Zimbabwe: Monthly Report on Media Freedom Violations

MISA-Zimbabwe

Monthly Report on Media Freedom Violations in Zimbabwe
Issue 1 May 2002

In this Issue

1. Introduction

2. Summary of Media Alerts May-April 02

3. Lists of journalists arrested since the March presidential election

4. Analysis of Section 80 of the Access to Information and Protection of Privacy Act

1. Introduction

This is the first issue of MISA-Zimbabwe’s monthly reports on media violations and related issues. The report will document and analyze all the cases of arrests and litigation that have been taken against journalists from the time the Access to Information Act was accented to by President Robert Mugabe in March 2002. The primary purpose of the report is to summarize the Media Alerts that MISA-Zimbabwe issue through its Media Monitoring Unit.

The Minister of Information and Publicity, Professor Jonathan Moyo, seem to have kept his word that that the Access to Information and Protection of Privacy Act will put to silence what he termed “gutter and trash journalism”. The Act has indeed been invoked over 12 (twelve) times to date, however not against gutter and trash journalism, but on the contrary, to silence the Zimbabwe private media from performing its constitutionally guaranteed duty of informing the public. The Act hovers over the operations of each man and women working in the private media in Zimbabwe, as literally anything written or published can be “criminal”. The coming of the Act has seen the arrests of journalist at a frequency that has never been experienced in independent Zimbabwe. And the arrests are for virtually anything one’s mind can fathom.

The arrests under the name of violating Section 80 of the Access to Information and Protection of Privacy Act, strike no resonance with the general spirit that the whole Act must stand for, that is: opening and enhancing the flow of information to the general public.

What can be dictated is the undesirable evolution of a well-orchestrated plan to break the will and resolve of private media journalists to carry on with their social role of writing and disseminating news. The media laws in Zimbabwe have become instruments of oppression rather that anything to further the development and stability of society. As mentioned before by MISA-Zimbabwe, the arrests of journalists, intimidation and psychological harm they are subjected to, have becomes the latest episode of Zimbabwe’s drama of lawlessness and state sponsored anarchy.

2. Summary of Media Alerts issued by MISA-Zimbabwe

In May 2002 MISA-Zimbabwe issued a total of 31 media alerts. The breakdown of the alerts is as follows:

Arrests/litigation and updates: 24
Beatings, intimidation and harassment: 4
Broadcasting and others: 3

The month of May, as can be seen above was dominated by the arrests of journalists mainly on allegations of having written falsehoods and breaching section 80 of the Access to Information and Protection of Privacy Act. Of major concern to MISA-Zimbabwe was the detention of journalists in police cells for as many as two days and indeed the trumping of baseless charges, merely to harass journalists. This was the case when:

Ø Daily News reporters Lloyd Mudiwa and Collin Chiwanza and the Guardian correspondent Andrew Meldrum were arrested on 30 April 2002. The three were arrested for allegedly “lying” that ruling party supporters beheaded a Maguje woman in front of her children.

The Access to Information has no provision that allows the police to hold journalists after charging them or even holding them overnight. Another worrying development is the clear lack of knowledge of the police in the manner they are arresting journalists. A case in note is that of:

Ø Collin Chiwanza who was arrested despite the fact that he had not written anything but had merely accompanied Mudiwa on an assignment to Maguje. The state prosecutor was not even aware of this on the day the three made their first appearance in Court. Chiwanza was therefore subjected to unnecessary suffering and inconvenience because of the clear incompetence of the police. In an interview with the state media Information Minister Moyo said that he has nothing to do with the arrests as the police are simply doing their job of arresting “criminals”.

Ø Bornwell Chakaodza and Farai Mutsaka were again arrested on 23 May over a story, which said that Information Minister Jonathan Moyo intended to make personnel changes at the Zimbabwe Broadcasting Corporation and the Zimpapers newspapers group. The Minister countered by saying that the story was false which led to the two being arrested. As has turned out, indeed new senior appointments have been made at the ZBC as said by the Standard of 12 May. A new Chief Executive Officer and editors have since been appointed contrary to the denials of Moyo. It is therefore interesting to see how the state is going to proceed with the matter.

