Freedom of Expression
Restrictions on Foreign Correspondents
Prior to the Abuja agreement, the Zimbabwe government had acted to restrict coverage of the situation in the country by foreign media. In early 2001, a correspondent of the Johannesburg Mail and Guardian did not have her accreditation renewed. Joseph Winter, the correspondent of the British Broadcasting Corporation (BBC) had his accreditation revoked. A number of armed men, later officially described as "immigration officers," broke into his home. He fled the country. The government subsequently denied accreditation to any BBC correspondent.4
The Zimbabwe government's resolve to implement the freedom of expression provision in the Abuja agreement appears to have lasted no more than a few days. In early September 2001, the Information Ministry denied accreditation to four foreign correspondents-from the London Times and Daily Telegraph, the BBC and Voice of America-to cover a meeting of heads of state of the Southern African Development Community in Harare.5 After the expulsion of the BBC's resident correspondent, the government had refused accreditation to its Johannesburg-based regional correspondent, Rageh Omaar. In September it also refused accreditation to BBC sports correspondents to cover a cricket tour of the country by the England team.
In November, the threats to foreign correspondents became more serious. The Herald of November 23 carried a front-page denunciation of six local correspondents for foreign newspapers and news agencies, as well as Richard Carver, a British human rights activist who writes occasional columns for the Daily News. The six foreign correspondents were Basildon Peta of the Independent (London and Johannesburg), Dumisani Muleya of Business Day (Johannesburg), Jan Raath of the Times (London), Peta Thornycroft of the Daily Telegraph, Andrew Meldrum of the Guardian (London), and Angus Shaw of Associated Press. All six are either Zimbabweans or permanent residents in the country. The government stated that: "This kind of media terrorism will not be allowed especially when it is used by people who claim to be human rights activists."6
The attack on all seven was couched in the language of the "war against terrorism" by the United States and its allies:
We too will not make any difference between terrorists and their friends or supporters. For these reporters to continue aiding and inflaming is morally wrong because journalists are ethically bound to tell a complete, balanced, fair and accurate story. That is what is lacking on all these reports and this is unacceptable.7
"Terrorism" in this context referred to the activities of the opposition MDC, and in particular reporting of the murder of war veterans' leader Cain Nkala (see below).
Harassment and Attacks on Journalists
In 1999, a private company, Associated Newspapers of Zimbabwe (ANZ), launched the Daily News, the first independent newspaper in Zimbabwe. The new paper rapidly gained ground at the expense of the government-controlled Herald and Chronicle. As its influence spread, it became a target for increasingly heated rhetoric from government ministers and violence by government backed militia. In April 2000 there was a firebomb attack on the building housing the Daily News editorial offices. Information Minister Jonathan Moyo denounced the foreign press corps for being responsible, on the basis that they had arrived quickly at the scene of the explosion.8 A South African press photographer was arrested and held in police custody for a few days before being released without charge. There were no other arrests. In January 2001, only hours after the paper had been denounced by Minister Moyo, the Daily News' Harare printing press was blown up.9 Again, those responsible have not been identified.
Since the Abuja agreement, the Daily News has continued to suffer harassment. Mduduzi Mathuthu, a journalist with the paper based in Bulawayo, was arrested on September 8, 2001, along with Loughty Dube of the Zimbabwe Independent, on the allegation that they had trespassed in a police station. The journalists had gone to Bulawayo central police station seeking a comment on the arrest of the bodyguards of the Bulawayo MDC member of parliament David Coltart. Their arrest was ordered by the chief inspector in charge of the law and order section. The journalists' press accreditation cards were confiscated before they were released.10
Barely a week later government-sponsored militia attacked Mathuthu and three Daily News colleagues at an occupied farm near Wedza, east of Harare. The other three were reporter Collin Chiwanza, photographer Urgurnia Mauluka, and their driver. The four had gone to the farm to report on attacks on the homes of farm workers. The four Daily News staff were attacked with bicycle chains and sticks, as well as being punched and kicked. All four needed medical treatment for injuries to their faces and limbs. Police officers were present when the attack took place, but took no action.11
On November 3, Information Minister Jonathan Moyo ordered his security guards to eject Mathuthu from a meeting the minister was addressing at the Bulawayo Press Club. According to Mathuthu, Moyo had described MDC MP David Coltart, a human rights lawyer, as a murderer and a racist. Mathuthu had asked the minister how he squared this with the fact that in the 1980s Coltart had represented a number of clients (who had been detained during the Matabeleland crackdown during that period) who were now senior members of the ruling party.
