Raymond Louw, in Undue Restrictions: Law Impacting on Media Freedom in SADC purports that: “Though the Zambian Constitution expressly guarantees freedom of the media in much stronger terms than several other SADC member states, the limitation clauses in the Constitution coupled with other legislation render much of this freedom meaningless. Indeed, the extraordinarily wide compass of the limitations and restrictive laws place Zambia in the middle ages in regards to the freedoms that its citizens and the media are allowed”.
This paper sets to augment Louw’s statement by articulating some of the restrictive media legislation in the current (1996) Zambian Constitution. It shall further bring to the fore how issues of media policy and government control are played out in the discourse of a free media.
Zambia as an emerging democratic country needs a statute that reinforces freedom of expression, freedom of the press and access to information without unnecessary restrictions. In a liberal democracy where power is supposed to belong to the people (Article 1(2) of the Republican Constitution makes provision for this) and the executive is mandated to represent people’s wishes, hopes and dreams, freedom of expression is crucial. The Mung’omba Constitution Review Commission Interim Report (2005) makes a very important point on freedom of expression as a civil right when it notes that; “this right is the corner stone of any democracy and it should be protected.”
With the understanding that citizens elect public officials to represent them in political leadership, citizens have the right to information, right to know and monitor those that they have elected for the purpose of transparency and accountability. The information in the hands of political leaders belongs to the people and it is not a privilege for
Citizens have the right to information, right to know and monitor those that they have elected.
the people to have access to this information but it is part of their civil rights. It is by people having access to documents and information in the hands of public officials that these officials are accountable to the electorate. It is at this point that the role of the media as a “fourth estate” is cardinal. This role could only be guaranteed if there is deliberate legislation and policy put in place to promote freedom of the press and other media.
MEDIA LEGISLATION
In the current Republican Constitution (1996) press and other media freedoms are not explicitly guaranteed. The Bill of Rights in the constitution of Zambia, Article 20 (1) provides for freedom of expression while Article 20 (2) provides for the freedom of the press. Freedom of expression embraces the freedom to hold opinions, freedom to receive ideas and information and the freedom to impart and communicate ideas and information without interference. One can deduce from the above that freedom of the media is provided for in the Republican Constitution, at least by implication.
Article 20 (1), which provides for freedom of expression is not explicitly defined to favour freedom of media as much as it articulates freedom of the individual. Freedom of expression needs a broader definition that entangles all the other rights implied therein, such as freedom of the media and artistic creativity. Whilst freedom of expression guarantees for freedom to hold opinions, receive ideas and information without interference and to impart the same without interference, there are other statutes (state security Act) that impinge upon the same freedom.
The current Republican Constitution, with its clauses relating to media freedom, is a colonial legacy. Little has changed in this constitution. Dr. Alfred Chanda and Mufalo Liswaniso in their book entitled Hand Book of Media Laws in Zambia note that “the Zambian legal system imposes many restrictions on freedom of expression. Almost all the laws which seriously impede freedom of expression were enacted during the colonial days”.
It would suffice here to numerate the undue restrictive media legislation found in the Republican Constitution (1996). Laws that restrict media freedom
- Act, Cap 161
- National Archives Act, Cap. 175
- ZNBC Act, Cap. 154
- Theatres and Cinematography Exhibition Act, Cap. 158
- Penal Code, Cap. 87
- Prohibited Publication-Section 53 (1)
- Seditious Libel – Section 57 (1)
- Publication of False News – Section 67 (1)
- Defamation of the President – Section 69
- Criminal Defamation – Section 191
- Obscenity – Section 177 (1)
- The State Security Act, Cap 111
- National Assembly (Power and Privileges) Act, Cap. 17
Only a few of these shall be considered, in this discussion.
The Penal Code was added to the Republican Constitution around 1965-1966, immediately after Independence. With all its good intentions of safeguarding national security and serving public interest, the Penal Code is more a hindrance to media freedom and abhorrence to public interest.
Section 53 of the Penal Code accords the President many powers to declare any publication within and outside Zambia prohibited, if according to his/her opinion such materials are deemed to threaten national security. It is argued that the President would only act in this manner in serving public interest. The problem of serving “public interest” is a paradox in moments when information is withdrawn and denied to the public. This presidential prerogative to prohibit publication in the guise of serving public interest impedes press freedom, media freedom and the freedom to information and ideas.
The Media Laws Task Force’s Report, otherwise known as the Sangwa Report, notes that; “Section 67 (of the Penal Code) is unfair and a hindrance to press freedom as there is no legal obligation on the part of those who hold public office to provide information or confirm any information that is sought by a journalist.”
Section 69 which is intended to protect the institution of the presidency is equally unfair and a hindrance to press and media freedom. It is supposed to protect the office of the presidency and not the person holding that office. A democratic society is an open society, a society that favours the free flow of opinions and ideas as such the person holding the presidency should be ready to be challenged and ridiculed especially during the election campaigns period.
The Penal Code is more a hindrance to media freedom and abhorrence to public interest.