Of note, as well is the fact that although almost all the arrested journalists have been charged under the Access to Information and Protection of Privacy Act, the police are deciding to detain some journalists for days and in some cases they have decided to proceed by way of summons. In the MISA-Zimbabwe alert issued on 21 May, it was stated that:

Ø The police have arrested Daily News Editor in Chief Geoff Nyarota over the Maguje story. The police recorded a statement from Nyarota but did not charge him and instead are to proceed by way of summons. Chiwanza, Meldrum and Mudiwa were however detained for two days over the same story and have so far appeared in court three times. Were as the courts demanded bail from the Standard journalists that is Chakaodza, Mutsaka and Kanyuchi, other journalists were left to go without paying any bail. MISA-Zimbabwe, as stated already, does not see the need, and indeed as it is illegal, to detain journalists and demand hefty bail monies from journalists for mere allegations that the Department of Information and the police would have trumped up. A pattern is developing were there is clearly no understating of the law under which the journalists are being charged under.

Ø Of interest as captured in the alerts of 8 and 17 May is the filing in the Supreme of a Constitutional challenge to repressive clauses in the Access to Information and Protection of Privacy Act. Two Zimbabwean journalists, Jaan Raath and Peta Thornycroft and a permanent resident Andrew Meldrum, who are correspondents for foreign papers and news agencies, filed the application as an urgent matter. On 17 May MISA-Zimbabwe wrote that the Supreme Court has ruled that the matter is not urgent.

Ø MISA-Zimbabwe also issued out an alert on 6 May over The Chronicle’s lead story call for the banning of The Daily News. The strange call was ironically made on May 3, which is the World Press Freedom day. The story strikes a chord with a call that was made by Minister Moyo on 1 May when he said that parastatals and other advertisers must stop supporting the private media. MISA-Zimbabwe issued out a statement in which it condemned these statements.

Ø MISA-Zimbabwe also issued out alerts on the predicament of the private broadcasting station, Joy TV which faced closure following the ZBC’s announcement that it would cancel the lease agreement on May 31. Joy TV has since been closed. An alert on the Capitol Radio’s Supreme Court challenge of the legality of the Broadcasting Authority of Zimbabwe was also issued. The matter is set to be heard on 19 June 2002. Another interesting Alert was issued on the High Court judgment compelling ZBC to restore the banned National Development Association Programme, “Talk to the Nation”. The alert was issued on 30 May. The High Court ordered the ZBC to bring back the programme within five days.

The tendency of beat journalists, lawfully doing their duty, reared its ugly head when:

Ø Urgunia Mauluka a Daily News photographer, was beaten up by a corruption suspect, facing trial at the High Court. This incident was recorded in a MISA-Zimbabwe alert issued on 8 May.

On 13 May MISA-Zimbabwe also reported that the opposition Movement for Democratic Change had refused the state media permission to cover one of its rallies.

3. List of journalists arrested since the March Presidential election

1. Geoff Nyarota was arrested on Monday 15 April 2002 from his offices. He was taken to the CID Law & Order Section at Harare Central Police Station for questioning. A warned and cautioned statement was recorded in the presence of his lawyer, Lawrence Chibwe of Stumbles and Rowe. He also had his fingerprints taken, and police indicated that they would call him any time when they wish to pursue the matter. He was charged under Section 80(1)(b) as read with Section 2 of the Access to Information and Protection of privacy Act. It is alleged that the headline of the Daily News on 10 April 2002 which read: Mudede Tape Proves Mugabe Lost Election”, on election results was false or fabricated hence Nyarota could be guilty of an offence as the Editor of the paper. Nyarota was released and told that the police will call him any time if they feel they have gathered enough evidence to prosecute him for the alleged offence.

2. Dumisani Muleya was picked up on Monday 15 April 2002 by CID Law and Order
Section for questioning in connection with an article he wrote in the Zimbabwe Independent of 12 April 2002. The story entitled “First Lady’s brother in bid to take over local firm” refers to a one Erasmus Marufu, alleged brother to Grace Marufu. Muleya was charged under Section 80(1)(b) as read with Section 2 of the Access to Information and Protection of Privacy Act, which deals with “abuse of journalistic privilege”. He was made to sign a warned and cautioned statement in the presence of his lawyer Innocent Chagonda of Atherstone and Cook. The police or the State will proceed by way of summons in the event that they wish to pursue the matter.

3. Iden Wetherell, Editor of the Zimbabwe Independent was picked up on Wednesday
17April 2002 by CID for questioning in connection with a story carried in his paper
Written by Dumisani Muleya. He was charged under Section 80(1)(a) of the Access
to Information and Protection of Privacy Act. Innocent Chagonda of Atherstone and
Cook represented him. The police or the State will proceed by way of summons in the
Event that they wish to pursue the matter.