Two weeks later, on November 18, Mduduzi Mathuthu and a photographer, Grey Chitiga, were arrested and held overnight by police. The police stated that the two journalists were present when MDC supporters allegedly abducted Ndabezinhle Moyo. The Herald claimed that the MDC supporters were trying to force Moyo to admit that the Central Intelligence Organisation had murdered war veterans' leader Cain Nkala. The pro-government media reported that Mathuthu and Chitiga were to be charged under the Law and Order Maintenance Act, but they were released the following day without charge.12
Mathuthu's ordeal was not over. On November 28, the police picked him up for questioning about a report published in August, which had stated that people had walked out of a rally during a speech by Vice-President Joseph Msika. According to Mathuthu's lawyer, he had been charged under the Law and Order Maintenance Act with publishing false news likely to cause alarm or despondency, or disturbing public peace. The provision carries a maximum prison sentence of seven years.13 However, in June 2000 the Supreme Court had declared that this provision breached the constitutional guarantee of freedom of expression. The ruling related to the case against two other journalists, Mark Chavunduka and Ray Choto of the Standard, who had been detained and tortured by the army in 1999.14 The decision was widely publicized at the time and it is barely credible that the police were unaware that this section of the Law and Order Maintenance Act was no longer operative. The other question about the case is why it took the police three months after Mathuthu's report of the Vice-President rally before concluding that it had caused "alarm and despondency."
Mduduzi Mathuthu is by no means the only journalist targeted. The Daily News reported on November 5, 2001, that an officer of the Central Intelligence Organisation had chased and threatened to kill Philemon Bulawayo, a freelance photographer working for the paper.15
On December 1, ruling party demonstrators in Harare attacked the offices of the Daily News, smashing windows. The demonstrators, who were led by a former deputy mayor of Harare and a member of parliament, also beat an independent photographer, Cyrus Nhara, with bottles and sticks. He told the Media Institute of Southern Africa that the demonstrators attacked him for filming them, saying that only the government-controlled Zimbabwe Broadcasting Corporation was allowed to film. They stole his film footage and he also lost his spectacles and shoes. The police took no action.16
Those who sell the newspapers have also come under attack. In the days immediately after the Abuja agreement was signed, government backed militia in Mudzi District in Mashonaland East announced that they were "banning" the Zimbabwe Independent, Standard, and Johannesburg Sunday Times from the district because of the papers' alleged support for the MDC. Earlier the papers had been banned from distribution in two other districts in the same province. Government-backed war veterans' militia seized copies of the papers from their distribution point at Kotwa business centre. The local suppliers had asked the papers not to supply them with any more copies.17 Vendors in Bindura, in Mashonaland Central, reported similar problems, with an entire consignment of the Zimbabwe Independent being returned unsold.18
In October 2001, police arrested newspaper vendors in Harare. Police spokesperson Wayne Bvudzijena denied that newspaper vendors were targeted and said that the move was to enforce city by-laws. What he did not adequately explain was why national police, rather than their municipal counterparts, were engaged in enforcing by-laws. Newspaper vendors told the Zimbabwe Independent that the arrests normally took place on Fridays-they day that the paper appears.19 Fifteen vendors had been arrested on October 12, for example, according to one of the newspaper distribution companies.
The following month in Bulawayo the war veterans' threats against newspaper vendors turned violent. In the course of a demonstration against the MDC on November 16, veterans beat up vendors selling private newspapers and destroyed thousands of copies of the Daily News, Financial Gazette and Zimbabwe Independent. MDC supporters in turn beat up a news crew from the government-controlled Chronicle and burned its car.
