An Analysis of the Access to Information Campaign

Undertaken in Zimbabwe

by the Media Institute of Southern Africa (MISA)

A Research Study done by Earnest Mudzengi on behalf of MISA-Zimbabwe

June 2006

1

1. INTRODUCTION

As African countries struggle to transform political independence into a more meaningful state of economic and social emancipation, access to information has emerged as one of the key factors in coming up with effective and far-reaching poverty reduction initiatives. It is against this background that the Media Institute of Southern Africa (MISA) launched the ASK campaign in Botswana, Lesotho, Malawi, Namibia and Tanzania. The objective of this campaign is to call for regional governments to introduce laws and policy frameworks that facilitate access to information and entrench the right of access to information in their countries’ constitutions.

While the ASK campaign was specifically targeted at the mentioned five countries, its objectives are also relevant to Zimbabwe, where the local chapter of MISA has been advocating for a constitutional and legislative framework that provides for and guarantees the right to access information in line with the full realization of media and socio-economic rights. This Zimbabwean advocacy for the full enjoyment of the right of access to information is the focus of this appraisal, which is for the purpose of assessing the ASK campaign and as a result thereof assisting MISA forge new or strengthen existent advocacy strategies around the current legislative and policy framework

The appraisal starts on the basis of an assessment of Zimbabwe’s contemporary right to access information legislation and policy with a view to ascertaining whether these are in line with best practices for freedom of expression as established by International Conventions. In this respect, there will be a review of Zimbabwe’s constitutional and legislative framework with a view to ascertaining whether it is in line with democratic norms in which the promotion the right to access information is part of the broader goal to foster an unfettered enjoyment of socio-economic rights by the citizenry at national and global levels. In the interest of capturing the best possible practices, this review will include a comparative analysis of the Zimbabwean scenario with that of other jurisdictions.

The analysis on the existing constitutional, legislative and policy framework will be followed by a critical look at the extent to which the strategies being employed by MISA-

2

Zimbabwe are effective in ensuring that citizens are aware of the access to information legislation and whether they are able to use this legislation to improve their socio-economic status and reduce poverty.

2. BACKGROUND AND CONTEXTUAL INFORMATION

In the interest of establishing the relevance of this appraisal, it is necessary that it be grounded in Zimbabwe’s politico and socio-economic context. The country is in a deepening socio-economic crisis that is, among other things characterized by the following:

An unprecedented unemployment level of close to 80% A debilitating inflation rate of over 1000% that is sky rocketing the cost of living

for the majority of people Shortage and in affordability of basic commodities such as bread, sugar, cooking

oil, maize meal, soap, margarine, salt and milk. An acute shortage of fuel which has severely affected the private and public

transport sectors Low levels of foreign currency A health delivery system which is close to collapse A devastating HIV/AIDS infection level of close to 25% of the active population

and which has decimated families, leaving thousands of orphans A state of homelessness and destitution for close to 700 000 Zimbabweans

following the state-sanctioned Operation Murambatsvina that saw homes and informal businesses being destroyed in May 2005.1

This socio-economic context points to an acute state of poverty that can best be addressed by a holistic approach towards restoring the people’s social and economic dignity. Considering that the people’s right to access information that is relevant to their day to day survival needs and chores, it is necessary that there be an entrenchment and upholding of the right to access information in the country’s constitutional and policy framework.

3. OBJECTIVES OF THE ANALYSIS.

The objectives of this assessment are presented as follows:

a. To do a critical analysis of Zimbabwe’s right to access information legislation with a view to ascertaining whether this right is linked with poverty reduction strategies and issues

b. To evaluate MISA-Zimbabwe’s lobbying and advocacy strategies with a view to establishing initiatives that are effective in the campaign for the establishment of a policy framework that upholds the right to access information among other socio-economic rights

1 See the Amnesty International Report 2006

3

c. To establish whether people are aware of the existence or need for access to information legislation and if they are able to utilize such legislation to improve their socio-economic situation and reduce poverty

d. To come up with recommendations for the way forward in pushing for the enactment of access to information (AI) constitutional provisions, and the enactment of stand alone AI legislation.

4. METHODOLOGY

While some snapshot surveys were utilized in investigating certain aspects of this study, qualitative interviews and document analysis were the major forms of data collection.

4.1. Document Analysis

Some time was spent in the analysis of primary and secondary documents relating to the field of analysis. Primary documents included the Constitution of Zimbabwe, Acts of Parliament governing the media in Zimbabwe, legislative frameworks within other SADC countries as well as MISA-Zimbabwe programme reports. Such sources were examined with a view to establishing the extent to which they provide for the people’s right to access information. These documents were also examined in order to establish whether they relate the right of access to information to socio-economic rights in general and poverty reduction initiatives in particular. The documents were consulted and examined on the basis of the objectives and principles of promoting the citizenry’s right to access information in line with meeting the people’s socio-economic needs and poverty reduction. The objectives and principles were based on the understanding of the information landscape as a public sphere platform through which people from different socio-economic segments are able to enjoy their political, social and economic rights.2

Secondary documents that were utilized in line with the above-illustrated scope include textbooks, commentaries, research papers and periodicals. Such sources were used for the purpose of interpreting, describing and explaining the existing constitutional and legislative framework pertaining to the right to access information. They were also utilized in the comparison of Zimbabwe’s AI constitutional and legislative framework with that of other jurisdictions. Secondary sources also came in handy with regard to the drawing of theoretical and practical linkages between freedom to access information and the poverty eradication cause. MISA publications such as Freepress, So is this Democracy and others were particularly useful in providing general knowledge and insights into MISA’s campaign initiatives for the institutionalization of ATI policy frameworks that promote the enjoyment of the citizenry’s socio-economic rights.

4.2. Qualitative Interviews

2 The Public sphere concept that has been referred to here has been adopted from the original Public Sphere concept that was espoused by Jugern Habermus

4

Qualitative interviews were carried with selected groups of people for the purpose of drawing lessons from their views on issues relevant to this appraisal. Interviewees were selected from a broad category of informants drawn from the MISA (Zimbabwe) secretariat, members of the public, journalists, civic society and the academia.

4.3. Snapshot Surveys

Small-scale surveys were done in selected areas to establish the awareness among members of the public on the existence of AI legislation and its implication on the exercise of their socio-economic rights. The surveys were also for the purpose of establishing the effectiveness of advocacy and lobby initiatives aimed at the institutionalization of AI legislation in line with socio-economic rights and general poverty eradication.

4.4. Policy Analysis

The gathering and analysis of data was conducted from the vantage point of policy analysis, an applied social science discipline that uses multiple methods of inquiry for the purposes of transforming policy-relevant information that may be used in political and socio-economic settings to resolve policy problems.3 The integrated policy analysis method was the preferred form of analysis for this appraisal. This form of analysis as Dunn points out is a comprehensive form of analysis combining the transformation of information both before and after policy decisions have been taken. As Mazango4 has observed, integrated policy analysis is continuous, iterative and unlimited, linking retrospective, contemporary and future phases of policy inquiry, advocacy and formulation. In carrying out an analysis of AI legislation and policies in Zimbabwe, this inquiry focuses on policy decisions that have already been taken with view to refining them in the interest of advocating for the shaping of future policies that are necessary for the betterment of society.

The right of access to information is central to the exercise of socio-economic rights in as much as it promotes and fosters the values and principles of transparency, accountability, openness and informed participation in political and socio-economic matters. It is with respect to the exercise of the fundamental right of access to information that the Zimbabwean constitutional, legislative and policy framework is going to be measured. This is going to be done on the best practice understanding that information is a basic right and a basic need for all people and that it is only with information that citizens can fully participate in a democracy and actively exercise their human rights.5

3 W Dunn, Public Policy Analysis: An Introduction, Patience Hall, 1981

4 E Mazango, Telecommunications sector Reform: Liberalisation and Universal service Policy in Zimbabwe, MA Thesis, University of Oslo, 1998

5 L Chipare, 2004, Media, Freedom and Development: What is the link?, Freepress May 2004

5

In line with the stated policy analysis approach, the overriding premise for the measurement of the relevance and effectiveness of Zimbabwe AI policy regime is that information, and by implication the right to access information, is the key to the system of distributive justice in which the socio-economic development of citizens is held supreme in matters of governance. Being guided by this premise, this inquiry moves ahead to measure Zimbabwe’s constitutional and legislative framework to establish whether it provides for a political openness that is centered on the institutionalization of information channels between citizens and officials, as opposed to personal channels, which empower special interests and provide opportunities for corruption.6

5. MAJOR FINDINGS ON ZIMBABWE’S CONSTITUTIONAL & LEGAL FRAMEWORK vis-à-vis ERXAMPLES FROM WITHIN SADC.

The freedom of expression and the right to access information, being the lifeblood of any democratic society must be at the core of any democratic constitution. This brings to fore a number of critical questions on the suitability of the Zimbabwean constitution to be counted among democratic constitutions: Does the constitution guarantee the freedom of expression, does it guarantee press freedom and most importantly does it guarantee the right of access to information within the context of upholding the citizenry’s socio-economic rights?

