INTRODUCTION

The legal environment within which media practitioners operate in Zimbabwe is threatening and inhibits the operation of a free press.  There are a number of laws that create a potentially hostile and dangerous climate for media practitioners as well as considerable self-censorship by journalists.  The scene is dominated by government-controlled media, and there is draconian national security legislation left over from the previous white minority regime, without any legislative or other measures to establish openness and accountability in government. These factors, together with the readiness of government officials to react to criticism by using the civil, and in some cases the criminal, law on defamation, place severe constraints on the ability of the press to carry out its right and duty to inform the public and to act as a watchdog of government, as it should be able to do in a genuinely free and democratic society.

CONSTITUTIONAL PROVISIONS
By contrast with the Constitutions of Mozambique and Malawi, which provide for freedom of the press as a fundamental freedom distinct from freedom of expression generally, and those of Namibia and South Africa, which expressly state that freedom of expression includes freedom of the press and other media, the Constitution of Zimbabwe provides no explicit protection for freedom of the press. Section 20(1) of the Constitution provides simply that everyone has the right to enjoy freedom of expression, defined as freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with one’s correspondence. However, this general provision on freedom of expression obviously encompasses freedom of expression by the press.

As in other countries, the right to freedom of expression in Zimbabwe is not an absolute and unlimited right. It is subject to a series of limitations permitted under section 20(20) of the Zimbabwean Constitution which are very widely drawn.  Restrictions on freedom of expression can be imposed in the interests of defence, public safety, public order, the economic interests of the State, public morality or public health; for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings; preventing the disclosure of information received in confidence; maintaining the authority and independence of the courts or tribunals or [Parliament]; regulating the technical administration, technical operation or general efficiency of telephony, telegraphy, posts, wireless broadcasting or television or creating or regulating a monopoly in these fields;in the case of correspondence, preventing the unlawful dispatch therewith of other matter; or that imposes restrictions on public officers;

Section 20(2) goes on to state that, however, any restrictions imposed must not exceed those which are reasonably justifiable in a democratic society.  It does not contain the strict requirement that such limitations be "necessary", but only the much looser criterion that they be "reasonably justifiable".  The Constitution also permits much wider limitations on freedom of expression than are permitted under international law in that it sets out many more grounds for such limitations.

The Zimbabwe Supreme Court has powers of constitutional review, that is, the power to strike down legislation on the grounds that it infringes fundamental rights set out in the Constitution.

THE PRESS
The government-controlled press dominates the media in Zimbabwe. The government, through the Zimbabwe Mass Media Trust, owns and controls the majority share in the newspaper company, Zimbabwe Newspapers (1980) Ltd ("Zimpapers"), publishers of The Herald and The Chronicle. The government-controlled press is, technically, privately owned, in that Zimbabwe Newspapers (1980) Ltd is a company listed on the Zimbabwe Stock Exchange, and its partiality and omissions have gone unchallenged and unchecked. The major weekly newspapers are the independently owned Financial Gazette, The Independent and The People's Voice, which is owned and published by ZANU-PF, the ruling party.  There are also several monthly magazines.

There are no laws or code of conduct provisions which require newspapers, whether government-controlled or independent, to be balanced in their reporting. The result has been that the government-controlled The Herald and The Chronicle constantly present one-sided pro-government views, particularly at election times when opposition candidates receive hardly any coverage.

This situation has been exacerbated by the fact that, until recently, there has been no body to deal with issues of journalistic ethics and standards. There have been moves to set up a statutory Press Council but it is highly unlikely that such a body would be effective. A recently established independent Media Council, however, offers a potentially more effective means of adjudicating on complaints against the press made by the public and on issues of journalistic ethics.

There are a number of provisions in current Zimbabwean law which impose far-reaching restrictions on the press. The law of defamation, which imposes strict liability on the press, puts onerous constraints on the right of the press to inform the public and is unduly restrictive of freedom of the press; it is strongly arguable that the restrictions imposed by it violate the freedom of expression provision in the Constitution in that they go further than is reasonably justifiable in a democratic society as required by Section 20(2), as do the following laws.

The Law and Order (Maintenance) Act, in Section 44, makes it a serious criminal offence for the press to publish a subversive statement which is defined as any statement likely to bring the President into hatred or contempt or to excite disaffection against the President or the government or Constitution; to incite any person to bring about legal or political change by unlawful means or to commit an offence or resist the law or unlawfully resist or oppose the government or a government official; to engender or promote hostility or contempt towards any racial or religious group; or to lead to public disorder or disruption of commercial activity.  The defence that the statement was made in good faith and with decency and respect is open to the media for certain categories of statements.

The importation and publication of pornographic materials is regulated by the Customs and Excise Act and the Censorship and Control of Entertainments Act respectively.   The terms used to define what is to be regulated are broad and vague, and include "any matter which is indecent or obscene or is offensive or harmful to public morals".
 

