When in 2013, a new document that contains the laws that govern the country was adopted, numerous analysts from across the divide seemed to agree on one critical character, that comparatively the document was progressive and that the inclusion of the bill of rights marked a new trajectory the Zimbabwean society was taking.
Those that commented from a legal stand point opined that the ushering in of the 2013 Constitution in Zimbabwe heralded a progressive jurisprudential milestone and framework, moreso when it speaks on media freedom in the country.
Practitioners also could not be left out as they joined in the melodies that sang praises on the 2013 Constitution that somehow compares to some of the best constitutions in the world.
However, despite this progressive legal framework and its glorification, journalists in Zimbabwe have continued to face harassment and violations in their line of work, which is an impudent violation of the constitution and disregard of its dictates.
As it turned out, the songs of praise quickly grew silent and new melodies through the enactment of laws that attack the very sanctity of constitutional provisions on media freedom became deafeningly louder.
Journalists in Zimbabwe face numerous violations that include arrest, detention and criminal prosecution, intimidation by law enforcement agents and politicians, physical harassment and attacks as well as emotional abuse.
All these are an affront to constitutional provisions of press freedom and freedom of expression.
Two journalists, Wisdom Mdzungairi and Desmond Chingarande became the first victims of the 2021 Cyber and Data Protection Act [Chapter 12:07], a statutory provision that was enacted during the Covid-19 pandemic era whose object is to increase cyber-security to build confidence in the use of information and communication technologies by data controllers.
The arrest of the two journalists using the Cyber and Data Protection Act was an unfortunate development which goes against the purport, tenor and spirit of the Zimbabwean Constitution.
In September 2021, nine journalists — Thomas Madhuku, Nyadzashe Ndoro, Leo Munhende, Marshall Bwanya, Gaddafi Wells, Adrian Maratu, Tongai Mwenje, Tongai Muringai and Robert Tapfumaneyi — were arrested while covering demonstrations in Harare.
Such a sad and unfortunate development was not only unconstitutional but out of sync with global trends on media freedom and even the political rhetoric from bureaucrats, securocrats, politicians and political parties alike.
The fundamental legal question that we need to unpack is; Is journalism a privilege or a fundamental constitutional right?
Just like any other job, when journalists go about executing their constitutional mandate, their dignity and their person must be protected.
They are workers whose decorum should be protected and promoted in a democratic society based on human dignity, equality and freedom.
What is important to understand when dealing with fundamental rights such as right to media freedom which are constitutionally entrenched is their importance in constitutional architecture.
From a Constitutional and Fundamental Rights perspective, we have what are known as First and Second Generation type of rights and we shall explore these to be able to draw conclusions and possibly take an informed position on the obtaining question.
First-generation rights are traditionally liberal rights known as civil and political rights. For example, first generation rights include, the right to life, equality before the law, freedom of speech and freedom of religion among others.
They are also called negative rights, which means that they impose a duty on all organs of the state to act in a certain manner as shown in Section 44 of the Constitution that adequately deals with this.
The imposition of a negative obligation on the state means that the state must not interfere with someone who is exercising a constitutionally protected right, which falls within the first generation rights.
The state can only interfere or limit such a right through the law of general application, which means that limitation of such a right must be reasonable and justified in an open and democratic society based on human dignity, equality and freedom.
In the Constitution of Zimbabwe these are what are commonly known as Chapter 4 rights.
Second-generation rights are those rights that are commonly referred to as socio-economic rights. An example will be S77, which deals with the right to food and water. They are also referred to as positive rights, meaning that the state has a positive duty and must take all the necessary steps to ensure the full enjoyment of these rights. Such type of rights obligates the state to take reasonable legislative measures within the limits of resources for the progressive realisation of that right.
A calibrated constitutional interpretation of such rights means that the state enjoys latitude to have discretion on the fulfilment and realisation of such a right. In other words, this could be interpreted to say, as long as the state does not have resources, the right cannot be enjoyed.
If one closely looks at these two types of rights, there is a fundamental difference in their application, enforcement and interpretation.