4. The High Court ordered the release of a foreign correspondent for the British newspaper, Peta Thornycroft who was arrested and detained for a week for allegedly publishing false information in Contravention of Section 80(1)(b) as read with Section 2 of the Access to Information and protection of Privacy Act. She was not formally charged but was released unconditionally, although the police or the State can pursue the matter by way of summons. She was arrested She was arrested on 27 March and released on 31 March 2002. Thornycroft was arrested while investigating reports of a campaign of retribution against opposition MDC supporters.

5. On 30 April 2002 Lloyd Mudiwa and Collin Chiwanza of The Daily News were arrested and latter charged for “abusing journalistic privilege in terms of Section 80 (1)(b) as read with Subsection 2 thereof of the Access to Information and Protection of Privacy Act [Chapter 10: 27]. The arrest was in connection with a story headed “Two Girls Witness Mother Beheaded”. Warned and cautioned statements were recorded after the arrest of The Daily News Driver, Mr. Mukwecheni. The Officer-In-Charge informed the trio’s legal practitioner that “your clients have committed a serious offence and we are detaining them.” On 1 May the journalists were placed on free bail pending a ruling to an application for refusal to place the journalists on remand. Mr. Chiwanza was not placed on remand but Mr. Mudiwa was placed thereon.

6. Pius Wakatama was arrested on 6 May 2002 and charged with two counts of contravening Section 80(1)(b) as read with Section 2 of the Access to Information and protection of Privacy Act. It is alleged that he “published false stories” being the “Magunje Story” and the other concerning the Dawson family of Rainham Farm. However, he does not have a story to answer in terms of Section 80 (assuming that it is Constitutional) since he did not publish the stories but merely commented on them after their publication. Warned and cautioned statement was recorded and he was released unconditionally. In the event that the State decides to pursue the charges preferred against him, he would be advised by way of summons.

7. Andrew Meldrum, a correspondent for the British’s Guardian newspaper and a permanent Zimbabwean resident was arrested on the 1st of May 2002. He was charged together with two Daily News journalists Lloyd Mudiwa and Collin Chiwanza who were arrested the day before, for reproducing the “Magunje Story” in the Guardian Newspaper. He is charged with contravening Section 80 (1)(b) as read with section 2 of the Access to Information and Protection of Privacy Act. Subsection (b) forbids the publication of falsehoods. He was remanded out of custody and Mrs. Mtetwa of Kantor and Immerman filed a constitutional challenge of the Access to Information and Protection of privacy Act including Section 80 thereof.

8. Brian Mangwende a reporter with the private daily paper, the Daily News was
Arrested in the eastern border city of Mutare on Friday 10 May. Mangwende was detained for two hours on allegations of having written a false story over the victimization of schoolteachers working in Zimbabwe’s rural areas. Mangwende wrote that war veterans and ruling party ZANU-PF youths forced 107 503 teachers through out the country to pay “protection” fees. The story was based on a report compiled by the Progressive Teachers Union of Zimbabwe (PTUZ), and also quoted the president of the union, Takavafira Zhou. PTUZ is a trade union of teachers in Zimbabwe. Police Officers from the Law and Order Section as well as the Criminal Investigations Department picked up Mangwende at 8.15 am and held him for two hours. No charges were preferred on Mangwende. The journalist was questioned by a police officer identified as Detective Inspector Dhliwayo on the authenticity of his story. Innocent Gonese of Gonese and Ndlovu Legal Practitioners represented the journalist. “The police did not charge him. They said that they would get in touch with him when they need him. They did not record a statement from him so his detention was puzzling,” said Gonese.

9. Bornwell Chakaodza, the Editor of The Standard, Entertainment Editor Fungai
Kanyuchi and reporter Farai Mutsaka were arrested on 15 May 2002 on allegations of contravening the Access to Information and Protection of Privacy Act. They appeared before a Harare Magistrate on 17 May 2002, that remanded them out of custody to June 3 2002 on $10 000 bail each. They were also ordered to report once every two weeks at the Central Investigation Department’s Law and Order Section. Roseline Zigomo of Atherstone and Cook represented them. The charge arose from the lead story on 12 May 2002 alleging that government had bought state-of-the-art military equipment and anti-riot gear to crush anti-government demonstrations. The other charge arose from a story in the same issue alleging that prostitutes in Harare’s Avenues area were engaged in “sex-for-freedom deals” with the police. The State alleges that the Editor did not verify the facts before publishing the story.

