Registration of Mass Media Service Providers: An opinion
By T. Hondora
June 12, 2002

© Tawanda Hondora 2002

This is an opinion on a matter critical, to the mass media industry, media freedom, and the development of democracy in Zimbabwe. A law regulating the mass media service industry, called the Access to Information and Protection of Privacy Act [Chapter 10:27] (referred to as AIPPA) was promulgated and became law on the 14 March 2002. Under AIPPA, mass media service providers are now required to obtain a certificate of registration from the Media and Information Commission, created in terms of Part VII of AIPPA. Partly as a result of AIPPA’s oppressiveness, but perhaps mainly due to the fact that prior to 14 March 2002, the mass media service industry was not specifically regulated, the promulgation of the law has occasioned much consternation.

1.  General
An opinion is provided on two issues:
1.1.	whether mass media service providers should register with the Commission in compliance with section 66 of AIPPA; and
1.2.	whether, section 66 of AIPPA, referred to above, is constitutional. 

2. Should Mass Media Service Providers Register?
2.1.	 Since the promulgation of AIPPA the Commission has not registered any mass media service provider. The non-registration is partly because most of the stakeholders in the media industry were surprisingly unaware of the requirements of section 66 of AIPPA. The Minister of Information and Publicity in the President’s Office, being the one responsible for the administration of AIPPA, is however the primary cause why none of the mass media service providers has been registered. He is yet to prescribe the necessary form and manner of application for registration, including the registration fee. Refer to sections 66(2) and 70 respectively. 
2.2.	All mass media service providers that were operational on the 14 March 2002 were deemed registered for a further period of three months, after which they became obliged to apply for the registration of their mass media organizations. Refer to section 93 of AIPPA. 

Date When Registration Must Be Effected
2.3.	Three months ordinarily reckoned and calculated from the 14 March 2002, terminates on the 13 June 2002. However the Interpretation Act [Chapter 1:01] in section 33 states that: “In an enactment…a reference to a month shall be construed as a reference to a calendar month.” Refer to section 33(6)(c). AIPPA commenced on the 14th March 2002. Therefore three months is reckoned from the 1st of April 2002, terminating on the 30 June 2002.The question to be answered therefore is: whether in the remaining two weeks mass media service providers should apply to the Commission seeking registration.

Registration Facility Unavailable
2.4.	This taxing issue may very easily be disposed of on the basis that the Minister has not set the form and manner of application and the registration fee is still unknown. Section 66 and other corollary sections of AIPPA are therefore impossible to comply with. 

Commercial Interests
2.5.	In addition it would be imprudent to give general advice to the mass media on whether or not they should obtain a certificate of registration from the Commission. There are various competing interests that influence individual shareholders in mass media service companies, and these do not necessarily coincide with the desire to uphold the principle of media freedom. 
2.6.	There will be organizations that will find the registration requirement perfectly legitimate. Others will argue that confrontation with the law is disastrous for profits. Still more, non-registration in protest, buttressed by a Constitutional Court application for the striking out of section 66 of AIPPA, will not result in the immediate repeal/suspension of the registration requirement. Therefore is may be argued that it would be prudent to register and thereafter, seek the nullification of the requirement. This cautious approach would be influenced, no doubt, by recent judgments emanating from the Supreme Court.
2.7.	Therefore, while it is desirable to have unity of purpose on this matter, the decision to seek registration is organization specific, and would have to be made by individual organizations after seeking legal advice. It should be noted however the facility of registration is currently unavailable, even to die hard conformists.
2.8.	Due to the urgency of the issue of registration, and the fact that it is improbable that mass media company shareholders will commit commercial suicide by not registering, it is suggested that media companies should apply for registration, when the Minister prescribes the necessary structure. Those organizations that seek to challenge the legitimacy of section 66 are better advised to do it through the medium of their professional associations, to avoid victimization.
2.9.	The failure to prescribe the form and manner of application and the registration fee may actually be deliberate on the part of the Minister. The Minister’s actions will simply cause panic, and uncertainty in the mass media service industry. In addition, the delay simply results in insufficient, if any time, available to mass media service providers to challenge the requirement, without being obliged to register first. Whatever the reason for the delay in prescribing the registration form and fees, its consequences are prejudicial to the interests of mass media service providers. All mass media service companies that do not wish to be summarily closed down have to register first, and then if so advised challenge the requirement later.