A critical look at the constitution of Zimbabwe proves that it does not guarantee the right for citizens to access information. While Section 20 of the constitution states that everyone has the right to enjoy the freedom of expression, there is no specific constitutional guarantee of access to information held by government departments and other entities whose operations and existence have a bearing on the citizenry’s socio-economic welfare. In a scenario in which the individual citizen’s s access to information is not guaranteed in the constitution, the remedy may partly lie in the fact that citizens may access this fundamental right through the media. However, the constitution of Zimbabwe does not, explicitly guarantee the freedom of the media. Media freedom is only guaranteed vaguely and is subject to crippling limitations. Section 20 of the Zimbabwean constitution, which relates to the freedom of expression states:

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.7

This freedom of expression and the media that is jealously conferred is subjected to limitations that almost render it unavailable. A minefield of limitations to the freedom of expression is explicitly laid lout in subsection 2 of section 21 of the constitution, which provides:

Nothing contained or done under the authority of any law shall be held in contravention of subsection (1) to the extent that the law in question makes provision- 6 D Brautigam, Governance and Economy: A Review, Washington D.C., The World Bank, 1991 7 See section 20 of the Constitution of Zimbabwe

6

a) in the interest of defence, public safety, public order, the economic interests of thestate, public morality or public health;

b) for the purpose of-i) protecting the reputations, rights and freedoms of other persons or the

private lives of persons concerned with legal proceedings;ii) preventing the disclosure of information received in confidenceiii) maintaining the authority and independence of the courts or tribunals

or Parliament;iv) regulating the technical administration of, technical operation or general

operation of telephony, telegraphy, posts, wireless broadcasting or television or creating or regulating any monopoly in these fields;

v) in the case of correspondence, preventing the unlawful dispatch therewith of other matter;

c) that imposes restrictions on public officers;

except so far as that provision or, as the case may be, the thing done under their authority is shown not to be reasonably justified in a democratic society.

While the above cited exception might be deemed to be in line with international norms and standards, it is notable that the exceptions are very widely drawn and broader than those permitted under international law instruments.8

This makes the constitution of Zimbabwe different from constitutions of some countries in the Southern African Development Community (SADC) region, which explicitly guarantee the right of access to information and freedom of the media. A case in point is that of the South African constitution. Among other provisions that guarantee the enjoyment of socio-economic rights, Section 32 of the South African constitution guarantees citizens the right of access to information held by the state and other persons or institutions. Section 16 of South Africa’s constitution also clearly provides for the freedom of expression and the media as quoted below:

Everyone has the right to freedom of expression, which includes

a. freedom of the press and other media;

b. freedom to receive or impart information or ideas; c. freedom of artistic creativity; and d. academic freedom and freedom of scientific research.

Contrary to the situation in Zimbabwe, South African citizens can therefore enjoy access to information through constitutional provisions that guarantee individual citizens the right to access information. Access to information can also be through the press and other media whose freedom is explicitly guaranteed in the constitution. In Namibia there might

8 R Louw , Undue Restriction: Laws Impacting on Media Freedom in the SADC, Media Institute of Southern Africa, 2004, page 117

7

be a number of undue restrictions but the constitution at least provides for and guarantees media freedom. Article 21 (I) of the Namibian constitution expressly states that:

All persons shall have the right to:

a) freedom of speech and expression, which shall include the freedom of the press and pother media.

The same can be said of the Malawian constitution whose section 36 provides that:

The press shall have the right to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information.

What is also of interest is that the Malawian constitution fully embraces international law norms on derogations from fundamental rights and freedoms, requiring that restrictions must be prescribed by law and should be reasonable and justifiable in a democratic society.9 The constitution of Mozambique also specifically protects the right toinformation as an aspect of freedom of expression. Article 74 of the constitution states:

“All citizens have the right to freedom of expression and to freedom of the press as well as the right to information; Freedom of expression, which includes the right to disseminate ones own opinion by all legal means, and the right to information shall not be limited by censorship; freedom of the press shall include, in particular, the freedom of journalistic expression and creativity, access to sources of information, protection of professional independence and confidentiality, and the right to publish newspapers and other publications…”

This leaves Zimbabwe in the same category with regional countries such as Swaziland Tanzania, Lesotho and Botswana in having constitutions that do not explicitly guarantee the freedom of the media and the right of access to information. While other countries do not have constitutional clauses that specifically provide for the right of access to information, their constitutions are at least explicit in providing for the freedom of the media.

5.1. DENYING ACCESS UNDER THE PRETEXT OF GRANTING ACCESS: THE CASE OF THE ACCESS TO INFORMATION AND PROTECTION OF PRIVACY ACT (AIIPA)

Zimbabwean government officials claim that the country has stand-alone legislation that provides for the right of access to information in form of AIPPA. This law was enacted in 2002 at the height of the 2002 presidential election campaign in which the ruling ZANU 9 R Louw, opcit

8

(PF) party was facing a stern challenge from the opposition Movement for Democratic Change (MDC).

AIPPA grants accredited journalists the right to access to information that is held by public institutions. The information can be provided upon the presentation of a written request and payment of a fee for the required information. As stipulated in section 6 of AIPPA, the written request for information must provide adequate and precise details that enable the public body from which the information is being requested to locate the information. In cases in which the requested information is granted, those that would have requested for the information must be given an opportunity to examine the information or must be provided with a copy of the information if it can be reproduced. Where a copy cannot be provided, those requesting for information must be given an opportunity to take notes from requested records.

It is stipulated that the public body from which information is requested must respond within a maximum of thirty (30) days. There is, however, provision for this period to be extended for a further thirty days or longer with respect to circumstances that are prescribed in the Act. It is also notable that not all information can be accessed through AIPPA. As observed by Feltoe (2005), there are various types of information that either must not be disclosed or in respect of which heads of public bodies have discretion on whether to or not to disclose. The broad category of such classified information includes the following:

deliberations of Cabinet and local government bodies

advice relating to policy

information relating to client-attorney privilege

information whose disclosure will be harmful to law enforcement process and national security

information relating to non-governmental relations or negotiations

information relating to the financial or economic interests of a public body or the State

research information

information relating to personal safety

information relating to business interests of a third party

information relating to personal privacy

9

In Section 28 of AIPPA, there is a stipulation of information that must be disclosed in public interest. With respect to such information, the Act stipulates that it must be released to an applicant or members of the public affected, whether or not they have requested the information. Information that is relevant to this respect includes:

the risk of significant harm to the health or safety of members of the public;

the risk of significant harm to the environment

any matter that threatens national security; any matter that is in the interest of public security or public order, including any threat to public security or public order; but this must only be disclosed to the relevant law enforcement authorities;

any matter that assists in the prevention, detection or suppression of crime

If the head of the public body refuses access to information requested with respect Section 28 of AIPPA, the person requesting the information or an interested third part has a right to request the Media Commission to review the decision of withholding information.

A bird’s eye view of AIPPA, especially its Section 28 makes it appear to be a genuine ATI legislation that is motivated by the need to let citizens have liberty in accessing information that is necessary for the promotion and upholding of their socio-economic rights. However, as seen from another angle, the imperative for the allowance of a liberal accessibility of information for the enhancement of the citizenry’s welfare is however, seemingly washed away by inherent contradictions within AIPPA. An official with MISA Zimbabwe10 is of the opinion that there is no way AIPPA can promote socio-economic rights since it was enacted in a political context in which the ruling government was bent on imposing stringent controls on free information flow.

