In these judgments the Supreme Court ruled that s 26(1) of the Postal and Telecommunications Act (Chapter 12:02), which vested on the PTC exclusive monopoly over the control and distribution of telecommunications, was unlawful in that it violated the free speech provision in the Constitution of Zimbabwe. The effect of these judgments was to create a gap that the state now intended to fill through the mechanism of a new Communications Act.
Unoriginal mix:
Adjectivally the draft Communications Bill itself is a lesson in how to draft bad legislation. It is unnecessarily long and many of the items and issues it mentions in the introductory definition clauses are omitted in the rest of the bill.
The reason as to why the bill is so badly drafted becomes clear once one reads the provisions of the two acts that the bill seeks to repeal viz., the Postal and Telecommunications Act (Chapter 12:02) and the Radio Communications Services Act (Chapter 12:03) as well as the Broadcasting Act (Chapter 12:01)
With a few exceptions, the draft bill is an unoriginal mixture of the above acts. In many of its sections, provisions are taken out of the old acts and reproduced and plastered on the draft bill. Although the bill purports to repeal the Postal and Telecommunications Act and the Radio Communications Services Act, these two acts are not in reality being repealed at all. Rather, the state is merely consolidating the same into one act of Parliament and, in the same vein, consolidating its grip on the control of the airwaves.
The first major substantive weakness of the bill is that it leaves unscathed the monopoly of the state over broadcasting services. The bill does not seek to repeal the Broadcasting Act. Effectively this means that the control over radio and television remains under the state. Secondly even with regard to telecommunications the state has not divested itself of control. As stated above, until the Supreme Court decisions in the Retrofit cases, the state, through the PTC, enjoyed the exclusive privilege of establishing, maintaining and working telecommunications services within, into and from Zimbabwe. However the Supreme Court has since outlawed that monopoly particularly with regard to the operation of public mobile telephone services. Thus there isn't any new liberalisation in the draft bill. Further to the extent that the Retrofit decisions may be read to have struck out s 26 in its entirety, then it may be argued that s 31 of the draft bill is a back door attempt to ensure that the monopoly that the state lost through litigation, it regains through legislation.
Communications authority
The bill creates a new structure known as the Communications Authority which has extensive powers set out in clause 4 of the bill. These include the power to ensure the provision of postal and telecommunications services, and to regulate the establishment, installation, and development of postal and telecommunications systems and services.
From a pluralist point of view, the Authority's most important function is the function to grant licenses for the provision of postal telecommunications and radio station services. (The radio licenses mentioned in the draft are not for radio broadcasting stations).
The Authority's adjudicating functions require it to be absolutely independent governmental control. Unfortunately, it is not. Its members are handpicked by the Minister of Information, are answerable to him and, in terms of s 10 of the Bill, can be dismissed by him. Further, even though the Authority has very wide powers of making by-laws or regulations as defined in s 96, these must be approved by the minister before they can take effect. For the government to totally divest itself of any control, the Communications Authority or its equivalent must be totally independent. It must be accountable not to the Executive, but to the policy guidelines set out in the object clause of the parent act.
Fundamental reform needed
But it is not enough to enact a beautifully drafted Communications Bill, as long as the government continues its current trend to further enhance its control over institutions and its attempts to muzzle freedom of expression. This is exemplified by the ill-fated Public Order Bill, which it was forced to hastily withdraw, and several draconian laws dating from colonial rule.
More significantly, the Zimbabwe Constitution is in serious need of reform. Any reform in Zimbabwe, including media law reform, can only be meaningfully undertaken if it is part of a broad-based and fundamental change.
Tendai Biti
Practising Attorney
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