AREN’T EXISTING ZAMBIAN MEDIA LAWS ENOUGH?

By Gershom Ndhlovu

It is difficult to understand on what basis the government wants to enact a law to regulate the media. This difficulty arises due to the fact that there are enough laws on statute books that do so and some, if not most, of them pre-date Zambia’s independence in 1964.

Vice president George Kunda recently told journalists at a meeting with media organisations representatives that the media should give government a framework of their proposed self regulation failure of which would force government to enact its draft law to regulate the media.

The government appears to be motivated to change the law because of the privately owned The Post newspaper which always seems to find fault with President Rupiah Banda and his government and accuses the paper of “twisting” facts. Matters recently came to a head when ruling party supporters resorted to beating up Post journalists and those from other media organisations who failed to produce identification cards.

In his determination to cripple The Post, President Banda ordered the arrest of Post News Editor, Chansa Kabwela for sending a picture of a woman giving birth outside the University Teaching Hospital, the biggest hospital in Lusaka, at the height of a debilitating strike by medical and paramedical staff countrywide.

But for those who followed media and related laws in Zambia know that, first and foremost, the Zambian Constitution’s Part 3 on the Protection of Fundamental Rights and Freedoms of the Individual guarantees the protection of freedom of expression.

Article 20 of the Zambian Constitution of 1996 provides that”(1) Except with his own consent, a person shall not be hindered in Protection of the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.

“(2) Subject to the provisions of this Constitution, a law shall not make any provision that derogates from freedom of the press.

“(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision- (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or

(b) that is reasonably required 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, regulating educational institutions in the interests of persons receiving instruction therein, or the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; or

(c) that imposes restrictions upon public officers; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.”

Going by the above article, the Constitution protects against passing legislation that has the potential to take away freedom of expression and, as such, the passage of the proposed law announced by government through Mr Kunda would clearly contravene the supreme law.

Anyone aggrieved by the media by way of reportage can fall back on the Defamation Act Cap 68 through civil courts. The Act provides in Section 3 that:

“In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

The Act also states what defence those sued for defamation can give, notably justification and fair comment.

The government and the Media Ethics Council of Zambia (MECOZ), under the present circumstances in which there is heightened acrimony between the government and certain media organizations, should publicize and encourage the use of this Act. There would be no better regulation than the use of the Act for erring media organisations to be taken to court.

Ironically, it is the delays of the dispensation of justice in the courts of law under this Act that the formation of MECOZ was mooted because media practitioners who gathered at Andrews Motel in Lusaka in 1998, felt that defamations cases took very long to be determined in the courts of law. With the establishment of MECOZ, it was hoped, adjudication would be done quicker outside courts. Whether MECOZ, which The Post has refused to be part of, is doing that or not is something else.

The government equally has recourse to Cap 87, the Penal Code Act which, among other things, provides under section 191 that “any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed "libel".”

Section 192 states that defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. It is immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead. There is a proviso, though, that prosecution of libel relating to a dead person, consent must be given by the Director of Public Prosecutions.

Section 193 further states that “(1) A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed, to be dealt with, either by exhibition, reading, recitation, description, delivery, or otherwise, so that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.

“(2) It is not necessary for libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means.”

Again, it is difficult to understand why and how the government is hesitant to apply the law when some of its officials feel that newspapers, radio and TV stations, and indeed, other means of communication are deemed to be committing libel.

Cap 161 Printed Publications states that no person shall print or publish, or cause to be printed or published, any newspaper until there has been registered at the office of the Director (of the National Archives) at Lusaka the full and correct title thereof and the full and correct names and places of abode of every person who is or is intended to be the proprietor, editor, printer or publisher of such newspaper, and the description of the premises where the same is to be published.

Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding three thousand penalty units.

There is equally Cap 111, the State Security Act which spells out sanctions for communicating information prejudicial to the safety or interests of the Republic. Most of the offences under this Act carry a minimum term of 25 years.

What better means of regulation can anyone talk about if not the laws stated above and a myriad others that need to be unearthed? Is the new law going to proscribe lawyers, accountants, teachers and ordinary citizens who have no formal journalism training from expressing themselves through the media, or for that matter, owning media companies? Does the government want people to apply for accreditation to perform what is guaranteed them in the Constitution?