Legal Moves Against Associated Newspapers of Zimbabwe
"They tried the bombs and failed and now they have come up with something else" - Geoffrey Nyarota, Editor in Chief, Daily News
In addition to police harassment of Daily News journalists and unexplained bomb attacks on the Daily News offices, the government has used other means to harass the Daily News and its parent company.
After the bombing of its printing press in January, ANZ sought additional local investment from a company called Renaissance Asset Management. This new investment was unsuccessfully challenged in the High Court by Diamond Insurance, a minority shareholder in ANZ that is controlled by prominent figures in the ruling party, ZANU-PF.20 An appeal in the Supreme Court is pending.
On October 25, the police picked up four ANZ shareholders who were alleged to have sworn perjured affidavits in favor of the Renaissance investment. Among the four was Judith Todd, a prominent human rights activist who had been detained, embarked on a hunger strike, and was force-fed by the former Rhodesian authorities. The four were released without charge.21
A week later, on November 2, Richard Mbaiwa, the director of the Zimbabwe Investment Centre (ZIC), wrote to ANZ's lawyers telling them that the company's investment certificate had been cancelled and that various "criminal violations" were being referred to the "appropriate authorities." In reality the ZIC could not cancel the certificate, since it had expired in July 2000. An investment certificate is only required for overseas investment in a Zimbabwean company. ANZ had let their certificate lapse since they were not seeking further foreign investment. The matter had been referred to the ZIC by Diamond Insurance in relation to the Renaissance case. Yet, Renaissance is a Zimbabwean company and therefore no investment certificate was required, as Mbaiwa must have known.22
Mbaiwa also alleged that information had been falsified at the time ANZ was formed. He claimed that one of the shareholders, Motley Trading, owned by Daily News editor-in-chief Geoffrey Nyarota and Wilf Mbanga, was not a registered company.
On November 8, police arrested Nyarota and Mbanga without a warrant. They were held overnight and then taken to court to be charged with providing false information to the ZIC. The offence carries a maximum penalty of Zimbabwe $4000 (about U.S.$70 at the official exchange rate, or U.S.$14 at the parallel rate). The procedure was extraordinary, given the nature of the alleged offence. Ten days later, when he dismissed the charges, the magistrate criticized the police for arresting Nyaorata and Mbanga rather than proceeding by summons.
Interception of Communications
On November 23, 2001, police arrested Jimmy Shindi, a manager at Econet Wireless, one of the country's leading cellular phone companies. Shindi was initially charged with obstructing the police, or alternatively defeating the course of justice, before charges were dropped. The reason for his arrest was his refusal to provide police with records of calls made on twelve specified accounts. The basis for his refusal was both the company's confidentiality policy and the failure of the police to produce a search warrant. Police said that they were seeking information about "terrorist" activities by the MDC.23
Only a week earlier, Econet had dropped the political news service that it provided in text messages to its subscribers. The move was seen by analysts as a move to protect itself from political harassment. The company has a long history of legal confrontation with the government, having spent several years in the courts seeking to break the government monopoly of telephone services.24
Two nongovernmental human rights organizations reported to Human Rights Watch that they believed that their email was being intercepted in the period since the Abuja agreement. One organization stated that the problem dated back many months and that hardly any emails sent inwards or outwards reached their destination. The other organization stated that this was a new problem, which it attributed to the current climate of escalated attacks on "terrorists" and their supporters. Both organizations rely on email not only for private communications, but also for regular distribution of publications. Anecdotal evidence suggests that interception of email is a much wider problem-but one that by its very nature is almost impossible to document.
The government certainly has the legal powers to intercept communications. Sections of the Post and Telecommunications Act, passed in 2000, allow the government to give both general and specific instructions to communications providers-including telephone companies and Internet service providers-to intercept communications or to provide the authorities with other relevant information about clients. It is an offence for the provider to disclose that it has provided such information.25
The constitutionality of these provisions has never been tested. Section 20(1) of the Zimbabwe Constitution says: "Except with his own consent or by way of parental discipline, no personal 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."