Definition of Mass Media Service Provider
3.1.	Mass media service providers are defined as including “any service or media consisting in the transmission of voice, visual, data or textual messages to an unlimited number of persons, and includes an advertising agency, publisher or, except as otherwise excluded, or specially provided for in this Act, a news agency or broadcasting licensee as defined in the Broadcasting Act…”
Refer to section 2 of AIPPA, the interpretation section.
Therefore loosely defined, a mass media service provider is a disseminator of voice visual or textual messages, to an unlimited number of people. A person that disseminates voice, visual or textual messages to a limited number of persons does not qualify to be described as a mass media service provider, and therefore is not required to seek registration under section 66 of AIPPA. Persons that are contracted to produce materials used in the dissemination of voice, visual, data or textual messages are not mass media service providers. An example would be production companies, both film and audio. 
 
4.         Unconstitutionality of Section 66 of AIPPA
4.1.	In the opinion of the writer, section 66 of AIPPA violates freedom of expression, which is enshrined in section 20 of the Constitution. Freedom of expression is defined as the “…freedom to hold opinions and to receive and impart ideas and information without interference, and the freedom from interference with correspondence.”
4.2.	It is commonly accepted that it is through the media; both print and electronic that freedom of expression is exercised in the modern world. 
 “…it is the mass media that makes the exercise of freedom of expression a reality.”