The MISA-Zambia presentation to the Constitutional Review Commission suggests: that “Article 20 (3) of the current Constitution provides for a very wide derogation clause, which if broadly constructed emasculates the protection of freedom of expression and the press contained in clause (1) and (2) respectively. It is therefore suggested that Article 20 (3) of the Constitution should be repealed.”
The media and press are public spheres where people express their opinion and challenge those holding public office. Hence an executive president is not immune to challenges and ridicule, given the fact that he/she used the same forum to ascend to the office of presidency.
MEDIA POLICY
The Sangwa Report of 2000 is one of the best documents produced in the process of establishing freedom of the press and the media. It offers a number of recommendations beneficial to the process of redressing issues that encumber media freedom. Among its proposals are the formulation of information and media policy, the formulation of a single media code of ethical conduct, and commercialization of the national broadcaster and public owned newspapers. The Sangwa Report, supported by the advocacy of MISA-Zambia, has led to the enactment by Parliament of the Independent Broadcasting Authority (IBA) Act, No.17 of 2002, the Zambia National Broadcasting Corporation (ZNBC) Amendment Act, No. 20 of 2002, and the establishment of the Media Council of Zambia (MECOZ) in 2004. MECOZ is a non-statutory, voluntary, self-regulatory media council.
The principal argument in the establishment of these regulatory authorities was to have independent regulators, so as to minimize the influence of government officials on media institutions. Unfortunately, the influence of the government in the operations of the independent regulator is still a bone of contention. The IBA, as an independent regulator, would not enjoy autonomy in its execution of duties. The IBA’s main duty was to provide for the control and regulation of broadcasting and diffusion services. However the government, through the Ministry of Information and Broadcasting Services, has a final say on many issues regulated by this independent regulator.
The national broadcaster, ZNBC, is still seen as overly controlled by the government and unable to free itself from vested political interest. Its programming hardly suggests any editorial and journalistic autonomy. The Sangwa Report made recommendations that the national broadcaster be commercialized in order to be freed from government control. But there has been no willingness on government to move in that direction. The national broadcaster, in the last couple of years, has initiated television licensing as a strategy to boost its financial base and provide quality programming. The sad fact is that the national broadcaster has failed to fulfil its
The IBA main duty was to provide for the control and regulation of broadcasting and diffusion services.
dream as its coverage concentrates too much on the government and the ruling party. The ZNBC Amendment Act of 2002 is still a contentious issue in the continued discourse on independent media regulation and media policy. Though the IBA and the ZNBC Amendment Act have been enacted by Parliament, there has been little effort on the part of government to make their implementation possible and supportive to the media. As by November 2005 the IBA board had not yet been appointed following the dispute that had erupted over the powers of the Minister to veto appointments to the IBA.
The establishment of the Media Council of Zambia (MECOZ) is a positive contribution to the role of the media in Zambia. In its constitution, MECOZ’s role is affirmed as a voluntary self-regulatory body for journalists (an Ethics Committee) where the public could forward their complaints and grievances against the media. MECOZ also has formulated a code of ethics to assist journalists to defend the principles of freedom of the press and information.
SETBACKS
One setback to the fight for press and media freedom is the lack of political will by government to amend and implement legislation that promotes freedom of the press and other media with minimum restrictions. For instance, government has been reluctant in implementing and responding to the recommendations on media laws made by the Sangwa Report of 2000. The government still owns and controls three major press publications (Zambia Daily Mail, Times of Zambia and Sunday Times) and the national broadcaster (ZNBC). Journalists in these institutions are often forced to compromise their professional integrity in their practice as there is no legislation or policy to protect them.
Another major setback to media freedom is the rejection and lack of political will by government to enact the Freedom of Information Bill (FOI). This bill is intended to “facilitate a more effective participation in the good governance of Zambia; to promote accountability of public officers”.
CONCLUSION
All in all, due to the ambiguous media legislation and numerous restrictions in the Republican Constitution, coupled with lack of political will in the implementation of the existing media policies, journalists in the independent media have suffered continuous harassment by politicians and their cadres. Worse still, this has led to the press and journalists having to censor themselves. This scenario has compromised journalists’ professional integrity and ethical values of being fair, balanced and impartial in reportage.
Chanda and Liswaniso purport that; “The dawn of political pluralism in 1991 has not led to the repeal of the repressive legislation. This has been made possible by the wide derogation clauses contained in the constitution and the lack of political commitment to individual rights on the part of government leaders.”
Government has been reluctant in implementing and responding to the recommendations on media laws made by the Sangwa Report of 2000.
It can only be hoped that the new Republican Constitution in the making would explicitly guarantee media freedom with minimum but necessary restrictions. Some restrictions would be necessary only when they are meant to safeguard national security while upholding media freedom. The implementation of the ZNBC (amendment) Act., no. 20 of 2002 and the IBA Act., no 17 of 2002 and the enactment of the Freedom of Information Bill are positive strategies that the government should advance in order to make Zambia a balcony of freedom of the media.
Chishala Francis Chisembe, S.J.
University of Cape Town
Cape Town