When Econet was raided in November, a company spokesperson stated that it regularly provided such information to the authorities; the problem on this occasion was simply that the police arrived without a warrant.26
Organizations whose emails are being obstructed believe that this is being done directly by the government rather than by Internet service providers. This is because messages constantly fail to reach their addressee. However, given the provisions of the Post and Telecommunications Act, this has not been confirmed.
Threats to Human Rights Activists
Documentation of continuing abuses by the government and ruling party depends to a large degree on the work of domestic human rights organizations. These have come under increasing threat. Four representatives of Zimbabwean human rights organizations were refused entry into Malawi on grounds of "national security" at the time of the SADC summit in January 2002.27 The official Herald newspaper has made repeated allegations that human rights groups, in particular the Amani Trust, have been "funding covert operations" against ZANU-PF and have acted as conduits for foreign funding of the MDC.28 Both the Amani Trust, which provides psychological support for victims of organized violence, and the MDC have denied the allegations.29 However, the repeated harassment and interrogation of the organization's staff in Bulawayo (see below) has been a more practical interference in its day-to-day activities.
Continued Monopoly of Broadcasting
As in most African countries, radio is the main source of political information for the bulk of the population. The long-standing legal monopoly of broadcasting by the government-controlled Zimbabwe Broadcasting Corporation (ZBC) was ended in September 2000 by a Supreme Court ruling that it was unconstitutional in terms of Section 20(1), which guarantees freedom of expression.30 However, broadcasting remains a de facto government monopoly.
The president promptly enacted new regulations under the Presidential Powers Act, establishing a Broadcasting Authority of Zimbabwe (BAZ) with powers to licence private broadcasters. However, the requirements for qualifying for a broadcasting licence are so stringent that in the opinion of many, including the ZANU-PF-controlled parliamentary legal committee, they are impossible to satisfy and hence do not meet the requirements of the Supreme Court ruling. In April 2001, the regulations were enacted into a law, over the objections of the parliamentary legal committee.
The parliamentary legal committee thought that the new law discriminated in favour of the ZBC and against private broadcasters (in violation of section 23 of the constitution). It also felt that the law denied unsuccessful applicants for a broadcasting licence the right to a judicial review of the decision against them (in breach of section 18 of the constitution).31
Civil society critics of the government amplified these objections to the new law. Issuing of licences is the sole prerogative of the minister, following the advice of an authority that is composed of his own appointees. Some provisions, such as an insistence that broadcasting licensees be 100 percent Zimbabwean owned and that they carry 75 percent local content, are held to be impractical and intended to ensure that no independent braodcasters can qualify. Equally, the limitation of licences to two year periods (one year for community stations) makes it unlikely that anyone would risk the investment. Other provisions, such as the allocation of air-time for the government to "explain" its policies, or the prohibition on community stations broadcasting political matter, are clearly an interference with broadcasters' editorial freedom.32
The claim that the law is designed to prevent private broadcasting rather than facilitate it is borne out by the fact that, more than a year after it was established, the BAZ has not licensed a single private broadcaster. One candidate for a television licence, Oscar Kubara of Munhumutapa African Broadcasting Corporation, told a local newspaper that he had been informed that BAZ would not accept applications for broadcasting licences until April 2002-after the presidential elections.33
Meanwhile the ZBC, despite a much-trumpeted "relaunch" in November 2001, continues to act as an uncritical cheerleader for the government and ruling party.34
"Freedom of Information" Legislation
The Access to Information and Protection of Privacy Bill, published in December 2001, contains hardly a single provision that could be said to broaden public access to information and several that do the opposite. Its protections of privacy apply almost entirely to the "privacy" of the president or other public officials from media scrutiny. The serious limitations on access to information contained in inherited colonial legislation such as the Official Secrets Act and the Protected Areas Act are preserved.
Section 89 of the bill reproduces almost verbatim wording from the Law and Order Maintenance Act that were ruled to be unconstitutional by the Supreme Court in the case of Chavunduka and Choto, concerning statements likely to cause "fear, alarm or despondency."35 Section 69 of the bill says that no journalist shall bring into hatred or contempt, ridicule, or excite disaffection against the president, law enforcement officials, or the administration of justice. The bill is full of broadly worded provisions of this type that effectively limit the scope of freedom of expression in the media.36
But the nub of the bill is the section dealing with accreditation of journalists and the media. Section 86 states: "No journalists shall work in Zimbabwe without being accredited," and that "the Minister shall prescribe the form and manner in which journalists shall be accredited." The bill establishes a Media Commission, part of whose function is as an accreditation body. The commission may accredit an applicant if it is satisfied that the applicant "possesses the prescribed qualifications."
