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Scanlen & Holderness v. Zimbabwe

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    April 3, 2009
  • Outcome
    Decision - Procedural Outcome, Admissible, Violation of a Rule of International Law, ACHPR Violation
  • Case Number
    297/2005
  • Region & Country
    Zimbabwe, Africa
  • Judicial Body
    African Commission on Human and Peoples’ Rights (ACHPR)
  • Type of Law
    International/Regional Human Rights Law
  • Themes
    Licensing / Media Regulation

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Case Analysis

Case Summary and Outcome

The African Commission on Human and People’s Rights (ACmHPR) held that Zimbabwean legislation which introduced an onerous regime for the accreditation of journalists was inconsistent with the African Charter on Human and People’s Rights. The Supreme Court in Zimbabwe had dismissed an application brought by media advocacy groups seeking a declaration that the legislation was unconstitutional. The ACmHPR reasoned that registration procedures for accreditation and the regulation of journalists do not themselves constitute a violation of the right to freedom of expression. However, the imposition of onerous conditions and the control of journalists by a non-independent body infringed the rights to freedom of expression and to receive information.  The Commission recommended that Zimbabwe repeal the offending sections of the legislation, decriminalize offences relating to the accreditation of journalism, adopt a legislative framework for self-regulation and bring the legislation into line with the African Charter and other international human rights instruments.


Facts

In March 2002, the Zimbabwean legislature passed the Access to Information and Protection of Privacy Act AIPPA). Section 79 required all journalists to register with the Media and Information Commission (MIC), and section 80 imposed punishments of up to two years imprisonment for “abusing journalistic privilege” which included the publication of false news (paras. 4 and 77).

A number of media advocacy groups in Zimbabwe – the Independent Journalists Association of Zimbabwe, the Zimbabwe Lawyers for Human Rights and the Zimbabwean chapter of the Media Institute of Southern Africa – were concerned that the legislation infringed the right to freedom of expression on a number of grounds. First, the MIC was “managed by a board appointed by the Minister of Information and Publicity” and the groups believed that the Minister would act on directions from the President of Zimbabwe. Secondly, they believed that “compulsory accreditation of journalists, irrespective of the quality of the accrediting agency, interferes with freedom of expression” and that “compulsory accreditation of journalists by a Commission which lacks independence interferes with professional independence and the autonomy of the journalism profession”. The groups said that the infringement was compounded by the requirement that the accreditation be renewed annually. They argued that the legislation was “inherently inimical to freedom of expression and has no justification in a democratic society” and that “self-regulation is a central feature of an independent profession” (paras. 6-7).

The civil society groups applied to the Supreme Court for a declaration that the provisions were unconstitutional. The Court dismissed their application, and the groups subsequently applied to the African Commission on Human and People’s Rights (ACmHPR) in the name of their lawyers, Scanlen and Holderness, for a declaration that sections 79 and 80 infringed the right to freedom of expression under article 9 of the African Charter on Human and People’s Rights (ACHPR).


Decision Overview

The ACmHPR had to determine whether the legislation was consistent with the African Charter.

In support of their argument that the legislation infringed article 9 of the African Charter, Scanlen and Holderness argued that “regulation other than self-regulation, is undesirable in a democratic society” and that the legislation was unnecessary because civil and criminal defamation operates as a sufficient regulation of journalists, for example in the context of falsity. In addition, Scanlen and Holderness submitted that as the legislation imposed “intrusive and burdensome” registration procedures, including the provision of personal information, it amounted to self-censorship and centralised control of journalism by the government (para. 43). Further, the MIC maintained full discretion over which journalists it would recognise, and so provision of the required personal information would not guarantee accreditation. Scanlen and Holderness also argued that the precondition that a journalist be accredited to a media house “amounts to restriction on the practice of journalism and the free flow of information” (para. 44). They submitted that the system of accreditation “is aimed at controlling and even obstructing the work of a journalist” (para. 47).

In their submissions Scanlen and Holderness made reference to the Inter-American Human Rights system, and quoted article 13(3) of the American Convention on Human Rights which states that “[t]he right of expression may not be restricted by indirect methods or means such as the abuse of government or private controls over newsprint, radio broadcasting frequencies or equipment used in dissemination of information” (para. 49). They also referred to the Inter-American Court of Human Rights case of Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism which had held that “[t]he compulsory licensing of journalists does not comply with the right to freedom of expression” (para 50). Scanlen and Holderness argued that the right protected by the American Convention on Human Rights and the ACHPR not only protects the right to freedom of expression on an individual level but also “implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others”. They argued that “if you control journalists you control expression, controls are an obstacle to the means of expression and therefore against freedom of expression itself”. They said that freedom of expression “includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible” (paras. 52-54).

Scanlen and Holderness referred to the Zambian case of Kasoma v. Attorney General civ. Case N0. 95/HP/2959 in which the High Court had declared compulsory registration of journalists unconstitutional. They submitted that “the real purpose of the licensing system established by AIPPA is to provide the government with a measure of control over journalism and to prevent, or at least limit, critical reporting” (para. 60).

