. As the revered HOLMES J so
wisely observed inUnited States v Schwimmer 279 US 644 (1929) at 654, the fact that the particular
content of a person’s speech might “excite popular prejudice” is no reason to deny it protection for “if
there is any principle of the Constitution that more imperatively calls for attachment than any other, it is
the principle of free thought -not free thought of that we hate.” Mere content, no matter how offensive,
cannot be determinative of whether a statement qualifies for the constitutional protection afforded to
freedom of expression.”

Respondent State’s arguments on the merits
62. The Respondent State on its part submits that the Complainants have failed to establish a
violation of Article 9 of the Charter, adding that it is misleading to suggest that the MIC is susceptible
to political manipulation and control. According to the Respondent State, the operations of the MIC are
controlled and managed by a Board which consists of no fewer than five members and [no] more than
seven members of whom at least three shall be nominated by an association of journalists and an
association of media houses. The Respondent State submits that the Complainants’ suggestion that
the registration process is prejudicial to them is baseless as there are other independent journalists
who have been registered even though their work is critical of the government.

63. It is incorrect, the Respondent State argues, to suggest that Section 80 of the AIPPA
unreasonably restricts the right to freedom of expression and dissemination of information. According
to the Respondent State, Section 80 restricts not all falsehoods, but only those that are willfully
published and that are likely to injure the public interest. In the opinion of the Respondent State, such
restrictions are reasonably necessary and cannot be held to be excessively invasive of the enjoyment
of the guaranteed right.

64. On the allegation that the AIPPA seeks to regulate the media, the Respondent State submits that
the constitutional 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.9 The Respondent State also made reference to the provisions of Article 19 of the ICCPR
and Article 9 of the African Charter to the effect that the right is subject to regulation by law.
65. In response to the Complainants’ submission that journalists should not be regulated by statute
but should be self-regulating, the Respondent State submits that this amounts to no regulation, and
goes beyond what is permissible, adding that regulation of the media including licensing of journalists
is permissible.

66. The Respondent State argues further that in terms of Article 9 of the African Charter together
with Article 19(3) of the ICCPR, freedom of expression is not absolute. Those restrictions are
permissible if provided by law and are necessary. The Respondent State cites the case of Athukorale
and others, supra where it was held that: “Absolute and unrestricted individual rights do not and
cannot exist in a modern State. The welfare of the individual, as a member of collective society, lies
in a happy compromise between his rights as an individual and the interests of the society to which he
belongs.”

67. The Respondent State submits that the Constitution of Zimbabwe contains a justiciable Bill of
Rights and Section 20(1) provides that everyone has a right to freedom of expression. It states further
that, in terms of Section 20 (2) of the Constitution, the right can be restricted.

68. The Respondent State argues further that in terms of the Zimbabwe Constitution the freedom of
expression is guaranteed with permissible limitations. This is in accordance with Article 9 of the African
Charter which guarantees the enjoyment of the right “within the law”, and according to the Respondent
State, the “law” referred to in Article 9 of the Charter, relates to“domestic law”.

69. The Respondent State submits that what is explicit in the African Charter is the recognition that
the exercise of the right is subject to national law, adding that the Complainants conveniently avoided
to mention or place emphasis on the wording of the article in question.

70. AIPPA, according to the Respondent State, is a law made in terms of the Constitution of
Zimbabwe and Section 79 thereof has been held by the Zimbabwean constitutional court as
constitutional. The State cites Associated Newspapers of Zimbabwe (Pvt) v The Minister of State for
Information and Publicity and 2 Others SC 111/04 and Association of Independent Journalists and 2
Others v The Minister of State and 2 Others SC 136/02 to support this submission.

71. The State submits further that the practice of journalism does not place it beyond statutory
regulation and any such law has however to conform to the stringent requirements of limitations
provided for by the Constitution, and according to the State, Section 79 of AIPPA passes the test.

72. The Respondent State states further that the registration exercise is of a technical nature, it is not
onerous, and urges the Commission to find Section 79 of AIPPA does not contravene the right to
freedom of expression under Article 9 of the African Charter.

