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By- J. CHIKAKANO

Ideals for THE Zimbabwe media environment: vis- the legal framework on Access to information and media regulation. By- J. CHIKAKANO. Scope of discussion. Why there is need for a separate ATI & Media regulatory framework. Justification for co-regulation of the media [statutory/voluntary]

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By- J. CHIKAKANO

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  1. Ideals for THE Zimbabwe media environment: vis- the legal framework on Access to information and media regulation By- J. CHIKAKANO

  2. Scope of discussion • Why there is need for a separate ATI & Media regulatory framework. • Justification for co-regulation of the media [statutory/voluntary] 3. Outline of how a co-regulatory framework for the media could work [practically and within the obtaining constitutional framework]

  3. INTRODUCTION • Discussion timely and relevant for a no. of reasons e.g. • Recent events – internet shutdown raised concerns on its implications on F.O.Ex and ATI & on how these rights should be safeguarded at law. • Constitutional alignment project: ongoing & finally gvnt focussing on media laws • SCW held in Nov & Dec 2018 on AIPPA & BSA reforms • awaiting further processes leading to submission of bills in Parliament • SCW over BUT key that stakeholders have a common voice on media legislation ideals for future purpose e.g. for • Parliamentary hearings on the Bills • Engagement/lobbying of MPs [as individuals or as portfolio committees]

  4. 1. Why SHOULD THE ATI & Media regulatory framework BE SEPARATE? Background:AIPPA regulates 3 aspects [ATI, M.F and Protection of privacy/personal information] (a) Current trend is to separate Media Regulation from ATI framework • More than 22 African countries have ATI laws and only 2, Zim and Ethiopia have a combined media regulation and ATI legal framework • ACHPR the A.U human rights promotional body is advocating for a stand-alone ATI law through its ACHPR Model law • S.A. whose Constitution [including on ATI provision] is similar to Zimbabwe’s has a separate standalone ATI law…. It also has a stand-alone law on protection of personal information

  5. Why SHOULD THE ATI & Media regulatory framework BE SEPARATE? (b) When AIPPA was passed, both media freedom and ATI were not explicitly guaranteed rights in the Lancaster house Constitution BUT were read into the right to freedom of expression. - It made sense perhaps back then, to put both aspects in one law. (c) ATI & M.F are now individually & extensively provided in the Constitution which begs for separate legal frameworks to effectively provide for how each right is to be exercised including; • An outline of who can exercise each right • Outline of measures to promote the exercise of each right; • Outline of permissible limitations to each right • Establishment of specific regulatory bodies for the exercise of each right.

  6. Why SHOULD THE ATI & Media regulatory framework BE SEPARATE? (d) AIPPA vests regulatory functions for both ATI & M.F on the ZMC contrary to the constitution where the ZMCs role largely relates to media regulation. • Current standard is for astand-alone ATI law to establish an independent information regulator to among other things; • Promote the right to information & the implementation of the law; • Handle complaints relating to decisions on information requests [ZMC role to handle complaints is only in respect of complaints against the media] • Monitor and report on the compliance of all information holders with the access to information law

  7. 2. JUSTIFICATION FOR CO-REGULATION There are practical as well as legal reasons why Zimbabwe should consider co-regulation of the media; PRACTICAL: • Media landscape rapidly changing, requiring more media involvement in how it operates from a regulation point of view • Lots of factors now at play affecting media ethics & output, ethics [e.g. everyone can now make and disseminate news; fake news/disinformation rife etc] • THUS All hands on deck required in informing how best the media & the media space can be regulated in the interest of keeping the media viable and well positioned to effectively play its 4th estate role

  8. JUSTIFICATION FOR CO-REGULATION • LEGAL JUSTIFICATION: (a) Constitution “prescribes ” statutory regulation through the ZMC. Cant deviate from that. • ZMC’s regulatory functions include: • promoting AND enforcing good practices and ethics in the media; • receiving AND Considering complaints from the public about the media • TAKING ACTION against journalists & other persons employed in the media for breaching the code of conduct • Taking or recommending disciplinary action against media practitioners for breach of their code of conduct [Section 249(1-2)].

  9. JUSTIFICATION FOR CO-REGULATION (b) Self-regulation remains the prescribed standard for regulating the media Article 9(3) of Banjul Declaration ; “Effective self-regulation is the best system for promoting high standards in the media.” • THUS; a compromise co-existence of the Constitutional prescription [statutory] & of the prescribed best practice [self-regulation] is a feasible way forward (c) Constitution creates room for complementary media regulation i.e. through the Power for Constitutional Commissions to delegate some of their functions[Section 321(2)] • Banking on this provision, the law can provide for the ZMC to delegate its functions relating to enforcement of good practices and ethics to voluntary regulatory body(s) (d) Media industry already has voluntary frameworks in place, a ready basis for discussions on how to move forward with a formally recognised, complementary and effective co-regulatory framework.

  10. How can a co-regulatory framework work in zimbabwe HOW a) Formal recognition in the law of existence of voluntary body(s) required e.g. in a law establishing the ZMC AND/OR in a law providing for media regulation as envisaged in s249(3) b) Clear apportionment of roles between the two entities is key to avoid duplication of roles & ensure complementarity c) Voluntary mechanism can be conferred with the role of formulating applicable codes of conduct and enforcing them within the industry NB: in terms of s249(i) (d), the ZMC can only formulate COC when none has been put in place, OTHERWISE, its role is to “encourage” their formulation and a voluntary body can do this d) Voluntary body can exercise initial adjudicative powers on all complaints relating to breach of COC e) ZMC could be a higher “appellate” body for complaints, so that there is a link and complementarity between the two bodies AND Further appeals can lie with the courts

  11. How can a co-regulatory framework work in zimbabwe IMPERATIVES • That voluntary body bewidely accepted and subscribed to [measures required to ensure this including in the law] • That voluntary body is driven by the media itself • That there besafeguards in the law to ensure the independence of the voluntary body FOOD FOR THOUGHT • how can everyone be “encouraged” or compelled to subscribe to the voluntary body? • Should there be one voluntary body or there can be many??

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