Zimbabwe argued that there had been no violation of the right to freedom of expression, and submitted that the MIC was not susceptible to political interference. Further, it said that the Zimbabwean Constitutional Court had ruled that accreditation of journalists was constitutional as long as it was not onerous and that the Zimbabwean Constitution protects freedom of expression in the same way as article 9 of the African Charter. It went on to argue that in both the Constitution and the Charter the right to freedom of expression is not absolute and can be limited. Zimbabwe submitted that allowing self-regulation “amounts to no regulation” and that the African Charter is explicit in that “the exercise of the right is subject to national law” (para. 69) and that as the legislation was made in terms of the Zimbabwean Constitution and was declared constitutional by the Zimbabwean Court it was legitimate.

The ACmHPR began by assessing whether “compulsory accreditation in itself affect[s] the enjoyment of freedom of expression” and said that “registration procedures are not in themselves a violation of the right to freedom of expression, provided they are purely technical and administrative in nature and do not involve prohibitive fees, or […] impose onerous conditions” (para. 90). However, it held that the legislative provisions in the present case “undoubtedly have a negative effect on the exercise of freedom of expression” and that the law “creates considerable scope for politically motivated action by the authorities” (para. 90). The ACmHPR, with reference to the Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism case from the Inter-American Court of Human Rights, said that “[t]he compulsory accreditation of journalists has been held at both national and international levels to be a hindrance to the effective enjoyment of the right to freedom of expression”.

The ACmHPR made a distinction between regulation of journalism for the purpose of the “identification of journalists, the maintenance of ethical standards, competence, and the betterment of the welfare of journalists” and that which “aims to control rather than regulate the profession of journalism” and that in the latter situation it constitutes a “restriction of the freedom to practice the journalist profession” (para. 97).

The ACmHPR agreed with Scanlen and Holderness that “the presence of laws which provide for civil and other legal sanctions in the event of any injury caused, or infraction of the law by journalists during the practice of their profession, coupled with self regulation, would provide an adequate mechanism for the regulation and control of the journalism profession in a democratic society, without the necessity of the rigorous regime”. It held that, while accepting that the right is not absolute, the legislation did not constitute a permissible limitation (para.107).

The ACmHPR emphasized that “when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to ‘receive’ information and ideas” (para. 108). In other words, “expression, reception and dissemination of ideas and information are indivisible concepts”.

The ACmHPR criticized Zimbabwe’s reliance on notions of protecting public order as justification for the legislation and said that the “maintenance of public order in the exercise of the freedom of expression is perfectly conceivable without the necessity of restricting the practice of journalist” and that “the same concept of public order in a democratic society demands the greatest possible amount of information …” (para. 110).

The ACmHPR also rejected Zimbabwe’s argument that because the restrictions were contained within Zimbabwean legislation they met the test of them being “within the law”. The Commission said that “the meaning of the phrase ‘within the law’, must be considered in terms of whether the restrictions meet the legitimate interests, and are necessary in a democratic society” and that “the concept of ‘within the law’ employed in the Charter cannot be divorced from the general concept of the protection of human rights and freedoms” (para. 112). It referred to its decisions in Jawara v. The Gambia Communications 147/95 and 149/96 and Abubakar v. Ghana Communication 103/1993 [(2000) AHRLR 124 (ACHPR 1996)] in which it had held that the phrase “within the law” must be interpreted so as to “give effect to the protection of human and peoples’ rights” (para. 115). The Commission said that a state cannot argue that the justification for a rights infringement is that it is contained within a national law because to do so “would be tantamount to admitting that the exercise of freedom of expression is left solely to the discretion of each state party” (para. 115). It continued, and said that such a situation “will cause jurisprudential/interpretation chaos, as each state party will have its own level of protection based on their respective domestic laws” (para. 115).

In conclusion, the ACmHPR held that Zimbabwe’s argument that accreditation of journalists and the punishment of the publication of false news was necessary for public order was “unsustainable and an unnecessary restriction of the individual’s practice of journalists”. Further, the law limited the right of citizens to receive information.

Accordingly, the African Commission held that section 79 was an infringement of article 9. In respect of section 80, the Commission held that it “reiterated the restrictions imposed by section 79, without giving any justification for such restrictions” and that it was also an infringement of article 9.

The ACmHPR recommended that Zimbabwe repeal sections 79 and 80, decriminalize offences relating to the accreditation of journalism, adopt a legislative framework for self-regulation, bring the legislation into line with the African Charter and other international human rights instruments and report on the progress of the implementation of the recommendations within six months of the decision (para. 125).


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The decision expands expression by reiterating international standards, in particular, the ruling from the Inter-American Court on Human Rights that compulsory accreditation requirements for journalists hindered the enjoyment of the right to freedom of expression.

Global Perspective

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Case Significance

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Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

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