73. With respect to Section 80 of AIPPA, the Respondent State submits that the provision makes it
an offence to intentionally publish falsehoods which threatens the interests of defence, public safety,
public order, the economic interests of the State, public morality or public health or are injurious to
reputation, rights and freedoms of other persons.

74. The Respondent State concludes its submission by arguing that, the provisions of AIPPA being
challenged by the Complainants have been declared constitutional and hence comply with the
qualification under the African Charter’s exercise of the freedom of expression “within the law.”
75. The Respondent State calls on the Commission to dismiss the communication.

Decision of the African Commission on the merits
76. In the present communication, the Complainants allege that Section 79 (1) and Section 80 of the
AIPPA contraveneArticle 9 of the African Charter. Section 79 (1) of AIPPA provides that “No journalist
shall exercise the rights provided in Section 78 in Zimbabwe without being accredit by the
Commission.” Section 78 meanwhile provides that:
1. “Subject to this Act and any other law, a Journalist shall have the following rights (hereinafter
in this Act collectively referred to as “journalistic privilege”),
2. to enquire, gather, receive and disseminate information;
3. to visit public bodies with the express purpose of carrying out duties as a journalist;
4. to get access to documents and materials as prescribed in this Act;
5. to make recordings with the use of audio-video equipment, photography and cinephotography;
6. to refuse to prepare under his signature reports and materials inconsistent with his
convictions;
7. to prohibit the publication of, remove his or her signature from or attach conditions to the
manner of using a report or material whose content was distorted, in his or her opinion, in the
process of editorial preparation.”

77. Section 80 provides for instances which constitute abuse of journalistic privileges, as well as the
punishment that goes with such abuse. Section 80 (1) provides that; “[a] journalist shall be deemed to
have abused his journalistic privilege and committed an offence if he does the following:
1. falsifies or fabricates information;
2. publishes falsehoods
3. except where he is a freelance journalist, collects and disseminates information on behalf of a
person other than the mass media service that employs him without the permission of his
employer;
4. contravenes any of the provisions of this Act.”

78. Section 80(2) states that; “[a) person who contravenes subparagraphs (a) to (d) of subsection (1)
shall be guilty of an offence and liable to a fine not exceeding one hundred thousand dollars or to
imprisonment for a period not exceeding two years.” 

79. In the present communication, the Commission is called upon to make a determination whether
Section 79 (1) which requires compulsory accreditation of journalists, and Section 80 which prohibits
and punishes the publication of falsehood violate the right to freedom of expression guaranteed
under Article 9 of the African Charter.

80. Article 9 of the African Charter provides that: “(1). every individual shall have the right to receive
information. (2). every individual shall have the right to express and disseminate his opinions within the
law.”

81. Article 9 of the Charter guarantees the right to freedom of expression, which includes the right to
receive information and the right to express and disseminate opinions within the law.

82. The Complainants submit that the law imposed by the Respondent State is unreasonable and
restrictive to freedom of expression, thus violates Article 9 of the Charter.

83. The Respondent State on the other hand contends that the restrictions imposed by the AIPPA
are reasonable, within the law and necessary for maintenance of public order. The Respondent State
argues further that the right to freedom of expression is guaranteed within permissible limitations, and
that it is not an absolute and unrestricted individual right.

84. To determine whether the requirements of Section 79(1) and Section 80 of AIPPA are in contravention of the African Charter, the African Commission will examine what these two provisions mean, and also examine the meaning of Article 9 of the Charter, with a view to determine whether or not there is a violation of Article 9 of the African Charter.