Similar sentiments have been echoed by the Zimbabwe Coalition on Debt and Development (ZIMCODD) whose information officer has observed that it is difficult for AIPPA to be used for the advancement of socio-economic rights since it is a tool for repressive control:

because of its overriding objective to give the government extensive powers to control the media [AIPPA] is seen as irrelevant and therefore unused by organizations seeking access to information to advance socio- economic rights.11

As ZIMCODD further observes, AIPPA, because of its onerous provisions, has been viewed as a piece of legislation that has submerged the right of access to information as an elite right. One of the clauses of AIPPA that has been cited in this regard is one stipulating those seeking information from public bodies to obtain the 10 Interview with Rashweat Mukundu, MISA (Zimbabwe), 20/06/200611 Simbiso Marimbe, ZIMCODD Information Officer… cit in Memeza, 2006

10

information upon paying a fee. This as ZIMCODD observes amounts to making information an expensive commodity.12

Other provisions upon which AIPPA has been found wanting relate to the creation of the Media and Information Commission (MIC) and its composition. As Wilbert Mandinde, the Legal Officer of MISA (Zimbabwe) observes, the recent determination in which the current MIC Chairperson was barred by the Zimbabwean High Court from presiding over the case in which the banned Daily News is seeking to be licensed points to the fundamental flaws within AIPPA. It has also been observed that the licensing of journalists that is a requirement within AIPPA is not an innocent regulatory measure but a pretext through which to sift out media practitioners and organizations that are deemed to be enemies of the ruling elite.13 This idea seems to make sense when one considers that media organizations that have been closed through AIPPA were either critical of government policy. A case in point is that of the Daily News and that of the Tribune whose publisher Kindness Paradza, a former Member of Parliament openly criticized AIPPA in the august house. Another case is that of the Bulawayo based Weekly Times that was also critical of government policy and could not live for long before being closed down by the MIC.

5.1.1. GLARING FAILURES TO ACCESS INFORMATION THROUGH AIPPA

As if to confirm the criticism that AIPPA is not there to promote but to prevent access to information, some citizens that have tried to access information through this piece of legislation have been met with frustrations. A good example is that of Mwelekeowa Non Governmental Organisation (MWENGO), a development oriented Non governmental organisation (NGO), whose main thrust is strengthen the capacities of NGOs in Eastern and Southern Africa to articulate and implement a development agenda rooted in African experience and analysis. As observed by Memeza opcit, MWENGO has faced the predicament of an organization that has attempted and failed to access information in state hands. From its experiences with the bureaucratic bungling and minefields of information in access that litter the AIPPA route, MWENGO has been able to make a distinction between instances where the information is readily made available; where access is denied and where the government department concerned does not have the administrative wherewithal to make available information even where it can. It is the last instance that MWENGO identifies as featuring prominently in attempts to access information. This instance- where a government department does not have the administrative capacity to make information available leads 12 Ibid13 Interview with Promise Mkwananzi, President Zimbabwe National Students Union (ZINASU), 21/06/2006

11

to mute refusals. In other words, the information is out there, and the official struggles to get hold of it. This, in the eyes of the requester, amounts to a refusal to furnish the requested information. MWENGO characterizes this as one of the problems that continues to vex even those public authorities that are willing to make available unclassified information. In addition to mute refusals, there have been instances where there have been outright refusals to grant information. This has been particularly the case in the areas of macro-economic policy formulation.14

Talking of accessing information through AIPPA it is perhaps interesting to note that there has only been one reported instance in which the access to information provision has been successfully used in Zimbabwe. This was by the by the opposition political party, the Movement for Democratic Change (MDC) when it compelled the Reserve Bank of Zimbabwe (RBZ) to avail foreign exchange receipts for public scrutiny.15 This points to a scenario in which a piece of legislation that is meant to promote access to information is largely not being used for the purpose that goes with its name. Considering that AIPPA has been utilized more in closing down newspapers, it is not surprising that it has largely been viewed in dissonance as an tool for government to control the free flow of information rather than as an avenue through which citizens can enjoy and realize their socio-economic rights. A snapshot survey conducted among security guards in the Avenues and Eastlea areas of Harare pointed to how most people have some vague idea of AIPPA as one of the repressive laws in the country but do not know what is contained in AIPPA. Fifteen security guards were consulted and ten of them said they have only heard of AIPPA being denounced by the opposition MDC leaders in their addresses at rallies. All the security guards interviewed showed no knowledge of provisions in AIPPA that guarantee them the right to access information from public bodies.

5.1.2. COMPARING AIPPA WITH SOUTH AFRICA’S PROMOTION OF ACCESS PROMOHTION OF ACCESS TO INFORMATION ACT (PAIA)

In a situation in which other regional countries are still to come up with legislation and policies that uphold the right of access to information, South Africa has emerged as the most formidable regional role model from which to learn. It is for this reason that countries such as Malawi 14 Memeza, opcit15 MDC Demands Forex Receipts From RBZ, Financial Gazette (Harare), June 13, 2002.

12

have modeled their proposed AI legislation in line with South Africa’s Promotion of Access to Information Act (PAIA) of 2000. PAIA has been observed to provide clear and detailed procedures for accessing a very broad range of both public and private information. PAIA also has exemption provisions that are widely seen as reasonable and subject to the public interest test. The legislation also provides for a mechanism for oversight and monitoring, which ensures continued improvements and refinement.16 A critical look at the PAIA points to how it, as opposed to AIPPA, broadly and openly provides for the right of access to information. This is shown, among other provisions, by the objectives of the Act which are presented as follows:

a) to give effect to the constitutional right of access to--

i) any information held by the State; and

ii) any information that is held by another person and that is required for the exercise or protection of any rights;

b) to give effect to that right--

i) subject to justifiable limitations, including, but not limited to, limitations aimed at the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance; and

ii) in a manner which balances that right with any other rights, including the rights in the Bill of Rights in Chapter 2 of the Constitution;

c) to give effect to the constitutional obligations of the State of promoting a human rights culture and social justice, by including public bodies in the definition of " requester", allowing them, amongst others, to access information from private bodies upon compliance with the four requirements in this Act, including an additional obligation for certain public bodies in certain instances to act in the public interest;

d) to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible; and

16 Kaitira Kandji: Programme Manager- MISA in a paper presented at a workshop: Media and Corruption:Raising the Bar, May 29 –June 3 2006, Park Plaza Hotel, Sandton, South Africa.

13

e) Generally, to promote transparency, accountability and effective governance of all public and private bodies by, including, but not limited to, empowering and educating everyone--

i) to understand their rights in terms of this Act in order to exercise their rights in relation to public and private bodies;

ii) to understand the functions and operation of public bodies; and

iii) to effectively scrutinize, and participate in, decision-making by public bodies that affects their rights.

As can be observed PAIA provides broader avenues through which the citizenry can access information held by the state including all branches of the Executive and organizations including those in the private sector that hold information which is important in the exercise and enjoyment of the citizenry’s rights. It is in this respect that public and corporate bodies are required by law to facilitate mechanisms that enable citizens to access information that is relevant to the exercise of their socio-economic rights. As pointed in the provisions of PAIA cited above, restrictions to access can only be those that are democratically justifiable.

The procedures for accessing information through the PAIA are also clearer and simple. To access information, one simply has to feel a form. Guiding manuals have also been made available in 11 different languages to ensure that a cross-section of the citizenry is aware of the access to information legislation and can utilize it for the advancement of their socio-economic status.

As opposed to Zimbabwe where the government appointed Media and Information Commission (MIC), the South African Human Rights Commission (SAHRC), an autonomous body whose existence is provided for in the country’s constitution plays the watchdog and facilitatory role in the exercise of the citizens’ right to access information in South Africa. In terms of PAIA, it is the duty of SAHRC to compile manuals on the Act including information on information officers, how the Commission can assist those seeking information, legal remedies available to requesters of information, fees and other relevant aspects. SAHRC also monitors the implementation of the Act and reports and makes recommendations to Parliament on matters pertaining to the exercise of the right of access to information.

