New Zimbabwean legislation and the prospects for a free and fair election

Updated February 2002

Dumisani Muleya (2002), an analyst for the Zimbabwe Independent, has described Robert Mugabe as a "swashbuckling" candidate for the upcoming elections. Hard though it may be to imagine the 77 year old Mugabe a swaggering and flamboyant adventurer, the sword he brandishes is not imaginary. It is his control and manipulation of state machinery. Ever since the Zimbabwean governments announcement that presidential elections would be held on March 9 and 10 2002, a number of controversial pieces of legislation have been passed through parliament.

The Access to Information and Protection of Privacy Bill 2001 has been labeled, "ill conceived, badly drafted and dangerous" (Crozier 2002). Clause 5 of the Bill states that, "...every person shall have a right of access to any record, including a record containing personal information, that is in the custody or under the control of a public body". This right however is subject to a string of qualifications and restrictions. Access to the above mentioned information is not granted to people who are not Zimbabwe citizens or permanent residents; bodies corporate, partnerships and trusts a majority of whose members are not Zimbabwe citizens; any mass media service which is not registered under the Bill (The term "mass media" is not defined in the Bill); a broadcaster who is not registered under the Broadcasting Services Act and a foreign state or an agency of a foreign state. Furthermore a request may be refused if granting access to the information concerned would not be in the public interest. Despite conferring a right to information, the Bill's arduous qualifications severely limit access to this right.

Clause 68 of the Bill entitled "Freedom of Expression" states that "the retrieval, receipt, production and dissemination of information and opinion to the public shall not be liable to restrictions (and also) there shall be no censorship of mass information or the suppression of the dissemination of information and materials...meant for the public". Clause 69 however entitled "Abuse of Freedom of Expression" makes it an offence, inter alia to use a mass media service for the purpose of, "denigrating, bringing into hatred or contempt or ridicule or to excite disaffection against the president, the law enforcement agents or the administration of justice in Zimbabwe". The danger with this clause is that a person may be convicted on the basis of his purpose alone even if his conduct did not bring the president into hatred or contempt. Clause 69 also makes it an offence to use the mass media for the purpose of "publishing a fabricated record of personal information".

Clause 70 of the Bill prohibits certain classes of people from owning or co-owning a mass media service. Notwithstanding its disqualification of minors, unlawful organisations etc it also disqualifies foreigners (people who are not citizens of Zimbabwe.) It is pointed out that this may be considered unconstitutional in so far as these exclusions should be, according to Section 20 of the Zimbabwe Constitution, "in the interests of defence, public safety, public order, the economic interests of the state, public morality or public health" or for the purpose of "protecting the reputations, rights and freedoms of other persons". It should be noted however that Section 20 also makes provision for "maintaining the authority and independence of the courts or tribunals or the Senate or the House of Assembly" (Constitution of Zimbabwe 1980, Article 20).

References:

ACCESS TO INFORMATION AND PRIVACY BILL 2001.

CONSTITUTION OF ZIMBABWE 1980.

CROZIER, BD 2002, "Comment on the Proposed Information Bill" IN ZW News.com, January 2.

MULEYA, D 2002, "Electoral Process Abused as Poll Nears" IN Zimbabwe Independent, January 14.