85. Section 79 of AIPPA reads as follows:
No journalist shall exercise the rights provided in section seventy-eight in Zimbabwe without being
accredited by the Commission…
Any person who wishes to be accredited as a journalist shall make an application to the Commission
in the form and manner and accompanied by the fee, if any, prescribed: Provided that a mass media
service or news agency may file an application for accreditation on behalf of journalists employed by
such mass media service or news agency….
(5) The Commission may accredit an applicant as a journalist and issue a press card to the applicant if
it is satisfied that the applicant- (a) has complied with the prescribed formalities; and (b) possesses the
prescribed qualifications; and (c) is not disqualified by virtue of subsection (2), or applies for
accreditation in terms of subsection (4).
Every news agency that operates in Zimbabwe, whether domiciled inside or outside Zimbabwe, shall
in respect of its local operations not employ or use the services of any journalist other than an
accredited journalist who is a citizen of Zimbabwe, or is regarded as permanently resident in
Zimbabwe by virtue of the Immigration Act [Chapter 4:02]:
Provided that the news agency may employ or use the services of a journalist referred to in subsection
(4) for the duration of that journalist’s accreditation.

86. The Complainants are asking the African Commission to determine whether the conditions
stipulated under Section 79 amount to restrictions, which constitute a violation of Article 9 of the
African Charter. It is evident from the above provision that the compulsory accreditation of journalists
can result in the imposition of liability, including penal sanction for those who cannot, or may not be
able to fulfil the requirements of accreditation, and to that end are deemed to intrude on the
professional practice of journalism.

87. Does compulsory accreditation in itself affect the enjoyment of freedom of expression?
88. Section 79(1) requires that before a journalist practices his/her profession within the Respondent
State’s territory, he/she must apply for and obtain a certificate of accreditation from the MIC. Section
83 of the AIPPA makes it clear that; “(1) No person other than an accredited journalist shall practice as
a journalist nor be employed as such or in any manner hold himself out as a journalist.”

89. Official accreditation of a journalist is a mandatory precondition for operating within the
Respondent State. Criminal sanctions are imposed for operating without accreditation. There are
mandatory requirements for accreditation and the possession of the requisite qualifications does not
guarantee provision of a certificate of accreditation.

90. The African Commission considers that registration procedures are not in themselves a violation
of the right to freedom of expression, provided they are purely technical and administrative in nature
and do not involve prohibitive fees, or do not impose onerous conditions. The requirements set out in
AIPPA, in the opinion of the Commission, undoubtedly have a negative effect on the exercise of
freedom of expression. There are no good grounds for official involvement in the registration of
journalists. It creates considerable scope for politically motivated action by the authorities. The
regulation of the media should be a matter for self-regulation by journalists themselves through their
professional organisations, or associations.

91. A regulatory body such as the MIC whose regulations are drawn up by government cannot claim
to be self-regulatory. Any act of establishing a regulatory body by law brings the body under the
control of the State. This is exactly the case with the AIPPA.

92. The compulsory accreditation of journalists has been held at both national and international
levels to be a hindrance to the effective enjoyment of the right to freedom of expression.
93. In its Advisory Opinion on Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism10, the Inter-American Court of Human Rights emphasised the important role of
the press in the development of a free and democratic society. The Costa Rican government
approached the Court for an advisory opinion whether “…the compulsory membership of journalists
and reporters in an association prescribed by law for the practice of journalism is permitted or included
among the restrictions or limitations authorized by Articles 13 and 29 of the American Convention on
Human Rights.” In responding to the Costa Rican government’s question the Court stated that a law
providing for compulsory association and, thus, barring non-members from the practice of journalism
was incompatible with the American Convention, as it would deny access to the full use of the news
media as a means of expressing opinions or imparting information.

94. The Inter-American Court noted further that compulsory licensing of journalists or the requirement
of a professional identification card does not mean that the right to freedom of thought and expression
is being denied, nor restricted, nor limited, but only that its practice is regulated. Compulsory licensing,
the Court held, “seeks the control, inspection and oversight of the profession of journalists in order to
guarantee ethics, competence and the social betterment of journalists…”. The accreditation of
journalists may thus be beneficial to the profession, provided though it is done in a manner that does
not infringe on the effective enjoyment of the rights of journalists to freely express themselves or
receive and disseminate information.