Several provisions of the bill were considered unconstitutional by parliamentary committees responsible for media and, more importantly legal affairs. In response, the government made a number of minor amendments. Notably it retreated on a provision that all correspondents for foreign news organizations must be Zimbabwean nationals, but still required that they should be permanent residents. It appeared that there was still considerable opposition to the bill among ZANU-PF parliamentarians and, as of January 24, it was still unclear whether the bill would be passed into law.37
The government argues that such measures are necessary to protect the public from unprofessional, malicious, and inaccurate reporting. But, as the Media Institute of Southern Africa pointed out in its submission to the Parliamentary Portfolio Committee reviewing the bill, there is already a voluntary media complaints body-and the minister of information had instructed the government-controlled media not to participate in it.38
There is now an extensive array of jurisprudence from both national and international courts establishing that the licensing of journalists is an unacceptable interference with editorial independence and thereby with freedom of expression itself. The most notable of these was an opinion of the Inter-American Court of Human Rights, which differentiated journalists from certain professions that may legitimately be regulated by law, such as medicine or the law:
The problem results from the fact that Article 13 [of the American Convention] expressly protects freedom to seek, receive and impart information and ideas of all kinds...The practice of journalism consequently requires a person to engage in activities that define or embrace the freedom of expression which the Convention guarantees.
This is not true of the practice of law or medicine, for example.39
While this decision does not bind Zimbabwe, it reflects an important prevailing trend in international law. The African Charter on Human and Peoples' Rights and the International Covenant on Civil and Political Rights (ICCPR)-both of which Zimbabwe has ratified-protect freedom of expression and freedom of information in similar terms to those in Article 13 of the American Convention on Human Rights.
Where African courts have been required to adjudicate on these issues, they have tended to reach similar conclusions. The Supreme Court of Ghana, for example, offered this explanation of the decision by the drafters of the country's constitution to opt for a National Media Commission independent of the government of the day:
...the committee recommended an independent Press Commission to be set up to perform the functions hitherto discharged by the Minister of Information with respect to the public sector press...Indiscriminate control of the mass media by the government of the day may contribute a serious obstacle to the full realisation of the objectives of the media in achieving its freedom and independence which is effectively guaranteed by the Constitution.40
However, the Zimbabwean bill goes even further in its attempts to restrict the practice of journalism. Section 93 of the original draft stated that "Any journalists who will be accredited in Zimbabwe will have to be a citizen of and domiciled in Zimbabwe." Section 101 of the original specified that only journalists accredited under Zimbabwean law may represent foreign media organizations. As revised, the bill gives ministerial discretion as to whether a foreign correspondent may work in Zimbabwe. Any resident correspondent for a foreign media organization must be either a Zimbabwean citizen or a permanent resident. The draft is not in accordance with Article 19 of the ICCPR, which states that: "freedom of expression...shall include 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. Article 2(1) of the ICCPR states that the rights enshrined in the covenant shall be guaranteed without discrimination, including on the basis of nationality.
This xenophobic current continues in the sections of the Bill dealing with foreign investment in the media. Section 70 of the original draft stated that only Zimbabwean citizens and companies that are wholly owned by Zimbabwean citizens may invest in the media. As amended (Section 68) the bill does allow foreign investment in the media, but requires a Zimbabwean controlling interest in any media company.
Placing a limit on foreign investment in the media may in some exceptional circumstances be legitimate and would not in itself be a breach of Article 19 of the ICCPR. But in a context where the exchange rate of the Zimbabwean currency is plummeting, along with its foreign exchange reserves, there is no possibility of a new Zimbabwean media organization being established without substantial foreign investment. This is doubly true in a capital intensive sector such as broadcasting.