5.  Section 66 of AIPPA is Ultra-vires Section 20(2) of the Constitution
5.1.	After 13 June 2002, the operation of a mass media service without a certificate of registration will constitute an offence, punishable by a fine of $300 000.00 or to a term of imprisonment of two years or to both such fine and imprisonment. Refer to section 72 of AIPPA. Put differently, registration is a prerequisite to the commencement of operations of mass media service providers. It may not be seriously disputed that registration, coupled as it is with criminal sanction, constitutes a “…hindrance in the enjoyment of …freedom of expression”. Without registration mass media companies will be unable to legally operate and the public will be unable to obtain access to their preferred press. Registration is not just a mere formality, but is a precondition to exercising freedom of expression.
5.2.	Section 20 of the Constitution outlaws any hindrances placed on freedom of expression except on the grounds expressly stated in subsection (2) of section 20. Section 20(2) may be regarded as the enabling section for all limitations on freedom of expression. The Supreme Court has held that:
“It is clear that limitations on freedom of expression which do not serve one of the legitimate six aims or exceptions listed in section 20(2) of the Constitution are not legitimate”
Compulsory registration of mass media service providers is not provided for, or envisaged and cannot be justified in terms of any of the provisions of section 20(2) of the Constitution. 
The registration requirement is therefore ultra-vires the section 20(2) of the Constitution.
6.        Registration Process is Inherently Compromised
6.1.	Assuming without conceding that section 66 is not ultra-vires section 20 of the Constitution, it is further contended that the requirement of registration as provided for in AIPPA is not reasonably justifiable in a democratic society. Mind boggling as it may sound, there exists a good chance that the state may argue, as has been argued already, that the registration requirement is necessary in the interests of defence and/or public order. AIPPA has been justified on the need to control the perceived excesses of the print media. Countless times the private press has been attacked and vilified on the flimsy and unsubstantiated allegation of being enemies of the State, and of belonging to the “imperialist West”. Using this logic one can clearly envisage a defence by the government, that the media is a potent weapon of influencing thought and expression, therefore in the interest of defence and/or public order, the State must create an institution through which the media will be made accountable. Registration allows the State to control the media generally, and conversely permits it to deregister perceived “miscreants”. It has been suggested that technical registration requirements for mass media service providers is not, per se, a breach of section 20 of the Constitution.
6.2.	It is contended, however that justification of the AIPPA on the basis of the maintenance of public order or in the interests of defence is not sustainable. In order for this argument to hold, the power to control the excesses of the print media must be intimately related to the objective of maintaining public order and in the interests of defence. Simply put, if it is accepted that AIPPA’s objective is to give the government control of the media, in the interests of defence or public order, and that this is achieved through the registration mechanism created in terms of section 66, the power to deregister must be strictly confined to those instances where interests of defence or public safety would have been offended by a mass media service provider. 
6.3.	Section 71 of AIPPA states the instances upon which the Commission may cancel a mass media service provider’s certificate of registration. None of the grounds stated relate to breaches or threats to the interests of defence or public order. It is beyond question therefore that other reasons other than the interests of defence or public order gave rise to government’s desire to control perceived threats from the media.
7.1.	 Assuming, without conceding that the registration requirement finds basis in one or other provision of section 20(2) of the Constitution, it is further contended that the Media and Information Commission is a politically compromised body and this makes the registration requirement unconstitutional. In order to operate and mass media service companies are forced to register with a body that is inherently compromised. The composition of the Commission exposes mass media service industry players to the hazard of political considerations being used to deny them registration. The Minister of Information is a cabinet member, who is authorized in consultation with his superior, the President, to appoint members of the Commission. But it should be noted that the government is also a player in the mass media service industry. Therefore one of the competitors, which, is government, has the advantage of making and enforcing rules governing the industry, in a sensitive area, such as the media and freedom of expression.  The Commission is the one that is obliged to register mass media service providers. Refer to section 39(1)(p) of AIPPA.  
7.1.1.	The Minister appoints the Commission after consultation with the President. There is no requirement that the appointment process must be open and transparent, and members have very little protection against dismissal, which can be on subjective grounds. In terms of section 40 of AIPPA, ministerial appointees constitute the majority in the Commission. Members of the Commission enjoy tenure of office at the instance of the Minister. Members of the Commission may be dismissed at the instance of the Minister, if in the opinion of the Minister; the member had conducted himself in a manner that renders him unsuitable to continue employment as a member. 
7.1.2.	The Minister has the power and authority to discipline, suspend and terminate the employ of Board members, absolutely in his discretion. Refer to the Fourth Schedule.
7.2.	The Commission is not therefore immune from political influence and control. Being a regulatory authority “…it is imperative that such an authority should be independent …The airways/frequencies…are universally regarded as public property. In this area, a government is a trustee for the public: its right and duty is to provide an independent statutory authority to safeguard the interests of the People in the exercise of their fundamental rights: No more no less. Otherwise the freedoms of thought and speech, including the right to information would be placed in jeopardy.”
7.3.	The African Commission on Human and Peoples’ Rights noted that:
“Of more concern is the total discretion and finality of the decision of the registration board, which effectively gives the government the power to prohibit publication of any newspaper or magazines which they choose. This invites censorship and seriously endangers the rights of the public to receive information, protected by Article 9.1. There has thus been a violation of Article 9.1[guaranteeing the right to receive information]
7.4.	The Sri Lankan Supreme Court stated:
“Having regard to the composition of the Board of Directors of the Authority, the lack of security of tenure in office either of the Chairman or of the appointed members, and having regard to the power of the Minister to give directions which the authority is obliged to follow, the Authority…lacks the independence required of a body entrusted with the regulation of the electronic media which, it is acknowledged on all hands, is the most potent means of influencing thought” This statement is of equal application to the print media as it is to the electronic media.    
7.5.	A law that permits political considerations to restrict the exercise of freedom of expression is at least, ultra-vires section 20 of the Constitution, or will be considered not to be reasonably justifiable in a democratic society.

8.	Is the Limitation Upon freedom of Expression, mandated under Section 66 of the Act Reasonably Justifiable in a Democratic Society?
8.1.	Put differently; is the requirement that all mass media service providers must register through the Commission, as a prerequisite to operating, reasonably justifiable in a democratic society? Submitting without conceding that registration is not in itself unconstitutional, it is contended that the requirement of registration through a politically compromised body violates freedom of expression. The Supreme Court adopted a three-tier test in the determination of whether a restriction on freedom of expression is one that is reasonably justifiable in a democratic society. Refer to Nyambirai v NSSA.
8.2.	 The test is whether:
8.2.1.	The legislative objective which the limitation is designed to promote is sufficiently important to warrant overriding a fundamental right;
8.2.2.	The measures designed to meet the legislative objective are rationally connected to it and are not arbitrary, unfair or based on irrational considerations;
8.2.3.	The means used to impair the right or freedom is no more than is necessary to accomplish the objective.