In order to ensure that the generality of citizens are aware of their right to information and are able to exercise this right, SAHRC has the duty to conduct educational programmes that are meant to enhance the public’s understanding of PAIA. The Commission must also promote the dissemination of information by public bodies. On their part,

14

information officers of public bodies must prepare manuals containing basic details on public bodies. The manuals must also contain descriptions of subjects on which the bodies hold records and categories of records and of information available without anyone having to request access in terms of the PAIA. 17

6. MAJOR FINDINGS ON CONFORMITY WITH INTERNATIONAL CONVENTIONS AND NORMS

Considering the dynamics of globalization and the quest for democratization at global scale, it is also necessary that the issues of the right of access to information and the related advancement of socio-economic rights be viewed in the context of international standards for the protection Human Rights in general and the freedom of access to information in particular. In this respect, there is need for focus on the Universal Declaration of Human Rights (UDHR), the African Charter on Human and People’s Rights and other international Human Rights conventions in so far as they relate to issues of the right of access to information and the exercise of socio-economic rights. This is with the view of further establishing the status of AIPPA in relation to the centrality of the right of access to information in the enjoyment of socio-economic rights.

6.1. Universal Declaration of Human Rights (UDHR)

One of the important sections of the declaration is Article 19, which provides that:

Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Viewed with the factoring of the second and third generation tenets of Human Rights, which are concerned with socio-economic rights, Article 19 becomes relevant for the upholding of the global citizenry’s right to access to information with view to the entrenchment and exercise of socio-economic rights.

6.2. African Charter on Human and People’s Rights (ACHPR)

The relevant provision of the Charter with respect to the freedom of expression and access to information is Article 9 (2), which says:

17 See South Africa’s Promotion Access to Information Act

15

Every individual shall have the right to express and disseminate his opinions within the law

As pointed out by Louw (opcit), a potential source of uncertainty in Article 9 of ACHPR is that it does not expressly cover expression and dissemination of information. However the uncertainty has been cleared by the African Commission on Human and People’s rights, the official organ for the enforcement of the Charter. The Commission has developed principles to inform the application of Article 9. The principles, contained in the Declaration of Principles on Freedom of Expression in Africa make it clear that freedom of expression is guaranteed under Article 9 of ACHPR.18

Concerning derogations, Article 2 of the Commission’s Declaration of principles provides that any restrictions bon media freedom must be provided by law, serve a legitimate interest and be necessary in a democratic society.

6.3. International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is there to amplify and enhance the civil and political rights that are prescribed in UDHR. Freedom of the Media is protected under ICCPR’s Article 19 (2):

Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice

Where restrictions may be entertained on the exercise of freedom, the restrictions must be democratically justifiable and must not put the fundamental right of access to information and the freedom of expression into danger. Restrictions must be in line with Article 19(3) as follows:

i) The restriction must be provided by law;ii) Must be imposed for one of the purposes set out in sub-paragraphs (a) and

(b); andiii) must be justified as necessary for that state party for one of those

purposes19

18 See Article 1 of the African Commission’s Declaration of Principles on Freedom of Expression in Africa 19 Report of the Human Rights Commission to the General Assembly, 38th Session, Supp. No 40, 1983, cit in Louw, opcit, P.8

16

Other international conventions that are relevant to the exercise of the right to access information. These include regional protocols that apply to SADC and other regions. The bottom line is however that these conventions and protocols have been put in place under the banner of upholding the freedom of expression. The three major conventions that have been presented in this section shed the necessary light with respect to the international norms and standards for the exercise of the freedom of access to information within the holistic approach of advancing socio-economic rights that are broadly stipulated in the UDHR. Zimbabwe being a signatory to these international instruments must entrench in its constitutional, legislative and policy frameworks benchmarks that comply with the Human Rights norms and standards of which the right of access to information is an integral part.

As seen from what has so far been presented, the constitution of Zimbabwe does not explicitly provide for the freedom of expression and imposes some restrictions that are not democratically justifiable in the framework of the need to uphold the freedom of the media and the right of the citizenry to access information that is necessary for the exercise of their socio-economic rights. The same applies to AIPPA, the purported stand alone AI law that is found wanting in terms of democratically justifiable standards for the promotion of the citizenry’s right of access to information that pertains to their socio-economic welfare.

Apart from a restrictive constitution and AIPPA, there are other Zimbabwean laws that impinge on the people’s right to access information. These include the Official Secrets Act, the Law of Defamation, the Public Order and Security Act (POSA), the Privileges, Immunities and Powers of Parliament Act [Chapter 10] and others, which in various respects are an impediment to the enjoyment of the right of access to information.20 With respect to this and the centrality of the freedom of expression in the exercise of socio-economic rights, it is necessary that there be effective advocacy and lobby campaigns to push for the entrenchment of the right of access to information in the country’s constitution. There is also need to push for AI legislation that is in line with the democratic norms for the respect of the people’s right to access information that is relevant to the enjoyment of their social and economic rights.

20 For more information on how the stated laws impinge on the right of access to information, reference is made to the publication, The Access to Information and Protection of Privacy Act: Two Years On, September 2004, Article 19, London & MISA-Zimbabwe, Harare. Reference is also made to G Feltoe, 2005.

17

Besides the standards sited in the above presented international conventions, Article 19 has developed basic principles that set out standards for laws that give effect to the right of access to information. These standards apply to the public sector, the private sector and to inter-governmental bodies such as the United Nations and the European Union. The principles are presented as follows:

i) Freedom of information legislation should be guided by the principle of maximum disclosure;

ii) Public bodies should be under an obligation to publish key information;

iii) Public bodies must actively promote open government;iv) Exceptions should clearly and narrowly be drawn and subject

to strict “harm:” and “public interest” tests;v) Requests for information should be processed rapidly and fairly

and an independent review of an refusals should be available;vi) Individuals should not be deterred from making requests for

information by excessive costs;vii) Meetings of public bodies should be open to the public.21

7. MAJOR FINDINGS ON MISA-ZIMBABWE’S ADVOCACY CAMPAIGN ON THE RIGHT OF ACCESS TO INFORMATION

The previous section looked at Zimbabwe’s AI legislation with a view to accessing its strengths and weaknesses in so far as giving effect to the right of access to information is concerned. While there are provisions in AIPPA providing for access to information that is relevant for public concern, it was established that limitations embedded in this AI legislation water down the stated objective of effecting the right of access to information. The section also presented international principles and standards setting out how laws should provide for the exercise of the right of access to information in a democratic society. South Africa was given as an example of a country that has gone a long stride in putting in place legislation that gives effect to the exercise of the right of access to information. In this section, a critical look is taken at the campaign that has been undertaken or is being undertaken by MISA-Zimbabwe under the broad objective of advocating for the entrenchment and upholding of the right of access to information in the country’s constitutional, legislative and policy framework.

21 Report of the United Nations Special Rapporteur on Freedom of Expression, (2000)) UN Doc.4/2000/63, January 18, 2000, paras 43, 44. Annex 2. The Principles were developed by the non-governmental organization Article 19-the International Center against Censorship.

18

The section is devoted to evaluating the effectiveness of MISA-Zimbabwe’s advocacy and lobby campaigns with respect to the following two broad components:

1. Ensuring that people are aware of legislation that is relevant to their right of access to information;

2. Ascertaining whether people have been able to utilize AI legislation in the exercise of their socio-economic rights in general and poverty alleviation in particular

7.1. MISA-Zimbabwe’s Public Awareness Campaigns

It was observed that MISA-Zimbabwe’s lobby and advocacy campaigns are at three broad levels of engagement, namely engagement with policy makers, engagement with members of the public and engagement with Civic Society organizations.

MISA Zimbabwe has largely engaged members of the public through activities including community meetings, the community theatre initiative, and a general public awareness campaign in form of distribution of fliers, posters, staging of peaceful protests and marches. There has also been a specialized campaign that can broadly be described as the Community media initiative in which people in different communities are being assisted towards establishing community media that can help them to access and channel out information that is relevant to the advancement of their welfare.