95. Distinguishing the compulsory registration of persons of other profession from the registration of
journalists, the Court held that;
“…within this context, journalism is the primary and principal manifestation of freedom of expression of
thought. For that reason, because it is linked with freedom of expression, which is an inherent right of
each individual, journalism cannot be equated to a profession that is merely granting a service to the
public through the application of some knowledge or training acquired in a university or through those
who are enrolled in a certain professional… The argument that a law on the compulsory licensing of
journalists does not differ from similar legislation applicable to other professions does not take into
account the basic problem that is presented with respect to the compatibility between such a law and
the Convention. The problem results from the fact that Article 13 expressly protects freedom ‘to seek,
receive, and impart information and ideas of all kinds… either orally, in writing, in print…’. The
profession of journalism – the thing journalists do – involves, precisely, the seeking, receiving and
imparting of information. The practice of journalism consequently requires a person to engage in
activities that define or embrace the freedom of expression which the [Charter] guarantees.”

96. The Court went on to state that;
“…this is not true of the practice of law or medicine, for example. Unlike journalism, the practice of law
and medicine – that is to say, the things that lawyers or physicians do – is not an activity specifically
guaranteed by the Convention [Charter]. It is true that the imposition of certain restrictions on the
practice of law would be incompatible with the enjoyment of various rights that the Convention
guarantees.…But no one right guaranteed in the Convention exhaustively embraces or defines the
practice of law as does Article 13 when it refers to the exercise of a freedom that encompasses the
activity of journalism. The same is true of medicine’.

97. The African Commission has considered the opinion expressed by the Inter-American Court on
Human Rights in the Costa Rican case, and finds a great deal of persuasion in the reasoning and the
approach adopted by the Inter American Court on the question of compulsory licensing of journalists.
The Commission is convinced that the question of compulsory accreditation is the same as
compulsory licensing which was addressed by the Inter-American Court. The Commission is inclined
to accept the argument that compulsory licensing or accreditation amounts to a restriction of the
freedom to practice the journalistic profession where it aims to control rather than regulate the
profession of journalism. Regulation is acceptable where it aims at the identification of journalists, the
maintenance of ethical standards, competence, and the betterment of the welfare of journalists. In
other words the aim of registration should be for purposes of betterment of the profession rather than
its control, since control by its nature infringes the right to express oneself. Articles 60 and 61 of the
African Charter enjoin the Commission to seek inspiration from other international human rights
instruments, precedent and doctrine.

98. The Inter-American Court found that compulsory licensing aimed at controlling journalists was a
violation of Article 13 of the American Convention. By applying the same logic, and analogy to the
conditions stipulated for compulsory accreditation under AIPPA, without which, one could not practice
journalism, the African Commission finds that section 79 of AIPPA constitutes a violation of Article
9 under the African Charter.

99. Section 80 of AIPPA makes it clear that;
‘(1) No person other than an accredited journalist shall practice as a journalist nor be employed as
such or in any manner hold himself out as a journalist. No person who has ceased to be an accredited
journalist as a result of the deletion of his name from the roll, or who has been suspended from
practising as a journalist, shall, while his name is so deleted, or is so suspended, continue to practice
directly or indirectly as a journalist, whether by himself or in partnership or association with any other
person, nor shall he, except with the written consent of the Commission, be employed in any capacity
whatsoever connected with the journalistic profession.

100. The Respondent State argued that the restrictions could be imposed in the interest of public
order. It also stated that the limitations are permissible and that the exercise of the right is not
absolute. The African Commission having looked at Section 79 of AIPPA, holds that the provision
does not mention if the said conditions were made in the interest of public order. In fact the reading
of Article 9.2 suggests that the phrase “within the law” applies to the actual dissemination and
expression of opinion and ideas, rather than pre-accreditation conditions. In our view, any conditions
prescribed for the accreditation of journalists should be aimed at facilitating, rather than impeding the
exercise of the right. In the Communication 232/99 John D. Ouko/Kenya,
13 the African Commission commenting on Article 9 stated the following; ”[t]he above provision guarantees to every individual the right to free expression, within the confines of the law. Implicit in this is that if such opinion is contrary to laid down laws, the affected individual or government has the right to seek redress in a court of law. Herein lies the essence of the law of defamation…………”

101. The Complainants argue that, the accreditation conditions are onerous, and aimed at controlling
journalists through the exercise of prior self censorship, and obstruction of the work of journalists.
They submitted that there are civil and criminal sanctions within Zimbabwe, which provide remedies in
the event journalists violate legal provisions during the exercise of their profession. They argue against
the conditions for compulsory accreditation.

