The protection of freedom of expression applies not only to the content of information but also to the means of transmission and reception. A restriction imposed on the means of transmission or reception necessarily interferes with the right to receive and impart information. Any monopoly which has the effect of hindering the right to receive and impart ideas and information violates the right to freedom of expression.
Facts
The case concerned a company (the Applicant), which desired to provide a cellular telephone service in Zimbabwe. The Respondent was the Posts and Telecommunications Corporation, a body established by statute to provide telecommunication services, regulate radio stations and establish radio stations in Zimbabwe. Section 26(1) of the Postal and Telecommunication Services Act conferred on the Respondent the exclusive right to establish, maintain and operate telephone systems within Zimbabwe. The Applicant had requested the Respondent to issue it with a licence to establish and operate a cellular telephone service. The Respondent declined such request on the ground that section 26 gave it a monopoly to provide such a service, and that accordingly the Respondent was unable in law to grant the Applicant such a licence. The Applicant sought an order declaring that section 26(1) of the Postal and Tecommunication Services Act was inconsistent with section 20(1) of the Constitution of Zimbabwe. The Applicant also sought an order directing the Respondent to issue it with a licence to operate such a telephone service in Zimbabwe.
Section 20(1) of the Zimbabwe TelConstitution guarantees the right to freedom of expression including the "freedom to hold opinions and receive and impart ideas and information without interference". Section 20(2) permits the protection of freedom of expression to be restricted by provisions the purpose of which is to "regulate the technical administration, technical operation or general efficiency of telephony, telegraphy, posts, wireless broadcasting or television or to create or regulate any monopoly in these fields". Such provisions would however be invalid if shown not to be reasonably justifiable in a democratic society.
Decision
The Court emphasised the importance attached to the exercise of the right to freedom of expression. It referred to the statement in the case of In Re: Munhumeso 1995 (1) (ZSC) at 557C-D at 130 B-C that: "The importance attaching to the exercise of the right to freedom of expression and freedom of assembly must never be underestimated. They lie at the foundation of a democratic society and are one of the basic conditions for its progress and for the development of every man." (at 1271 F)
The Court furthermore referred to the decision of Woods and Others v Minister of Justice, Legal and Parliamentary Affairs and Others 1995 (1) SA 703 (ZSC) at 705F and the comment that freedom of expression is "one always to be jealously guarded by the courts". (at 1271 G)
This approach, the Court found, underscores the pre-eminence of freedom of expression as an indispensable condition for a free and democratic society and conforms with what is reflected in international human rights instruments, some of which Zimbabwe has ratified or acceded to.(at 1271 H)
The Court reiterated the four broad purposes of freedom of expression which had been enumerated in the Court's earlier In re Munhumeso judgment:
The Court held that Section 20(1) of the Constitution enjoins not only that persons be free to express themselves but that they be not hindered in their means of doing so. The protection of freedom of expression applies not only to the content of information but also to the means of transmission and reception of such information. A restriction imposed on the means of transmission or reception necessarily interferes with the right to receive and impart information. Any monopoly which has the effect, whatever its purpose, of hindering the right to receive and impart ideas and information, violates the protection of this paramount right.
In the context of these proceedings the effect of the monopoly and not its purpose was important. In the Court's view it was axiomatic that for the Respondent to monopolize telecommunication services in Zimbabwe and then to furnish only an inadequate telephone network manifestly interfered with the constitutional right of every person in the country to receive and impart ideasand information. All persons are entitled to a telephone service which affords a rapid and reliable means of receiving and imparting ideas and information. To restrict the operation of such a service to a public monopoly unable to provide the service adequately imposes a severe restraint on the right to freedom of expression.(1270 I - 1277 C)
The next question to be decided was whether such restriction was reasonably justifiable in a democratic society.
The Respondent argued, inter alia, that by exercising central control, unnecessary duplication and overlap were avoided by making telecommunication services less expensive. However, the Court did not find these considerations to be of sufficient importance to warrant a serious inroad in the right of freedom of expression, nor was there a rational connection between any of the stated objectives and the maintenance of the Respondent's monopoly. The stated objectives could be as readily achieved without any dependence on the monopoly, and accordingly it could not be found that a continuation of the monopoly was the least drastic means by which the stated objectives could be achieved.
The Court accordingly found that the Applicant had successfully shown that the disputed section in the Postal and Telecommunication Services Act was not reasonably justifiable in a democratic society.
Lene Johannessen, Media Project, Centre for Applied Legal Studies