7.1.1.1. Community Meetings

Community meetings are undertaken at selected venues in urban areas. Topics for discussion at community meetings are generally in line with the theme of advancing the freedom of expression and the right of people to access information. The meetings are organized by the MISA-Zimbabwe secretariat in collaboration with Civic Society organisations such as the Zimbabwe Lawyers for Human Rights (ZLHR), Zimbabwe National students Union (ZINASU), Zimbabwe Young Christian Students, Zimbabwe Women Resource Center Network and the Zimbabwe Union of Journalists (ZUJ).

7.1.1.2. Community Theatre

Community theatre performances have been staged around country’s High-density areas in Harare, Bulawayo, Gweru, Masvingo, Mutare, Hwange, Kwekwe, Chinhoyi and Kadoma. The development and scrutinizing of theatre scripts to ensure that performances carry the desired messages is facilitated by members of the MISA secretariat,

19

especially the Advocacy, Legal and Information departments. Theatre groups are identified by MISA Advocacy Committees that are present in Harare, Bulawayo, Mutare, Kwekwe, Gweru, Masvingo Kadoma, Chinhoyi and Hwange. The Committees are made up of journalists and Civic Society activists drawn from civic organizations that carry out Human Rights advocacy work in areas such as Gender, Youth issues and HIV Aids.

7.1.1.2. General Raising of Awareness

There have been several attempts to raise awareness through the distribution of T-shirts, fliers and posters carrying different message campaigning for the review of AIPPA, the opening of the airwaves, the need to set community radio stations and others to do with the freedom of expression.

7.1.1.3. Peaceful Marches and Protests Among other causes, peaceful marches have been organized and staged in call for legislation that guarantees and upholds the right of Access to information. When the MISA membership marches in commemoration of events such World Press Freedom day, they have often utilized the opportunity to raise awareness on laws and practices that hinder the enjoyment of the freedom of expression. There have also in protest activities against the harassment of media practitioners and curtailment of the freedom of expression activities such as the closure of the Daily News and the introduction of inhibitive legislation including AIPPA, POSA, the Broadcasting Services Act and others that generally inhibit the right of access to information.

7.1.1.4. The Community Media Initiative

As part of the awareness raising activities, MISA-Zimbabwe has intensified the

campaign for the development of community media as part of the pursuit for the exercise of the right to the freedom of expression and the right to access information that is necessary for the social and economic advancement of respective communities. The campaign has started off with community radio and community newspaper initiatives. In Bulawayo, there has been the case of Radio Dialogue, in Masvingo, there is the Radio Wezhira initiative and in Harare, the Harare Community radio initiative. Community newspaper projects have started in communities such as Harare’s Glenview High Density suburb where a community publication, Glenview News has started circulating.

20

7.2. MISA-Zimbabwe’s Engagement of Parliament & Government

While public engagement is ultimately aimed at putting pressure on policy makers, including those in the Executive, the Legislature and the Judiciary arms of government to embrace reforms that enhance the exercise of people’s right to access information, there are platforms in which the policy makers are directly engaged with a view to lobbying them to embrace policy reforms that are necessary for the exercise of the people’s right to access information. Such platforms have included meetings with the minister of information, parliamentarians and other relevant government officials. Policy makers have also been invited to participate at workshops aimed at ensuring that there is awareness on the need for AI legislation that empowers citizens in the pursuit of the guaranteeing of their socio-economic rights and liberties.

7.2.1. Engagement of Parliament

Submissions have also been made to the Parliamentary Portfolio Committee on Transport and Communications with regard to the need for AI legislation that effectively links the right of access to information to the exercise of socio-economic rights. Currently, MISA-Zimbabwe is in the process of drafting a proposed alternative to AIPPA that will be submitted to the Parliamentary Portfolio Committee on Transport and Communications. MISA-Zimbabwe’s lobby and advocacy campaign has also included applauding and commenting on positive recommendations coming from some sections of parliament on the need for media reform. For example, when Kindness Paradza, the former parliamentarian raised a motion in parliament calling for the reform of AIIPA, MISA-Zimbabwe circulated a public statement applauding the motion. In the statement, MISA-Zimbabwe also nagged parliament to do a through assessment of the country’s media policy regime with view to coming up with laws and policies that promote a democratic media framework that promotes socio-economic development.22 In the wake of the most recent Parliamentary Portfolio Committee report on the state of the media, MISA-Zimbabwe wrote to the Portfolio committee commending its recommendations on issues including the need for the restructuring of the Zimbabwe Broadcasting Holdings (ZBH). In its submissions on the report MISA-Zimbabwe called on the Portfolio Committee to push the enactment of laws that guarantee the existence of ZBH as an independent public broadcaster through which information relevant to the political, social and 22 Interview with Rashweat Mukundu, opcit

21

economic development of citizens can be channeled without undue interference from politicians and business. 23

MISA-Zimbabwe also makes submissions on legal bills before they pass through parliament. Examples include submissions that were made prior to the passing of the Access to Information and Protection of Privacy Amendment Bill before it sailed through parliament in 2002. In its submissions to the amendment bill, MISA-Zimbabwe noted a number of provisions in the amendment bill that hinder the exercise of the right to information. Provisions that were recommended for review include those to do with the accreditation of journalists, the composition of the MIC and others that impinge on the citizenry’s right of access to information.

7.2.2. Engagement of the Executive arm of Government

The cabinet has mainly been lobbied to embrace media policy reforms through the Ministry of Information and Publicity. Consultations have been held with ministry officials including the Minister and the Permanent secretary. One of the meetings was held with the late minister of Information and Publicity, the late Ambassador Tichaona Jokonya and his deputy, Bright Matonga at the beginning of 2006. At the meeting, the issue of the need for the setting up of an independent Media Professionals Council was extensively discussed, with MISA-Zimbabwe presenting its proposals on the need of such a council to the ministry. Ministry officials have also been discussed to workshops were they have been exposed for discussion with journalists on matters pertaining to the need for information policy reform.

At local level, provincial governors, mayors and councilors have been engaged ion the need for media policy reform. Among other strategies to reach out to these authorities, MISA-Zimbabwe has often invited them to community meetings held in various centers around the country. Meetings have also been held with governors, mayors and councilors as part of the lobby campaign for a policy and constitutional framework that guarantees the exercise of the right to information.

MISA-Zimbabwe has also exerted pressure on government to embrace democratic and developmental media reforms through its international lobby and advocacy campaign.

7.2.3.International Lobby and Advocacy

23 MISA-Zimbabwe’s Response to the First Report of the Portfolio Committee on Transport and Communications on the State of the public Media in Zimbabwe, 2006

22

Apart from alerts and reports that are circulated to the diplomatic community on a constant basis, MISA-Zimbabwe’s international lobby and advocacy campaign has also taken place through the African Commission on People and Human Rights. Apart from appraising the Commission through alerts and reports, MISA-Zimbabwe has played a leading role in presenting cases of the abuse of the freedom of expression before the Commission. Cases that have been filed before the Commission include that of Capital Radio and that of the Independent Journalists Association of Zimbabwe (IJAZ). Capital Radio is challenging the constitutionality of the Broadcasting Services Act, which as the banned station holds, contains a number of provisions which are not inn the true spirit of opening up Zimbabwe’s airwaves. The case has been presented before the Commission following a ruling by the Supreme Court of Zimbabwe that the Broadcasting Services Act does not contravene the freedom of expression in any way. The IJAZ case relates to AIPPA. IJAZ is challenging the constitutionality of provisions of AIPPA to do with the registration and accreditation of journalists. The clauses being challenged were ruled to be constitutional by the Supreme Court in 2004. IJAZ has however submitted that sections 79, 80, 83 and 85 of AIIPA relating to the registration of journalists violate Section 9 of ACPHR. Both cases are still on the stage of infancy and finer details on them are yet to be made public. MISA-Zimbabwe facilitated the presentation of these cases to the Commission in collaboration with the Zimbabwe Lawyers for Human Rights (ZLHR)24

7.3. Interaction with Civic Society

In promoting the exercise of the right to information, MISA-Zimbabwe, has over the years been interacting with Civic Society organizations (CSOs) whose mission is that of promoting political and socio-economic development. Among the CSOs that MISA-Zimbabwe interacts with on the said respect is the Media Monitoring Project Of Zimbabwe (MMPZ), Crisis in Zimbabwe Coalition, Women inn Parliament support Network (WIPSU), Women Coalition, National Constitutional Assembly (NCA), Zimbabwe Lawyers for Human Rights (ZLHR), Human Rights Non Governmental Organizations Forum, Federation of African Media Women in Zimbabwe (FAWMZ), Zimbabwe Election Support Network (ZESN), and the Zimbabwe National Students Union (ZINASU). MISA-Zimbabwe also has an effective working relationship with professional associations, namely the Zimbabwe Union of Journalists and the Independent Journalists Association Of Zimbabwe (IJAZ). Both ZUJ and IJAZ are institutional members of MISA-Zimbabwe. ZUJ recently

24 Interview with Wilbert Mandinde, 21/6/2006

23

received technical support from MISA-Zimbabwe’s Advocacy Department towards the establishment of its office in Harare.