102. The African Commission agrees with these submissions and states that the presence of laws
which provide for civil and other legal sanctions in the event of any injury caused, or infraction of the
law by journalists during the practice of their profession, coupled with self regulation, would provide an
adequate mechanism for the regulation and control of the journalism profession in a democratic
society, without the necessity of the rigorous regime under AIPPA.

103. The right to freedom of expression is protected by national, regional as well as international
human rights instruments. One common thread that runs through the freedom of expression
guarantees at all levels is the fact that the right to freedom of expression is not absolute.

104. The European Convention on Human Rights regulates freedom of expression in Article 10(2)
and spells out the legitimate aims that can justify the restriction of freedom of expression, states that:
“[t]he exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.”

105. Article 13 of the American Convention on Human Rights guarantees the enjoyment of the right
of freedom of expression. Article 13(2) provides that the exercise of freedom of expression; “shall not
be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be
established by law to the extent necessary to ensure respect for the rights and reputation of others as
well as to protect national security, public order, public health, or morals.

106. Article 10 of the European Convention, 13 of the American Convention and Article 9 of the
African Charter all emphasise that the exercise and enjoyment of freedom of expression can be
restricted under lawful conditions.

107. The African Commission has adopted a Declaration of Principles on Freedom of Expression in
Africa which upholds certain basic principles aimed at enhancing the enjoyment of freedom of
expression. Principle II of the Declaration states that; “(1) No one shall be subject to arbitrary
interference with his or her freedom of expression; and (2). Any restrictions on freedom of expression
shall be provided by law, serve a legitimate interest and be necessary in a democratic
society”(emphasis added).
The African Commission reads from the foregoing that the right to freedom of expression may be
restricted by legislation which aims to protect the public or individuals, against practice of journalism
which deviates from certain basic norms and legitimate interests in a democratic society. The
restrictions imposed by AIPPA do not fall within those norms or interests.

108. The individual’s right to freedom of expression thus carries with it the right to impart information
to others. The right to freedom of expression within the context of the African Charter must also be
read together with the duties of the individual under Article 27. Hence when an individual’s freedom of
expression is unlawfully restricted, it is not only the right of that individual that is being violated, but
also the right of all others to “receive” information and ideas. When the Charter proclaims that every
individual has the right to receive information and disseminate opinions, it also implicitly emphasises
the fact that the expression, reception and dissemination of ideas and information are indivisible
concepts. This means that restrictions that are imposed on dissemination represent, in equal measure,
a direct limitation on the right to express oneself freely. The Commission is thus of the opinion that the
two dimensions of the right to freedom of expression must be guaranteed simultaneously.

109. In the present communication, the Respondent State cites the protection of public order,
security and public safety as reasons to ensure the regulation of the profession of journalism. It argues
further that the practice of journalism does not place it beyond statutory regulation and any such law
has however to conform to the stringent requirements of limitations provided for by the Constitution.
The Commission finds that the notion of public order in a State implies conditions that ensure the
normal and harmonious functioning of institutions on the basis of an agreed system of values and
principles. The Commission notes however that maintenance of public order in the exercise of the
freedom of expression is perfectly conceivable without the necessity of restricting the practice of
journalists.

110. Further, the same concept of public order in a democratic society demands the greatest
possible amount of information. It is the widest possible circulation of news, ideas and opinions as well
as the widest access to information by society as a whole that ensures this public order.

111. In the instant communication, the restrictions imposed on the practice of individual journalists
can thus not be justified on the grounds of public order.