10. Assel Gwekerere, a reporter and Aaron Ufumeli a photographer for the daily News
Were arrested on Tuesday 7 May in Harare. The journalists were handcuffed by the police outside a city hotel in Harare whilst taking photographs of a man suspected to be involved in a multi million-dollar scandal according to the report. It is alleged that the police had set a trap against the man. The police thought the two journalists were working in cahoots with the suspected man that led to their being arrested. Ufumeli told MISA-Zimbabwe today (15 May 2002) that the police thought they were working in cahoots with the suspected man because of their timeous arrival at the scene of the incident and because coincidentally the vehicle they were using was just behind that of the conman. Ufumeli said the police refused to listen when they identified themselves as journalists, at the scene of the incident.
“They said they would only entertain statements upon arrival at the police station,” Ufumeli said.
The two were handcuffed and shoved into a police vehicle together with the suspect and taken to Highlands Police Station where they were questioned separately and released later without any charges. The photographer, Ufumeli was told to destroy the pictures he had taken at the scene of the incident as a condition for their release.
Ufumeli told MISA-Zimbabwe that the detectives told him that they did not want their pictures to be seen in the Daily News.

11. Bornwell Chakaodza the Editor of The Standard and his senior reporter Farai
Mutsaka, were arrested on 23 May for the third and second time respectively, in a space
Of two weeks. The two were charged of having written a false story over
“Impeding” personnel changes at the state run Newspaper Company, Zimpapers and the
National broadcaster, the Zimbabwe Broadcasting Corporation (ZBC). Chakaodza and
Mutsaka were briefly detained at the Harare Central police station where they were
Questioned and released. The Standard issue on 12 may, wrote that Information Minister
Jonathan Moyo was contemplating making editorial changes to the state run newspaper
Group, Zimpapers and the ZBC. The story alleged that new appointment would be made
According to Moyo’s preferences. Moyo dismissed the story as false the following day
And accused the paper of deliberately lying. The Two were charged under section 80 of
The Access to Information and Protection of Privacy Act. The lawyer for the two
Journalists, Linda Cook from Atherstone and Cook said the police recorded a warned and
Cautioned statement in her presence.

12. The editor of the private weekly Sunday paper, The Standard, Bornwell Chakaodza a
And his entertainment editor Fungayi Kanyuchi were arrested on 21 May and questioned
by the police over picture captions that appeared in the papers issue of 12 May. The
pictures accompanied an alleged story of police misconduct, under the headline, “Police
in sex for freedom deals.”
The picture, which showed a “female sex commercial worker”, was in colour and revealed her buttocks that were clad in a white G-string.
The Herald reports that chief police spokesman; Assistant Commissioner Wayne Bvudzijena confirmed that the two journalists had been questioned at Harare Central Police Station and that they were going to be charged under the Censorship Act and were likely to appear before a magistrates court toady (22 May). The lawyer representing the journalists, Linda Cook of Atherstone and Cook said that Kanyuchi and Chakaodza denied the charge of contravening section 13 (1) (a) of the Censorship and Entertainment Control Act.

13. The editor of the, The Standard, Bornwell Chakaodza was arrested
on 28 May, his fifth arrest in three weeks. Chakaodza was arrested together
with his Entertainment editor, Fungayi Kanyuchi on allegations of having
written falsehoods. Kanyuchi's arrest is the third in three weeks as well.
The two were arrested in connection with an article that appeared in the
paper on 26 May, which criticized the manner in which the Zimbabwe
Republic Police handled journalists. The article was titled "The private media's
burden". In the article Kanyuchi pointed out that the police enjoy harassing
journalists, take orders from "above" and follow directives that they do
not even understand themselves. The story was partly a narration of his
experience in the police cells when he was arrested for allegedly writing
falsehoods in contravention of section 80 of the Access to Information and
Protection of Privacy Act. The two signed warned and cautioned statements in the presence of their lawyer, Linda Cook of Atherstone and Cook and were released immediately afterwards.
14. Iden Wetherell the Editor of the weekly Zimbabwe Independent was called by the Police on Thursday 30 May, for questioning over the picture of a semi naked Amazonian man in his traditional attire, that appeared in the papers issue of 17 May 2002. Wetherell was Subsequently charged under the Censorship Act for publishing what the police called naked pictures. Wetherell’s lawyer, Linda Cook said that the charges against her client are unsustainable since no consent was given by the Attorney General’s Office as required by the Act. She also said that the concerned picture is not obscene at all and that the if the police insists on pursuing the matter they would have to go by way Of summons.

4. Analysis of Section 80 of the Access to Information and Protection of Privacy Act

Section 80 of the Access to Information and Protection of Privacy Act falls under what is termed “Abuse of Journalistic Privilege” in the Act. This clause provides for the punishments, both monetary and jail sentences that can be preferred on journalists who would have “abused their privilege” by writing falsehoods and fabricating information. As has been noted above almost all the journalists who have been arrested have been charged under this Clause.