With MMPZ, MISA-Zimbabwe has come up with informative synergies in monitoring Zimbabwe’s media operational environment. MMPZ produces and publicly circulates weekly reports on the operations of the media. Some of the reports have extensively been used inn the production of MISA-Zimbabwe’s alerts and reports. MISA-Zimbabwe organizes events such as joint workshops and public meetings that have helped in raising awareness on the right to access information and on the general state of the media in the country. Examples include the annual public meeting to commemorate World Press Freedom Day, which is jointly organized by MISA-Zimbabwe and CSOs including ZUJ, IJAZ and the Crisis in Zimbabwe Coalition. The organization of marches to mark the day has also often see n organizations such as the NCA and the Combined Harare Residents Association being invited to take part, with posters carrying messages on press freedom being widely distributed. In conjunction with ZLHR, MISA-Zimbabwe has come up with the Media Lawyers Network, whose activities have included the training of journalists on how Zimbabwe’s legal environment affects their work. The network has also assisted in the provision of legal representation for media practitioners and organizations in need of such representation. Among the beneficiaries of this initiative are the Tribune and former employees of the Associated Newspapers of Zimbabwe (ANZ), publishers of the banned Daily News and The Daily News on Sunday.

Workshops have also been organized by MISA-Zimbabwe to raise awareness on the necessity of the freedom of expression and the right to information. Workshops have been organized for the membership of the mentioned CSOs that MISA-Zimbabwe has developed working relations with. Workshops have been organized around such themes as: The Necessity of the Right to Information in Promoting Socio-Economic Development, Be a Community: Start a Community Radio, AIPPA: Does it Promote the citizen’s Right to Access to Information and others. Under such themes, MISA-Zimbabwe has mobilized civic society towards advocating for a free media environment in which the exercise of the right to information is upheld.

MISA is currently consulting Civic Society organizations around the country on how best to push for the enactment of legislation and policies that guarantee access to information with respect to the enjoyment of socio-economic rights. Civic Society organizations have also been engaged at other platforms such as workshops at which critical discussion on the right of access to information have been

24

extensively deliberated on, with recommendations coming out on the need for the enactment of democratic information laws that are relevant to socio-economic emancipation. Alerts on the state of the media with respect to the need for the upholding of the freedom of expression have also been circulated to civic organizations and members of the diplomatic community through e-mail on a regular basis.

8. Evaluating the Effectiveness of the Advocacy Campaign

8.1. Assessment of Campaign among Parliamentarians

The engagement of Parliament has seen parliamentarians from both the ruling ZANU PF and the opposition being lobbied to push for a legal and policy framework that fosters a democratic environment in which the freedom of expression and the right to information are upheld. While the generality of parliamentarians have largely been lobbied indirectly through invitation to relevant MISA-Zimbabwe activities and events inn their constituencies and around the country, direct interaction has mainly taken place through Parliament’s Portfolio Committee on Transport and Communications. MISA-Zimbabwe has engaged the Committee submissions that it has prepared on proposed legislation. As already alluded to, comprehensive submissions were forwarded to parliament when such bills as the AIPPA Amendment Bill were brought before parliament. MISA-Zimbabwe has also come up with plausible submissions on issues such as the liberalization of the broadcasting sector. An analysis of other existing laws such as the Public Order and Security Act (POSA) and the Broadcasting Services ACT has also been done for Parliament, with negative aspects affecting the freedom of expression being highlighted. Potentially progressive recommendations including the need for the setting up of a policy framework that promotes free information flow.

There have been indications that a significant impact has been generated from the campaign among parliamentarians The latest report by the Parliamentary Portfolio Committee on Transport and Communications on the state of the Public Media in Zimbabwe points to how some of the Portfolio Committee’s recommendations are in line with the campaign by MISA to entrench the freedom of expression and the right to access information through such avenues as the setting up of Community broadcasting stations, the opening up of the airwaves and the granting of autonomy to the Broadcasting Authority of Zimbabwe (BAZ).25 Some motions have also been raised in parliament 25 See Report of the Parliamentary Portfolio Committee on Transport and Communications [S.C 10, 2006], 31 May 2006

25

on the need for media reform. An example was the call for the review of AIPPA by former Member of Parliament, Kindness Paradza in his maiden contribution to parliamentary debate in 2004.

8.2. Impact on Central Government

During the era of Mr. Jonathan as Minister of Information and Publicity between 2000 and 2006, relations between the privately owned media and the state became extremely bad, with the private media being dismissed at face value as an enemy of the state. The period saw an increase in violation of media freedom and the freedom of expression. It was also in the same period that AIPPA was enacted. In the wake of a well-calculated assault on the citizenry’s right to information, MISA-Zimbabwe continued with advocacy activities, including the issuing of alerts on violations. In 2002, MISA recorded 208 alerts of violations throughout the Southern Africa Development Community (SADC) region, with 120 (58%) having been reported from Zimbabwe. In 2003, MISA-Zimbabwe reported 102 (54%) of the 188 press freedom violations that were recorded in SADC.26 In the wake of this violations, MISA-Zimbabwe continued with a peaceful advocacy and lobby campaign for a free media environment. The campaign paid dividends as seen by the decrease in reported cases of press freedom violations from 102 in 2003 to 47 in 2004.27 As the situation currently stands, there are indications that government recognizes the legitimacy of the private media. Before his death, the late minister of Information had publicly indicated gestures of cooperation between his ministry and different sectors of the media.

Even the already stated amendment of AIPPA during the tenure of Jonathan Moyo as minister of Information was an indication of success in advocacy initiatives. Although not meeting the expected democratic standards, the amendment indicated the level of pressure to which government has been subjected in line with the need for the respect and observance of the right to information. Being under pressure from relentless advocacy activities by MISA-Zimbabwe and other players, government had to be seen to be at least doing something.

On the overall assessment of the engagement of central government, it has been that that while parliamentarians, provincial Governors, Mayors and Councilors who have been engaged have shown a general understanding on the need for democratic media reforms, the central government has largely been unwilling to open up to the reform initiative. In reference to the unwillingness of government to open up 26 See MISA Annual Report for 200527 Ibid

26

to the MISA initiated media reform initiative, Takura Zhangazha, the MISA-Zimbabwe Deputy Director said:

At times we have held consultations with provincial Governors, Mayors and Councilors who have shown appreciation of the need for reforms. In the end they point out that they have no power to effect reforms, referring matters to the Ministry of Information, which has not shown much commitment to the media reform cause.28

The above sentiments were confirmed by Zvamaida Murwira, a senior reporter with the state-controlled Herald newspaper who observed that the suspicious manner in which the government controlled MIC views Civil society and the privately owned media makes it increasingly difficult for citizens to exercise their right to access information through AIPPA.29 This state of polarization has increasingly made it difficult for the citizenry to enjoy its right to information.

