By Jacqueline Chikakano
The author is Legal officer, MISA–Zimbabwe. This is a chapter from a recently issued State of Right to Information in Africa Report 2014 and is reprinted with permission. (See previous FreedomInfo.org report.)
Zimbabwe is currently led by an elected government that came into power after the July 31, 2013 elections following the unity government that had been in power since the disputed 2008 general elections. The country is enjoying relative peace under the new government despite reported factional fights in the ruling party the ZANU–PF.
Aside from having a new government, the country also ushered in a new Constitution following the March 2013 constitutional referendum. Since this Constitution came into force, the government is reportedly in the process of re–aligning the existing laws with the new Constitution from as far back as May 2013. Aside from this process of re–aligning laws, the Ministry of Information, Media and Broadcasting Services in December 2013 set up a panel to inquire into the status and needs of the information and media industry.[1] Among other things the panel is assessing the country’s laws that impact on the media and on access to information with a view to coming up with recommendations for reform.
Constitutional Provision
Section 62 of the Constitution of Zimbabwe Amendment No. 20 of 2013 provides for the right of access to information. Access to information is provided for as a stand–alone right, unlike the previous constitution in which aspects of access to information were found within the provision on freedom of expression. Section 20 (1) of the former Constitution provided as follows:
Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.
On the other hand, Section 62 of the new constitution is a stand–alone provision on access to information, separate from that of freedom of expression (section 61) but even more importantly it clearly outlines the parameters within which this right can be exercised. Among other aspects the provision in Section 62 states:
Every Zimbabwean citizen or permanent resident, including juristic persons and the Zimba- bwean media, has the right of access to any information held by the State or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability.
Every person, including the Zimbabwean media, has the right of access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right. And that legislation must be enacted to give effect to this right[2]
While the constitutional provision are a marked improvement compared to the former situation, a worrisome aspect is the existence of Section 86 of the same constitution, which imposes further grounds for limitations to rights outlined in the Bill of Rights, which can possibly detract from the celebrated gains noted above.
Despite the existence of the largely progressive new constitution, which is now over a year old, Zimbabwe remains saddled with laws that limit the enjoyment of access to information in particular. The very law that is meant to facilitate the enjoyment of this right, Access to Information and Protection of Privacy Act (AIPPA), contains a number of provisions and aspects that detract the very right it is meant to protect. For example:
- It has widely formulated exemptions to information that can be disclosed, contrary to a narrower limitations clause provided for in section 62 of the new Constitution.
- It has lengthy and uncapped timeframes within which a body can respond to information, i.e. a body has up to 30 days to respond to a request, and the period can be extended by 30 days, which can be further extended depending on the circumstances.
- It is limited in its application in that it only applies to information held by public bodies and does not extend to information held by non–State entities, yet the new Constitution extends the right to information to such as well (s 62(2)).
Aside from AIPPA, access to information is also limited by provisions in other legislation such as the Official Secrets Act of 1970 whose sections 4 and 8 contain widely couched offences such that it is not clear what exactly constitutes an offence. Also the existing laws that criminalise freedom of expression and of the media such as false news, insult and criminal defamation laws as found in laws such as sections 31, 33, 95 and 96 of the Criminal Law (Codification and Reform) Act (chapter 9.23) also negatively affect the extent to which the media is free to disseminate some information for fear of criminal repercussions.
Over the years MISA–Zimbabwe has undertaken a multi–pronged approach to lobbying for greater protection and guaranteeing of access to information as a right. This has included lobbying for reforms to this law at various levels, including at government, political party and even at the level of the African Commission on Human and Peoples’ Rights, to increase pressure on the government of Zimbabwe, for example in the IJAZ[3] case, in which sections of AIPPA were being challenged. Over the years the organisation has also conducted publicity campaigns on the fact that ATI is a right which also facilitates the enjoyment of other rights; for example, the organisation’s programming theme for the year is ”The right to know, key to life” which it has embedded on a number of its publications including on billboards across the capital city.
Also as a way of facilitating ATI, the organisation has partnered with local authorities and community based organisations to erect “information kiosks” across the country in which it provides information to local communities including newspapers and various information materials. Over the years, the organisation has also, under the banner of its regional office, conducted an annual survey that tests the openness and level of information dissemination in public institutions titled “Government Secrecy in an Information Age” whose report is launched publicly in the presence of government officials and the institutions involved in the survey.
Recommendations
- While it is commendable that Zimbabwe took the initiative to become one of the first countries on the continent to put in place an ATI law, the fact that 12 years later the right is still barely accessed by the populace only points to the need for a review of this law to ensure that it effectively guarantees this right. Part of the work has already been done with the inclusion of a progressive provision on access to information in the Constitution, and Zimbabwe should therefore move to repeal the existing law and replace it with a law that specifically provides for access to information only, unlike the current situation where the law also deals with regulation of the media. The new law should, among other things:
- include provisions to ensure wide promotion of the right as well as the Act and the measures contained therein as well as create an independent oversight mechanism to oversee implementation of the Act and promotion of the right which is lacking under the current context.
- To complement the new ATI law, the government should further put in place measures to promote openness and a culture of disclosure of information in government institutions as well as undertake other measures to ensure information dissemination to areas that are further form the major cities that, for instance, lack television and radio reception. This could be in the form of resuscitation and resourcing of information centres, which MISA–Zimbabwe has found are very popular and well used by people in such areas.
- Zimbabwe should take advantage of the ongoing process of re–alignment of laws and move to repeal all provisions that criminalise expression such as insult, false news and criminal defamation laws, as the continued existence of these laws is hampering the media’s ability to source and disseminate public interest information
1 The Information and Media Panel of Inquiry–IMPI
2 Further, other provisions in the Constitution also lay a strong basis for the advancement of access to information in Zimbabwe. For example, Section 3(1) (h) states that one of the founding values of Zimbabwe as a country is good governance, and it goes on to state that the State is bound by principles of good governance which include, transparency, justice and accountability (s 3(2)(g)). Also, section 6 increases the number of official languages from three to 16, including sign language, as well as mandating that the State take measures to encourage the use and development of forms of communication that suit persons with all forms of disabilities s (6) (4) and s 22).
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