Zimbabwe's Constitution and a free media

By Patience Zirima

Much has been written about the repressive media environment and the lack of express guarantees of freedom of expression of the media in Zimbabwe. There has been contestation of the notion of a free press in some spheres that question the very notion of press freedom, and yet the rights to free expression are premised on the basic right to speak. To say that everyone has a right to speak is trite because of the mundane assumption that all human beings speak, as an essential part of being human. That we need to be reminded of the basic right to communicate in a Constitution as an inalienable part of being human is a sad testimony of human societies.

Be that as it may, as Zimbabwe crafts its new Constitution, whether it is crafted now or sometime in the future, depending on whether we stop haggling long enough to come up with a passable document, citizens need to continue to demand basic rights. In an ideal situation, the Constitution needs to be a reflection of our values as society. Freedom of expression is a fundamental right in Zimbabwe, among other civil and political rights as a value that is at the foundation of our state; set in the democratisation agenda dating back to the quest for black majority rule and current battles for inclusivity and participation by all in our nation.

Amidst the chaos, disruptions name calling, financial (mis) management surrounding the Constitution making process, the actual issues and content has almost been lost. Very little debate has happened around the issues themselves and what citizens of Zimbabwe can expect to see in the new Constitution. There have been sporadic bursts of discussions by various organisations that have earned a few centimetres of media space, but overall these have been buried by an avalanche of populist writing on "elections without a Constitution", the "SADC roadmap" or the "COPAC mafia".

That said, the world over, the right to freedom of expression has broadly been premised on three points that we need to take into consideration, the capacity of freedom of expression to:

  1. Promote democracy. The capacity of citizens to hold governments to account and to effectively exercise the power to choose their governments depends on the free flow of information from government
  2. Promotes the search for "truth" J.S Mills in "On Liberty" advanced the argument that subjecting an expressed opinion to contradiction exposes falsehoods and produces a proper understanding of the truth
  3. Allow individuals autonomy to form their own opinions about their beliefs and actions. This is integral to self development.

Besides the above considerations, there are international legal standards on freedom of expression including decisions of international human rights courts, international human rights instruments and other regional mechanisms. The broad definition on freedom of expression in these instruments includes the right to seek, receive and impart information and ideas; and the right extends to speaking, writing, as well as non-linguistic communication as well.

One of the critical issues within freedom of expression is the need to have press freedom enshrined in the Constitution. A free and independent press is an important determinant for democracy as the media promotes the right of the public to receive information on matters of public interest from a variety of sources. The "leaked" draft Constitution published by both sides of the polarised press contains key provisions of freedom of expression, including press freedom. This is sadly tempered by the provision of a Constitutional Commission to police the media. The inclusion of the commission is a contradiction as there is freedom guaranteed on one hand and a policing agent on the other.

It is understood that all constitutional rights of freedom of expression are universally limited but these limitations should be clearly and unambiguously set out, and most importantly should be "justified in a democratic society". Our constitution needs to address the question of how and in what circumstances freedom of expression can be restricted. In many Constitutions, notably South Africa in our region, the proportionality test is used, that requires an examination of the "end" pursued by the law and the means used to pursue it, and authorises "balancing" of competing rights and interests. A narrow set of limitations that are considered justifiable in a democratic society include a) for the respect of the rights and reputations of others, b) for the protection of national security or of public order, or of public health and morals. The leaked draft Constitution sets limitations for all fundamental rights and freedoms "..only in terms of general application and to the extent that this limitation is justifiable in an open, just and democratic society".

As noted earlier, it remains critical for Zimbabweans to engage in the constitutional process, to define what will work for the country and what the alternatives are. In the media, the starting point is to define the media we want, and importantly the media we deserve. As we do this however, there remains a case to be made for freedom the media in Zimbabwe, as a democratic right that has been a cornerstone of our state and a key to development.

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