8.3. Benefits from MISA-Zimbabwe’s interaction with Civic Society

It is notable that some inroads have been made into civic society organizations, resulting in some synergies that have broadened the horizon of MISA-Zimbabwe’s advocacy campaign. The work with MMPZ is particularly commendable as it has given birth to a constant informative monitoring of the restrictive information flow environment that continues to hinder democracy and development among Zimbabweans. Collaboration with the NCA where MISA-Zimbabwe sits in the Editorial Board has significantly contributed to the production of a quarterly newsletter, The Agenda, which is significantly circulated among members of the NCA in rural and urban Zimbabwe. A flip through the most recent issues of The Agenda shows how articles on the need for free information flow have consistently featured in the publication. MISA-Zimbabwe has also bee n able to broaden its campaign by being part of the Crisis in Zimbabwe Coalition where it chairs the Coalition’s information committee. The same can be said with regard to MIS-Zimbabwe’s interaction with ZINASU, which it has helped to produce a magazine that circulates among students in tertiary institutions of learning. As pointed out by Promise Mkwananzi, the current president of ZINASU, the publication is relevant to the student community’ s socio-economic interests as it covers such issues as the privatization of higher education, HIV Aids and others, which affect students.30

28 Interview with Takura Zhangazha, 27/06/200629 Interview with Zvamaida Murwira, 2706/200630 Interview with Promise Mkwananzi, opcit

27

While some achievements have been recorded in the stated initiatives, it is notable that not much has been done in terms of a deeper penetration into the membership of such membership based organisations as the Zimbabwe Congress of Trade Unions (ZCTU) and the National Constitutional Assembly (NCA). The local Chapter of MISA acknowledged how it has not been able to work with grassroots based organizations such as the Zimbabwe Congress of Trade Unions (ZCTU) and the National Constitutional Assembly (NCA), which can help in the accessing of a significant portion of grassroots communities, especially in the rural areas where poverty levels are even higher than those in the urban areas in which MISA activities are concentrated.31 As the MISA-Zimbabwe Deputy Director pointed out, his organization has avoided high-level collaboration with organizations such as NCA because of the political backlash that such a collaboration is likely to invite from ruling party officials

The failure of MISA Zimbabwe to penetrate rural areas is also commonplace in a number of other civic organizations whose human Rights advocacy work has largely remained confined in Boardrooms and Five Star Hotels due to the inhibitive political climate. This risks a tragedy in which human rights advocacy work has not been deepened enough to reach levels of national awareness and consciousness. 8.4. Assessment of International Lobby and Advocacy There has been an extensive raising of awareness among members of the international community on the obtaining media environment with respect to the exercise of the right to information and the freedom of expression. To this end, international publications including those of International Human Rights are awash with factual information on how the dearth of democracy and development promoting AI legislation and policies is contributing to a parlous state in which the greater part of the population is failing to enjoy its socio-economic rights. Publications in which Zimbabwe’s restrictive flow of information has been comprehensively covered include MISA publications, Freepress32 and So This is Democracy. International reports from international human rights organizations such as Article 19 and Amnesty International have also consistently highlighted the manner in which the citizenry’s right to information have been violated over the years.

31 Interview with Wilbert Mandinde. In reference to how MISA has failed to penetrate rural areas, Mandinde made reference to an incident in which Takura Zhangazha went to Dete Communal lands on an awareness campaign and failed to address a single person32 See the Freepress of July, 2003. This particular publication was dedicated to Zimbabwe and chronicles the manner in which free information flow has systematically been violated

28

The effectiveness of advocacy among members of the diplomatic community was recently shown by pronouncements that were recently made by United States Ambassador to Zimbabwe, Mr. Christopher Dell. In an address to mark the year 2006’s World Press Freedom day in Bulawayo, Ambassador Dell pointed out the apparent linkages between the disrespect of the freedom of expression and the country’s deepening poverty. He also pointed out how the opposite is true in the case of countries such as South Africa and Mozambique where there is a modicum of respect for the right to access information.33 Calls for media reforms have also been heard from European Union diplomats such as the Swedish Ambassador to Zimbabwe. While acknowledging the need for democratic reforms, other members of the diplomatic community have chosen not to make public pronouncements.

8.5. Impact of the Community Media Initiative

As a result of the arrogant stance that has been adopted by government with regard to calls for democratic media reforms, MISA-Zimbabwe is intensifying direct engagement with grassroots communities through the Community Media initiative, which is proving to be effective in some aspects. A look at the Glenview News, for example shows how the initiative is striving to give local communities access to information that is relevant to their socio-economic advancement. Issues covered in the inaugural issue of the Glenview News include a story in which the municipal police officers are converting vegetable vendors’ products for their own use under the pretext of flashing out illegal vending. There are also stories on the apparent failure by the Municipality to collect refuse, an unjustified payment of transport levy at a local school and other issues that are relevant to the community’s welfare. Out of 20 Glenview residents that were randomly selected for a snap shot survey on the Glenview News and on MISA-Zimbabwe’s Right of access to information campaigns, 15 said they welcome the publication as it comes out in the local Shona language that they understand. They also said that the publication covers issues that directly affected them. Among those talked to was a 27 year old Accounts Clerk who expressed fears that the publication would be banned under AIPPA. Together with 18 other respondents who included 6 vegetable vendors and four domestic workers in Glenview, the Accounts Clerk expressed that she is only aware of AIPPA as a law that is used to close down newspapers that are not wanted by the government. Most cited the case of The Daily News, a private daily newspaper that was closed by the state after it initially defied the requirements to register for an operating license as stipulated by AIPPA. She chose to remain anonymous for fear of victimization.33 See Ambassador Christopher Dell’s address to mark World Press Freedom Day in News and Views from the World, June/July 2006, p. 3

29

The Radio Dialogue initiative is also showing potential for greater relevance. Although a lecturer at the National University of Science and Technology (NUST), Stanford Matenda is of the opinion that the initiative is to do with nothing but an unfocussed playing of music in High density suburbs, MISA has pointed out that the music that is played is produced at the community station’s studio and tries to address socio-economic problems faced by local communities in Bulawayo. The writer of this appraisal had n opportunity to listen to some of the music produced by Radio Dialogue and found out that some of the songs are to do with the need to address political, social and economic issues affecting the Bulawayo community in particular and Zimbabwe in general.34 Kholiwe Nyoni, Radio Dialogue’s Marketing Officer expressed gratitude to MISA-Zimbabwe for the financial and technical support from the Chapter, which she says is helping the Bulawayo community realize the long cherished dream of an electronic media system in which they hear their known voices and which directly addresses their social and economic concerns. “There is no better way in which the media can help uplift the socio-economic status of people other than one in which the people own their media and decide its content at community level”35

As observed, the presented advocacy initiatives have been conducted under the banner of campaigns, which can be categorized as the Open Up the Airwaves campaign, the Journalists Under Fire campaign and the Access to Information campaign. The Open Up the airwaves campaign has included campaigns designed towards the establishment of a democratic broadcasting policy regime underpinned by a three tier broadcasting system comprising of public service broadcasting, commercial broadcasting and community broadcasting. Focus on the establishment of community radio has been broadened to include other forms of community media such as community newspapers and community theatre. Under the journalists under fire campaign, MISA-Zimbabwe has been engaged in raising awareness on the restrictive and risk environment in which the media operate in Zimbabwe. The Access to Information involves attempts by MISA-Zimbabwe to mobilize the citizenry towards asserting their right to information. This is being done in conjunction with other civic players involved in Human Rights advocacy work in sectors including HIV Aids, Gender, Governance, Youth empowerment and others.

9. CONCLUSION 34 Radio Dialogue has produced a sizeable number of musical compilations known as Taxi tunes. The songs are directed at local communities as part of political, social and economic advocacy on issues affecting the communities. 35 Interview with Kholiwe Nyoni, 20/05/2006

30

This appraisal has pointed out the deficiencies in Zimbabwe’s AI legislation, which has been observed not to do much by way of enhancing the enjoyment of people’s socio-economic rights. The fact that the country’s ATI legislation in the form of AIIPA was enacted with the view to control a free flow of information makes it extremely weak in terms of guaranteeing the enjoyment of the right of access to information from within a context of the exercise of socio-economic rights. The case of Zimbabwe is one in which the right to access information is presented by one hand and is immediately snatched by the other. It then becomes extremely difficulty, if not impossible to talk of the existence of ATI legislation and polices through which citizens can effectively enjoy socio-economic rights in Zimbabwe. What therefore becomes relevant in the case of Zimbabwe is to advocate for the establishment of a holistic constitutional and policy framework that gives effect to the enjoyment of the right of access to information in the context guaranteeing and upholding the exercise of the whole package of socio-economic rights. Together with other restrictive pieces of legislation, the Zimbabwean constitution, which does not guarantee the right of access to information and is littered with a plethora of restrictions to the freedom of expression needs to be thoroughly reviewed in the spirit of promoting communicative rights that facilitate the exercise of other political, social and economic rights.