4 Media Institute of Southern Africa, "Journalists flee Zimbabwe," February 19, 2001; Media Institute of Southern Africa, "Government suspends BBC accreditation," July 27, 2001.
5 Zimbabwe Independent, September 14, 2001.
6 Herald, November 23, 2001.
7 Ibid.
8 Media Monitoring Project Zimbabwe, Election 2000: The Media War, Harare, 2000, p. 94.
9 Media Institute of Southern Africa, "Daily News printing press bombed," January 29, 2001.
10 Media Institute of Southern Africa, "Journalists arrested, press accreditation confiscated," September 11, 2001.
11 Media Institute of Southern Africa, "Daily News journalists, photographer and driver attacked," September 18, 2001; United Nations Integrated Regional Information network (IRIN), "Three journalists assaulted by `war veterans' - RSF," September 19, 2001.
12 Media Institute of Southern Africa, "Journalist arrested, independent newspapers destroyed, news crew attacked," November 19, and "Reporters released," November 20, 2001.
13 Media Institute of Southern Africa, "Reporter picked by police, charged," December 3, 2001.
14 ARTICLE 19 press release, June 5, 2000.
15 Daily News, November 5, 2001; Media Institute of Southern Africa, "Central Intelligence officer attacks photographer outside court," November 6, 2001.
16 Media Institute of Southern Africa, "Photojournalist attacked, independent newspapers destroyed," December 3, 2001.
17 Zimbabwe Independent, September 14, 2001.
18 Zimbabwe Independent, December 7, 2001.
19 Zimbabwe Independent, October 19, 2001.
20 Media Institute of Southern Africa, "Zimbabwe's independent `The Daily News' faces closure," November 7, 2001; Basildon Peta, "Mugabe threatens to force closure of critical newspaper," Independent, November 7, 2001.
21 Daily News, October 26, 2001.
22 Media Institute of Southern Africa, "Zimbabwe's independent `The Daily News' faces closure," November 7, 2001.
23 Business Day, November 26, 2001; Media Institute of Southern Africa, "Police raids offices of Cellphone Company," November 26, 2001.
24 Media Institute of Southern Africa, "Cell-phone provider scraps political news service," November 19, 2001.
25 Post and Telecommunications Act, 2000, sections 98 and 103.
26 Media Institute of Southern Africa, "Police raids offices of Cellphone Company," November 26, 2001.
27 UN Integrated Regional information Network, January 23, 2002.
28 Herald, November 28, 2001 and January 17, 2001. The Herald generally refers to it as the "Armani" Trust, although the organization's name derives from the Swahili word for peace rather than the Italian fashion designer.
29 Herald, November 28, 2001 and Standard, January 20, 2002.
30 Media Institute of Southern Africa, "State broadcaster's monopoly nullified by Supreme Court Ruling," September 25, 2000.
31 Media Institute of Southern Africa, "Government body declares new broadcasting regulations unconstitutional," October 19, 2000.
32 Media Monitoring Project Zimbabwe, Is this the broadcasting system that you want? Harare, 2001.
33 Zimbabwe Independent, September 21, 2001.
34 The Media Monitoring Project Zimbabwe documents the shortcomings of the ZBC-and the rest of the media- on a weekly basis: http://www.icon.co.zw/mmpz
35 In Chavunduka & Anor v Minister of Home Affairs & Anor, (2000) 8 BHRC 390, the Supreme Court found that S50(2)(a) of the Law and Order Maintenance Act, which criminalized the publication of "false statements" likely to cause "fear, alarm and despondency" was contrary to s.20 of the constitution, which guarantees freedom of expression.
36 A full analysis of the bill, including the inadequacy of its provisions for access to information, is to be found in Media Institute of Southern Africa, "Submission to the Parliamentary Portfolio Committee on Transport and Communications on the Access to Information and Protection of Privacy Bill," December 10, 2001.
37 Daily News, January 24, 2002.
38 Ibid.
39 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of November 13, 1985.
40 New Patriotic Party v. Ghana Broadcasting Corporation, Supreme Court of Ghana, Writ no. 1/93, 30 November 1993 (unreported) at 23-4.