Section 80 reads that:

Abuse of Journalistic privilege
(1) A journalist shall be deemed to have abused his journalistic privilege and committed an offence if he does the following—
(a) Falsifies or fabricates information;
(b) Publishes falsehoods;
(c) Except where he is a freelance journalist, collects and disseminates information on behalf of a person other than the mass media service that employs him without the permission of his employer;
(d) Contravenes any of the provisions of this Act.
(2) A person who contravenes subparagraphs (a) to (d) of subsection (1) shall be guilty of an offence and liable to a fine not exceeding $100,000 or to imprisonment for a period not exceeding two years.

It must be noted that freedom of expression is constitutionally guaranteed in Zimbabwe and what clause 80 seeks to do is to make it (Freedom of expression) a privilege and not a right. It is therefore unconstitutional for the Act and the law enforcement agencies to confer “privilege” status to what is essentially a right. Furthermore the punishment is hefty and will inhibit journalists in the exercise of freedom of expression as has already been seen through the number of arrests, legal costs and psychological torture that takes its toll on journalists.

The clause makes it difficult for a media practitioner to determine his conduct in light of the contradictions and uncertainties in the whole Act. Faced with such law journalists will be forced to steer clear of controvesional issues for fear of violating the law. Critical debate will be affected by the punishment that awaits a person who abuses “journalistic privilege”.
Clause 80 establishes offences, which will be deemed to be an abuse of journalist privilege. In terms of this section it is criminal to publish falsehoods, falsify information, collect information for persons who are not the employer of the individual, and most important of all, it is an offence to breach any section of the Access to Information Act. The practice of journalism is rendered criminal. As mentioned above it must be stated that the section is unconstitutional, in that it violates section 20 of the Constitution.
Subsection (1)(a) states that it is an offence to falsify or fabricate information, and subsection (1)(b) states that it is an offence to publish falsehoods. There is no distinction between the two sections, as both refer to the same thing, which is the publication of information that is not “true.” The issue is one of truth! The criminalizing of the failure to report accurately places an unreasonable hindrance of freedom of expression as guaranteed in section 20(1) of the Constitution.

As to the publication of false information, the very limited circumstances in which that can be made an offence have been stated by our Supreme Court in the case of Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S).

“Often the line between fact and opinion is blurred.” The major problem with the restriction lies with the difficulty with defining expression, words and terms. The Supreme Court struck down section 50(2) of the Law and Order Act, which criminalized the publication of false statements. And the Supreme Court stated that:
“The use of the word ‘false’ is wide enough to embrace a statement. rumour or report which is merely incorrect or inaccurate, as well as a blatant lie…”
And as a result of the slipperiness of interpretation, “what is overlooked in the criminalisation of false statements is that language is used in a variety of complex and subtle ways. It is simply not possible to divide statements into categories of fact and opinion. Rhetorical devices, figures of speech, comedy, metaphor and sarcasm are all examples of superficially false statements which either may be substantially correct or be expressions of opinion.”
In any event, the excesses of the media “and most important, the consequences of failure to prove truth are civil damages, not the rigorous sanction of criminal conviction and imprisonment.”
The Supreme Court in the case of Chavunduka (Supra) accepted that the criminalisation of the publication of statements, deemed to be false, is unconstitutional. This is because language is imprecise, and interpretation of term and phrase is rendered subjective as a result. Section 80(1)(a) “…is potentially applicable to a very wide range of published work and effectively allocates a wide discretion to authorities in deciding when and where to prosecute. It is also difficult for citizens to know with any degree of certainty whether there are conforming to its requirements. Were this provision to be actively applied, it would exert a significant chilling effect on freedom of expression.”
There is no doubt that the government simply re-introduced legislation that it knows was declared unconstitutional by the Supreme Court.
Subsection (1)(d) prohibits any journalist from breaching any section of the Access to Information Act, on pain of criminal sanction. This means for instance that if journalist publishes information that relates to national government information without official clearance from the government officials, that constitutes a breach punishable in terms of section 80 by up to two years imprisonment. It also means that if a journalist obtains information from a public body but without disclosing to the head that he is a journalist intending to obtain information, the publication of the information constitutes an offence.
END

For more information, clarification and/or comments contact
Rashweat Mukundu
Research and Information Officer MISA-Zimbabwe
221 Fife Ave
Harare
Zimbabwe
Phone 00 263 4 721 841, 735 441/2
Cell 011 602 685
E-mail [email protected]