112. With regards to the Respondent’s assertion that the restrictions imposed by the AIPPA are
within the domestic law of Zimbabwe, in conformity with Section 20 (2) of the Constitution of the
Respondent State, the Commission notes that, the meaning of the phrase “within the law” in Article
9.2 must be interpreted in the context of Principle II as elaborated under theDeclaration of Principles
on Freedom of Expression stated hereinabove. In other words, the meaning of the phrase “within the
law,” must be considered in terms of whether the restrictions meet the legitimate interests, and are
necessary in a democratic society. In addition, the concept of “within the law” employed in the Charter
cannot be divorced from the general concept of the protection of human rights and freedoms.

113. In Dawda Jawara v. The Gambia14, the African Commission elaborated the meaning of such
phrases such as; ‘in accordance with the law’, or ‘previously laid down by law’ or ‘within the law’. In
[those] communications, the Republic of The Gambia defended arbitrary arrests and detention and
stated that it was acting within the confines of legislation ‘previously laid down by law’, as required by
the wordings of Article 6 of the Charter.

114. The Commission rejected the arguments by The Gambia and restated its decision in Alhassane
Aboubacar v Ghana15, that
“competent authorities should not enact provisions which limit the exercise of this freedom. The
competent authorities should not override constitutional provisions or undermine fundamental rights
guaranteed by the constitution or international human rights standards. This principle applies not only
to freedom of association but also to all other rights and freedoms. For a State to avail itself of this
plea, it must show that such a law is consistent with its obligations under the Charter…’

115. The Commission adopts a broader interpretation of phrases such as “within the law” of “in
accordance with the law” in order to give effect to the protection of human and peoples’ rights. To
be “within the law” the domestic legislation must be in conformity with the African Charter or other
international human rights instruments and practices. The Respondent State cannot argue that the
limitation placed by AIPPA was permissible “within the law” i.e. within its domestic law. This would be
tantamount to admitting that the exercise of freedom of expression is left solely at the discretion of
each State Party. This, in the opinion of the Commission, will cause jurisprudential/interpretational
chaos, as each State Party will have its own level of protection based on their respective domestic
laws.

116. The African Commission succinctly made this point in Constitutional Rights Project et al
/Nigeria16 where it stated the following;
“[a]ccording to Article 9.2 of the Charter, dissemination of opinions may be restricted by law. This does
not however mean that national law can set aside the right to express and disseminate one’s opinion
guaranteed at the international level: this would make the protection of the right to express one’s
opinion ineffective. To permit national law to take precedence over international law would defeat the
purposes of codifying certain rights in international law and indeed, the whole essence of treaty
making”.

117. The Commission therefore finds that the Respondent State’s arguments that the accreditation of
journalists and prohibition of falsehood are on grounds of public order, safety and for the protection of
the rights and reputation of others, to be unsustainable and an unnecessary restriction of the
individual’s practice of journalists.

118. Similarly, by preventing journalists from freely exercising their right to freedom of expression, the
Respondent State inevitably violates the freedom of expression of the Zimbabwean society by
depriving the society the right to receive information due to the restrictions imposed on the journalists’
right to disseminate information.

119. The African Commission therefore finds that Section 80 of the Access to Information and
Protection of Privacy Act(Chapter 10:27) of 2002, was not necessary, it did not address any legitimate
interest such as to require compulsory accreditation of journalists. It reiterated the restrictions imposed
by Section 79, without giving any justification for such restrictions. The African Commission therefore
finds that Section 80 is incompatible with Article 9 of the African Charter on Human and Peoples’
Rights.

120. The African Commission finds further that while accurate reporting is the goal to which all
journalists should aspire, there will be circumstances under which journalist will publish or disseminate
information, opinion or ideas, which will contravene other persons’ reputations or interests, national
security, public order, health or morals. Such circumstances cannot be foreseen during accreditation.
In such circumstances, it is sufficient if journalists have made a reasonable effort to be accurate and
have not acted in bad faith.