I suppose that Mr Kunda, Ronnie Shikapwasha, the minister of information and broadcasting as well as the executives at MECOZ would do well to look at existing laws instead of going through the expensive motion of making new ones which will fall into disuse at some point or other.

**This article appeared in the Sunday Post of August 16, 2009.

Statutory media regulation

Written by Gershom Ndhlovu

Of late, the issue of compelling media organisations and journalists to join the Media Ethics Council of Zambia (MECOZ) and the threat of statutory regulation of the media has been quite hot. I am one of those who feel that MECOZ has gone off the rails and I wish to point out that there is no need for extrastatutory regulation of the media because the laws that are in place are adequate. Unfortunately, I do not have ready access to the laws of Zambia, but from what I can recall off-hand, there is the supreme law, the Constitution which guarantees freedom of expression, which guides every citizen. The piece of law that sends a chill down the spine of every journalist is the official secrets Act which carries a minimum sentence of 25 years. This mainly guides matters of security of the nation. Then there is the Penal Code which prescribes crimes and penalties thereof. Under this law, there is criminal libel and defamation as well as sedition to which any journalist is liable if he or she breaks the law. Anyone who feels that a journalist has criminally defamed someone or has committed an act of sedition is free to report him or her to the police. There is also the law of civil libel and defamation for individuals who feel that a newspaper has written untruthfully about them. Such people are free to sue in their individual capacities to seek compensation for any damage caused them by such publications. A lot of people have invoked this right and many a newspaper has paid the price to an extent of even folding up. Then there is the law of copyright. No journalist in his right frame of mind can go about lifting published or unpublished materials without attributing to that source. Infringement of copyright can be treated both as a civil or criminal matter. As I am recalling these laws from memory, I may have forgotten some of the laws and may have misrepresented what they exactly state. However, the point is that there are enough laws in the land dealing with how the media should operate. Our ministers, members of parliament and politicians in general should not even waste time making a piece of law regulating the media when they can invoke the above laws if anyone breaks the law. One thing for sure is that MECOZ has lost credibility to an extent where it needs serious sprucing if it has to stand with its head high. The people behind it need to go back to the drawing board and start afresh, recapturing the spirit for which it was initiated just over a decade ago. Lecturing on what stories a newspaper should cover, how it should write them and what words should be used, is not in their ambit.  **This post appeared as a letter to the editor in The Post of 19/05/2009.

 

MECOZ lobby is targeting Organizations

Written by Gershom Ndhlovu

I understand the background from which newly-appointed ZNBC acting director general Juliana Mwila is coming. Ms Mwila was until recently director of press and planning at the Ministry of Information and Broadcasting, and by advocating for the accreditation of journalists through the Media Ethics Council Of Zambia (MECOZ), she is actually singing from the same hymn book as the present and former ministers of information. Having been a delegate to the inaugural MECOZ meeting held at Andrews Motel in Lusaka in 1998, I feel that the direction that this body has taken is totally opposite of what was discussed at the time. Every journalist who has studied media law and ethics knows that in Zambia, there is a whole gamut of laws that regulate the media from the civil law of libel to criminal libel in the Penal Code, to the state secrets Act and a whole range in between. In terms of accreditation, journalists used to get accredited through the now defunct Zambia Information Services. I must admit though that I am a bit ignorant about the role of ZANIS in all this for the simple fact that I have been outside the country for the last few years. What I remember about the conception of MECOZ was for people who had any complaints against any one media organisation was to short-circuit the court process in terms of litigation by an offended party because libel cases took unnecessarily long for both the aggrieved party and the newspapers. But the lengths which the pro-MECOZ lobby are taking are worrying because they want to take a tangential course which was not part of those first discussions of September 1998. It is very clear that that lobby has certain people and organisations in mind by calling for compulsory accreditation of journalists. They must also remember that by calling for statutory regulation of the media, they are being like Dr Frankestein who created a monster that came back to haunt him. The law they want enacted now will encroach on the very people demanding it when they are no longer in the comfort of the offices they are holding now. By calling for a Law Association of Zambia-like statute, there are a lot of things that will need to be taken into account, such as education levels of practitioners with the very minimum being a degree. Where will it leave non-degree holders? With the lawyers, there is no short-cut. With journalism, everyone with an opinion can write. Friends (and relatives), think deeply about MECOZ and what you want before you regret a few years down the road. *The above item appeared as a letter to the editor in The Post on 15/5/2009.