BROADCASTING
The government has absolute control over the electronic media (radio and television broadcasting). In terms of Section 27 of the 1973 Broadcasting Act only the Zimbabwe Broadcasting Corporation can carry out broadcasting in Zimbabwe. Although there have been public pronouncements by government officials to the effect that the government would relinquish its control of the electronic media by amending the Broadcasting Act, this has not in fact yet been done. The government has, however, failed to control the proliferation of satellite dishes being purchased by wealthy Zimbabweans, and it is only a matter of time before a prospective independent private broadcasting company challenges the constitutionality of Section 27 of the Broadcasting Act on the basis that it infringes the right to receive or impart ideas and information set out in Section 20(1) of the Constitution.

In 1995, a private cellular telephone company, Retrofit, successfully challenged the monopoly enjoyed by the state-owned Posts and Telecommunications Corporation (PTC), on the grounds that this infringed the constitutionally protected right to freedom of expression (Retrofit (Pvt) Ltd v The PTC, 1995 (9) (ZSC) BCLR 1262 (2)). However, in response to the Supreme Court ruling, the government enacted regulations which effectively delayed the licensing of a private cellphone operator. A further application was heard a year later and was again resolved against the government, which was now obliged to issue a licence to a private cellphone operator within two months (T S Masiyiwa Holdings (Pvt) Ltd and Enhanced Communications Networks (Pvt) Ltd v Minister of Information, Posts and Telecommunications, S-251-96). These judgments have potentially important implications for the government's continuing monopoly of radio and television broadcasting.

NATIONAL SECURITY
Draconian legislation passed in 1970 is still in force today.  The Zimbabwean Official Secrets Act goes way beyond what should be accepted as legitimate and justifiable protection from disclosure of official information. The Act covers any matter which the state may allege to be "prejudicial to the safety and interests of Zimbabwe". It does not define what is meant by the term "interests". Its provisions are frighteningly wide in scope and make it a very serious criminal offence to disclose or receive even the most trivial information, the disclosure or receipt of which could not conceivably result in any harm to the public interest.

The provisions of the legislation most relevant to the media are set out in Section 4 which makes criminal the unauthorized disclosure by a state employee or government contractor of any information that he has learned in the course of employment or while carrying out a contract. Only in respect of the offence of using information "in any manner or for any purpose prejudicial to the safety or interests of Zimbabwe" is there a requirement that the disclosure must result in harm to the public interest. In regard to all the other offences, there is no requirement that the disclosure must have resulted in harm to the public interest. The information disclosed does not have to be of any importance in order for disclosure to amount to an offence: the disclosure of the most trivial information without authorization is potentially a violation of these provisions.

While there have been no reported convictions under the Official Secrets Act since independence, journalists have from time to time been threatened with prosecution under this Act, although the charges have later not been pursued.
 

PROTECTION OF SOURCES

A reporter or editor who is ordered by the court to disclose the sources of his or her information for a particular story does not have any privilege in law which enables them to refuse to disclose their sources. The law is quite clear that if a journalist refuses to answer such a question when ordered to do so by the court he or she commits the crime of contempt and may be imprisoned.

In a 1994 judgment, however, the High Court decided that in civil cases, in certain instances, the court may decide not to order the journalist to reveal his or her sources of information. In the case of Shamuyarira v Zimbabwe Newspapers (1980) Ltd 1994 (1) ZLR 445 (H)) the court declared that in terms of Section 10 of the Civil Evidence Act 1992 the court may declare evidence (which could include information about journalists' sources) privileged in the public interest if it is satisfied that it would be detrimental to the public interest for such information to be given, and that such detriment would outweigh any prejudice to the parties or justice from non-disclosure.

DEFAMATION AND PRIVACY
In Zimbabwe if a person's privacy is disturbed or invaded by the media, the person can sue for damages. And the Constitution, in Section 20(1)(b)(i), includes "protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings" as one of the grounds on which freedom of expression may be curtailed. However, the right to privacy is not absolute and public figures such as politicians cannot expect the same degree of protection of their privacy as ordinary private citizens. But in Zimbabwe defamation actions, or the threat of such actions, are frequently used by public figures and government officials as a way of inhibiting reporting by the press. Moreover, in addition to civil defamation, Zimbabwean law provides for the common law offence of criminal defamation.

Both the media and individuals are subject to strict liability. That is, it is no defence that the publisher of a defamatory statement had no intention to defame; that the publisher defamed the plaintiff by mistake; that the publisher genuinely believed the statement to be true; or that, even if the statement was indeed false and defamatory, it was in the public interest to publish the information. Nor is it any defence that the publisher took all reasonable steps to check the accuracy of the story before going ahead and publishing it.