121. The African Commission acknowledges the argument by the Respondent State that the rights of
individuals, including the right under Article 9 are not absolute, hence the inclusion of Article 27 of the
Charter on the duties of individual towards others. In the case of journalists, when they fail in their duty
to respect the rights of others, when exercising their rights to free expression, then their right ceases to
be absolute. It is then that the civil and other legal remedies will take their natural course. The African
Commission holds that the Zimbabwe domestic legal system can grant remedies to such false publication, and which therefore obviate the necessity for the restrictions complained against.

122. To adopt legislation such as AIPPA aimed at or under the pretext of protecting public order,
health or morals, is tantamount to imposing conditions for prior censorship.

123. The African Commission is satisfied that Sections 79 and 80 of AIPPA impose restrictive
accreditation conditions and excessive burden on journalists and restrict their effective enjoyment of
the right to freedom of expression.

124. The Commission thus concludes that the arguments advanced by the Respondent State in
justification of the restriction of the journalists’ right to freedom of expression are incompatible with
obligations assumed by the Respondent State to respect Article 9 of the Charter. Accordingly, the
Commission considers that the communication discloses a violation ofArticle 9 of the Charter.

125. In view of the above reasoning, the African Commission recommends that the Respondent
State:
1. Repeal Sections 79 and 80 of the AIPPA;
2. Decriminalise offenses relating to accreditation and the practice of journalism;
3. Adopt legislation providing a framework for self regulation by journalists;
4. Bring AIPPA in line with Article 9 of the African Charter and other principles and international
human rights instruments; and
5. Report on the implementation of these recommendations within six months of notification
thereof.

 

Adopted during the 6th Extra-Ordinary Session of the ACHPR, Banjul, The Gambia. April, 2009.

Footnotes
1. Section 78 provides that “Subject to this Act and any other Law, a Journalist shall have the following rights
(hereinafter in this Act collectively referred to as “journalistic privilege”), i. to enquire gather, receive and
disseminate information; ii. to visit public bodies with the express purpose of carrying out duties as a journalist; iii.
to get access to documents and materials as prescribed in this Act; iv. to make recordings with the use of audiovideo equipment, photography and cine-photography; v. to refuse to prepare under his signature reports and
materials inconsistent with his convictions; vi. to prohibit the publication of, remove his or her signature from or
attach conditions to the manner of using a report or material whose content was distorted, in his or her opinion, in
the process of editorial preparation.”
2. Judgment No. S.C. 136/02; Const. Application No. 252/02; Supreme Court of Zimbabwe, Chidyausiku CJ,
Sandura JA, Cheda JA, Ziyambi JA & Malab JA; Harare November 21, 2002 & February 5, 2004.
3. Communications 105/1993, 128/1994 and 130/1994
4. In that decision, the Supreme Court stated that “The Constitution confers no right on an individual to falsify or
fabricate information or publish falsehoods. Section 20 of the Constitution protects the right to impart and receive
information, not falsehoods. Falsehoods are not information.”
5. Please see footnote 3 [sic] above.
6. OC-5/85, November 13, 1985, Ser.A, No. 5.
7. Zambia High Court Civ. Case No. 95/HP/2959.
8. 2000 Vol. 1 ZLR page 552 at 558.
9. The State in this regard makes references to the Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister
of State for Information and Publicity and 2 others SC-111-04, Association of Independent Journalists and Others
v The Minister of State for Information and Publicity and 2 Others SC-136-02, and Capital Radio (Pvt) Ltd v
Broadcasting Authority of Zimbabwe and Others SC-128-02.
10. Advisory Opinion OC-5/85, November 13, 1985, Inter-Am. Ct. H.R. (Ser. A) No. 5 (1985).
11. Id. Paras 71-73.
12. Id. para. 74.
13. Communication 232/99, 14th Activity Report, also reported in the IHRDA Compilation of Decisions of
Communications of the ACHPR, extracted from the Commission’s Activity Reports 1994-2001, at page 149.
14. Communications 147/95-149/96
15. Communication 103/1993
16. Consolidated Communication 140/94-141/94-145/95 13th Annual Activity Report. 1999-2000)