It is in this respect that the Zimbabwean government, Civic society and other relevant stakeholders are urged to learn from the positive aspects of ATI legislation and policies in South Africa and other jurisdictions with a view to coming up with a constitutional and legislative policy framework that fosters the exercise of the people’s right to access information for purposes of socio-economic advancement.

10. RECOMMENDATIONS

The following is recommended with respect to the development of AI legislation and policies that link the fundamental right of access to information to the overall cause for the enjoyment of social and economic rights:

10.1. Need to strengthen linkages with grassroots based organizations

There is need for MISA-Zimbabwe to spread nits networking activities with grassroots based organizations such as ZCTU and NCA for

31

purposes of penetrating deeper into grassroots communities. In the interest of ensuring that there is awareness on the right to information, it is recommended that MISA-Zimbabwe provides training for Publicity secretaries of NCA Constituency Committees around Zimbabwe on the linkage between the right to information and other socio-economic rights. The same training needs to be availed to members of ZCTU and other grassroots based organisations. Networking activities between MISA-Zimbabwe and other membership based organisations may also include a joint organization and addressing of activities such as public meetings by MISA-Zimbabwe officials and officials from other organizations. The addresses must enlighten the membership of different organizations on how the right to information is key to political and socio-economic development.

10.2. Intensification of International Advocacy

There is need to intensify international lobby and advocacy on the need for a constitutional, legal and policy framework that guarantees the exercise of the right to information. Inn this respect, more cases highlighting the violation of freedom of expression need to be presented before the African Commission on People and Human Rights and other relevant international platforms with view to put pressure on the Zimbabwean government to embrace democratic reforms that guarantee the right of access to information.

The international lobby and advocacy needs to be linked with the sponsoring of more test cases in which citizens are empowered to try and obtain information that is relevant to their socio-economic welfare through some potentially helpful clauses in AIPPA. As pointed out there have been very few cases in which attempts to obtain information through AIPPA. These test cases will help in further exposing the weaknesses in the current AI legislation and bring to fore the need for reforms that will ensure the existence of a constitutional framework that guarantees a full enjoyment of the right to information.

10.3. Penetrating Rural areas

As observed, MISA-Zimbabwe’s advocacy activities are largely concentrated in urban areas. In the wake of the prevailing political environment, there is need for the devising of strategies to raise awareness on the right of access to information among rural communities. Through synergies that already exist with organizations that have a presence in rural areas such as NCA, advocacy committees may be set up in rural areas with a view to coming up with appropriate strategies for different areas. Strategies for penetrating rural areas

32

with the freedom of expression message can include the staging of community theatre performances and the setting up of community media in the rural areas. The rural campaign for promoting the right of access to information can also be propagated through the production and distribution of relevant popular music compilations and promotional material such as calendars, T-shirts and rappers (mazambia).

10.4. Undertaking extensive Civic Education on Human Rights

Considering the levels of fear among the general populace and the manner in which civic society organizations are not coming up with effective synergies in human rights advocacy, it is recommended that there be an extensive civic education campaign to educate people on Human Rights in general and the importance of the right of access to information in the exercise of these rights in particular. Rural communities, schools and civil servants must be targeted. This campaign, which may be conducted in collaboration with organizations such as the Southern Africa Human Rights Trust (SAHRT), the NCA, ZCTU, ZINASU, Women Coalition, organizations in HIV Aids advocacy, Zimbabwe Lawyers for Human Rights and ZIMCET must be undertaken with view to ensuring that citizens are in a position to demand and assert their rights, which include the right of access to information that is relevant for the exercise of their socio-economic rights. This campaign can be by way of jointly organizing activities such as public meetings, civic education workshops, peaceful marches, protests and others that may be relevant.

It is notable that organizations such as SAHRT have been able to conduct human rights education among groups of people including police officers. MISA-Zimbabwe could coordinate with SAHRT to ensure that awareness on the importance of the right to access information is raised among such groups. There is also need to coordinate with CSOs such as the Girl Child Network and multilateral organizations such as the United Nations Development Programme (UNDP) in ensuring that awareness on the need for the exercise of the right to information is spread in schools, especially primary and secondary schools.

10.5. Support for the Community Media initiative

In realization of the effectiveness and relevance of the community media initiative, it I highly recommended that adequate financial and technical resources be availed towards the establishment of community media through which community can enjoy the right of

33

access to information that is relevant to their day to day social and economic needs. In consideration of the situation prevailing in Zimbabwe, it is highly recommended that Zimbabwe be part of the MISA ASK campaign. The campaign must be factored into the MISA-Zimbabwe advocacy programme with a view to assisting communities to establish community media and networks such as information clubs through which they can be able to obtain information that is relevant for their social and economic advancement.

REFFERENCE SECTION

34

Books, dissertations and reports

Amnesty International Report, 2006, 1 Easton Street, London, United Kingdom, 2006

Brautigam, Deborah, Governance and Economy: A Review, Washington D.C., The World Bank, 1991

Chipare, Luckson, Media, Freedom and Development: What is the link, Freepress, My 2004, MISA, Windhoek

Dunn, William, Public Policy Analysis: An Introduction, Patience Hall, 1981

Feltoe, Geoff, Media Law and Practice in Zimbabwe (Volume 1), Konrad Adeneur Foundation, Harare, 2005

Louw, Raymond (ed), Undue Restriction: Laws Impacting on Media Freedom in the SADC, Media Institute of Southern Africa, Windhoek, 2004

Mazango, Eric, Telecommunications sector Reform: Liberalisation and Universal service Policy in Zimbabwe, MA Thesis, University of Oslo, 1998

Memeza, Mzi, An Analysis of Weaknesses in Access to Information Laws in SADC and Developing Countries, Freedom of Expression Institute (FXI), 2006

Report of the United Nations Special Rapporteur on Freedom of Expression, (2000)) UN Doc.4/2000/63, January 18, 2000, paras 43, 44. Annex 2.

Report of the Parliamentary Portfolio Committee on the State of the Public Media, Parliament of Zimbabwe, 2006

The Access to Information and Protection of Privacy Act: Two Years on, Article 19, London and MISA-Zimbabwe, Harare, 2004

Constitutions and Acts of Parliament

1.The constitution of the Republic of Malawi

2. The Constitution of the republic of Mozambique

3. The Constitution of the Republic of South Africa

4. The Constitution of the Republic of Zambia

35

5. The Constitution of the Republic of Zimbabwe

6. Access to Information and Protection of Privacy Act, Zimbabwe (2002)

7. Promotion of Access to Information Act, South Africa, (2000)

MISA Publications

1. MISA Annual Report, 2005, Windhoek, Namibia, 2005

2. So This is Democracy?: The State of Media Freedom in Southern Africa, Windhoek,

Namibia, 2002 & 2004

3. Freepress, July 2003 & May 2004, Windhoek, Namibia, 2003

Embassy Publications

1. News & Views FROM THE WORLD, June/July 2006, United States Embassy, Harare,

Zimbabwe, 2006

Newspapers

1.The Financial Gazette, June 13, 2002, Harare, Zimbabwe, 2002

Websites consulted

http://legacy.transparency.org/ach/strategies/access_info/impl_guidelines.html

http://za.creativecommons.org/learn /sacopyright/

http://www.transparency.org

http://www.fxi.org.za/odaf.htm

36

Interviews

Name Position held Date

Kholiwe Nyoni Marketing officer, Radio Dialogue 20/5/2006

Stanford Matenda Lecturer, NUST 20/5/2006

Rashwheat Mukundu Director, MISA-Zimbabwe 20/6/2006

Wilbert Mandinde Legal Officer, MISA-Zimbabwe 21/6/2006

Anonymous Accounts Clerk 21/6/2006

Promise Mkwananzi President, ZINASU 21/6/2006

Takura Zhangazha Deputy Director, MISA-Zimbabwe 27/6/2006

Zvamaida Murwira Senior Reporter, The Herald 27/6/2006

37