Once it has been proved that the published statement was defamatory, the only defences available to the defendant (apart from various minor defences) are justification, fair comment and possibly, qualified privilege. Justification requires that the defendant establish that the statement was true and that it was in the public interest to publish it. Fair comment requires that it be established that the facts upon which the comment was based were true.  Zimbabwean law does not recognize that the media have a privilege to publish information in the public interest, if that information turns out to be untrue. The burden is on the defendant to prove the truth of the statements published, and this is often particularly difficult in cases where the plaintiff is a high-ranking government official and where witnesses may be unwilling to come forward and testify.

It is not clear in current Zimbabwean law whether the press has a qualified privilege which affords it protection when it fairly and accurately reports statements made by politicians and other public figures at public meetings, if any such statement turns out to be inaccurate as well as being defamatory. This uncertainty creates problems for the press, especially when reporting on what has been said at political rallies and meetings where, not infrequently, defamatory comments may be made about political opponents and others.

Clearly the press should be afforded protection in this regard. The public has a right to know what is said at important meetings. If the press is not given a qualified privilege, it will be almost impossible for it to report properly because it will continually need to check the accuracy of any statements of a defamatory nature before going ahead and publishing the stories.

To enable the press to effectively perform its role of public watchdog it should be a defence for the press to show that a story was in the public interest and that before publishing the story, it took all reasonable steps to check the accuracy of the information. If it took such steps it should not be liable for defamation damages. If, however, it were subsequently shown that the story was incorrect, the press would be obliged to retract the story and issue an apology. If it failed to do this, it would again become liable for damages. It would also be under a duty, in any event, to publish a reasonable statement in contradiction or rebuttal from the person who was the subject of the story or at whom the story was aimed. Such an approach would achieve a far better balance between the right to information and the protection of reputation.
 
Zimbabwean law provides also for criminal defamation, although prosecutions for it are rare. Criminal defamation is a common law crime, and consists of the unlawful and intentional publication of matter which tends to injure another person's reputation. In order to secure a conviction for this crime the state would need to prove that the accused had intention to injure the reputation of another. The accused would have such intention "if, whatever his motives, he knows or at least foresees the possibility that what he is doing is to publish unlawful defamatory matter concerning the complainant". It is a defence to this charge that the accused published facts in the public interest provided that the facts were true. Because this is a crime of intention, it is strongly arguable that it is also a defence that the accused genuinely believed the facts.

The offence of criminal defamation is open to constitutional challenge on the basis that it is so nebulous and ill-defined that it is incapable of fair application and that it infringes the freedom of expression provision in the Constitution.

FREEDOM OF INFORMATION
There is no free-standing right to information set out in the Constitution, but Section 20(1) includes under freedom of expression "freedom to ... receive and impart ... information without interference". However, the general situation in Zimbabwe is contradictory to principles of openness and accountability in the process of government. Government departments are under no legal obligation to supply information or to reply to questions put to them by the press or any other inquirer. A climate of secrecy prevails and it is often extremely difficult to elicit information from government departments or a response to allegations made against officials in certain departments.

There are a number of provisions restricting access to, or publication of, official information. Under the Official Secrets Act any communication of official information is unauthorized unless disclosure to the person receiving the information has been specifically authorized. Prior authorization thus seems to be required.

REPORTING OF COURTS AND PARLIAMENT
Section 20(2)(b)(i) of the Constitution permits restrictions on freedom of expression "for the purpose of protecting ... the private lives of persons concerned in legal proceedings", and there are legal provisions restricting reporting of court proceedings relating to divorce, annulment of marriage and judicial separation, and cases involving juveniles.

Under Zimbabwean law, fair and legitimate criticism of the courts will not constitute contempt, but the media may fall foul of the law of contempt under the sub judice rule if it comments on a case which is under way or is about to go to court. Under Zimbabwean common law, the press has a right to report in a fair and balanced way on all court cases which are not held in camera. But when cases are already being tried or are about to be tried the press is not permitted to comment on the case in such a way as to suggest that the case should be decided a particular way.

With regard to Parliament, there are a variety of offences which could be committed by journalists and the media under the Privileges, Immunities and Powers of Parliament Act.  Included arewilfully failing or refusing to obey an order of Parliament,wilfully publishing a false or perverted report of any debate or proceedings of Parliament or wilfully misrepresenting any speech made by a member; publishing a defamatory statement reflecting on the proceedings or character of Parliament or committee of Parliament or a member of Parliament.

Under Section 17 of the Act, Parliament itself has the power to impose and execute any punishment which can be imposed for an offence under the Act. This provision violates Section 18(2) of the Constitution which requires that a person charged with a criminal offence must be afforded a fair hearing by an independent and impartial court of law.