Since we have identified that freedom of speech is found under first generation rights, it therefore follows that Section 61 of the Zimbabwe Constitution that deals with freedom of expression and freedom of the media is a first-generation right.
Legally this entails that the State must not interfere with anyone exercising this right, and it can only be limited by a law of general application.
Unlike second-generation (socio-economic) rights which can be enjoyed through a privilege, media freedom is a fundamental right safeguarded by the constitution of Zimbabwe.
The biggest challenge that has led to the continuous violation and limitation of these first generation rights leading to a toxic journalistic and media space in the country is that natural persons, juristic persons and other organs of the State view media freedom as a privilege, yet it is clearly a constitutionally entrenched fundamental right.
Around the world, the media is always referred to as fourth power or fourth estate, a phrase, definition or characterisation that clearly locates its centrality and underlying epistemological role in strengthening democratic tenets and practice.
According to the European Convention for the Protection of Human Rights and Fundamental Freedom, press freedom is integral and the bedrock of freedom of expression and should be enjoyed without any infringement by the State.
Additionally, resolutions of the Convention on the Safety of Journalists casts a huge responsibility on all States to ensure their policies, laws and practices are in full synchrony with their commitments and obligations under international law as stated in article 5 of the convention.
When States are in full compliance with these commitments, they will not limit or gag journalists and other media practitioners from executing their duties independently and objectively within the parameters of the law and devoid of undue influence.
Furthermore, to assert the position and clear the confusion on whether press freedom is a privilege or a fundamental right, article 19 of the Universal Declaration of Human Rights adequately addresses this. It declares that every person has the right to freedom of opinion and to seek, receive and impart information through a media of choice.
But, in most jurisdictions, especially in countries in the global south, Zimbabwe included, the situation is a different story altogether. As lamented by the United Nations Secretary General Ban Ki-moon, most governments and those that hold the levers of power have found ways to circumvent this obligation and limit the fundamental right.
Besides violence, physical harassment and attacks on journalists, authorities have come up with various ways such as exorbitant multiple taxation and licence fee obligations for media houses, cumbersome and windy licensing process for media players, barring journalists perceived to be critical of government from covering events, the use of accreditation as a tool to target journalists, censorship of the cyberspace and also the closure of internet as a way of controlling access and the flow of information.
What then must be done to ensure fundamental rights on media freedom and freedom of expression as enshrined in sections 61 and 62 of the constitution? These are our suggestions.
First, there is a need to wipe off the confusion and contestations on the principle of media freedom and freedom of expression to enhance clarity on whether these freedoms are a privilege or fundamental rights? This question has been addressed. Clarity on these will also help reduce violations of these rights by authorities.
The second suggestion is that there is a need for political will to ensure that journalists are protected and not violated as they execute their duties. In other words, we call on all political parties in the country to transform their political rhetoric on non-tolerance to violence in general and in particular on journalists into action.
Our third suggestion that will ensure freedom of expression is respected and taken for what it is-a fundamental right, perpetrators should be arrested regardless of who they are in society or which political party they belong to. After all, the constitution is the supreme law of the country and must be immune from violation.
Our fourth suggestion is that there should be enactment of laws that do not curtail freedom of expression and deliberately promote the enjoyment of that fundamental right.
The last suggestion is that those that violate the constitution by meting violence and harassment on journalists should be prosecuted and if found guilty, convicted.
As the country is heading to the general elections in some few months to come, the manner in which the media and media practitioners are going to be treated by the government, law enforcement agents and political parties will be used as a yardstick to measure the kind of violations on the fundamental right of freedom of expression.
Zororai Nkomo is a Zimbabwean journalist, Lawyer and social justice advocate, he writes in his own personal capacity. He can be contacted on zoronkomo@gmail.com
Perfect Mswathi Hlongwane is the Secretary General of the Zimbabwe Union of Journalists, a Journalist, Political Scientist and Public Policy analyst. He can be contacted on mswathi.ph9@gmail.com