9.	Is the Legislative Objective Sufficiently Important?
9.1.	What is the State’s objective in requiring mass media service providers to register? It is arguable that the aim and purpose of registration is to allow the government to control the activities of the print media, and to take disciplinary action in the event of “irresponsible media coverage” with the potential to adversely impact on either public safety or public order. This statement obviously comes in the wake of the many public attacks on the private media by the government, just on this basis and the Minister of Information’s justification when introducing the media bill in parliament.
9.2.	It should be noted that the Act itself does not state the aspect of control as the primary reason for its promulgation. Instead, the title and preamble are misleading: they refer to access to information and protection of privacy. An analysis of the Act reveals that it is based on the wrong premise that section 20 of the Constitution does not extend to the individual the right of access to information. The Supreme Court has already pronounced on this issue, it said: “But self-expression by the communicator is not the single value encompassed by s 20(1) of the Constitution. One of its functions is to protect the obtaining of information and the interchange of ideas. Any dissemination thereof and consequently, any expenditure of funds that makes it possible, advances the purposes of this freedom.”[Emphasis added] By “obtaining information”, Gubbay CJ was no doubt referring to the public and/or the individual’s right of access to information. Since the government must be taken to be aware of this position, the promulgation of AIPPA must have been occasioned by some other sinister motive other than the desire to extend rights to the individual.
9.3.	Registration provides the government with immediate and effective means of dealing with perceived miscreants, through the option of deregistration, and other stipulated penalties.
9.4.	Notwithstanding that this argument is extremely tenuous, it may actually be accepted as justification for requiring mass media service providers to register.  

8.  Are Measures Provided, Rationally Connected to the Objective?
8.1.	If accepted that the objective is to control the excesses of the print media, the measure designed to meet this objective is the system of registration, managed through the Commission, and the various disciplinary and other power, reposed in it.
8.2.	The measures identified to meet the objective of controlling the media are not rationally connected to it. There has been no suggestion, to date, that the judicial system in Zimbabwe has failed to adequately deter the media from conduct likely to adversely impact on the interests of defence, or safety of the public. In addition, the system of civil damages has been used to redress the sins of the media, as opposed to criminal sanction, or the threat of preventing media companies from operating. The registration framework created under the Act is inherently flawed. The Commission is not and cannot be independent of ministerial influence and control. This is due to the process of appointment, and security of tenure of office, which is virtually dependent on the Minister of Information. Further the Minister has power to issue orders, which the Commission has to obey. 
8.3.	While the government enjoys power of creating and sustaining the Commission, (i.e. the registration and regulatory authority) it should be noted that the government is a competitor in the mass media service industry. The measures designed to meet the objective are not rationally connected to it, as they give the government an unfair advantage over the other competitors. Since the government is a competitor in the industry, the measures designed should have created an independent regulatory structure as opposed to one that is politically compromised. The means designed are therefore arbitrary, unfair and are based on unreasonable considerations.
8.4.	Further, and in any event, the measure designed is more than necessary to achieve this objective. Mass media service providers have been adequately controlled through the regime of civil damages, and other common law sanctions. The use of a politically compromised registration regime cannot be remotely suggested as justification of the “regulation system.”
8.5.	It is contended therefore, that the regulation system created cannot be reasonably justifiable in a democratic society, as is therefore an unconstitutional limitation of freedom of expression.

9.  Does Section 66 of AIPPA Constitute Law?
9.1.	In the analysis of legislation to determine its constitutionality, and in particular compliance with the bill of rights, the following questions are often asked:
9.1.1.	Does the provision constitute law? Limitations on basic rights must be “provided by law.” Refer to the limitation provisions of any of the sections of the Bill of Rights contained in the Zimbabwean Constitution, and in particular to section 20(2). 
9.1.2.	If a restriction on a basic right or freedom is “provided by law”, then the second question is; is the law intra-vires the exceptions section of the particular constitutionally protected right? In constitutional jurisprudence, the derogation/exceptions/limitation section of a right/freedom is often regarded as the enabling section for any limitations on the basic right. Therefore if the derogation section does not envisage or provide for the limitation, any such limitation will be considered to be unconstitutional, on the basis that it would be ultra-vires the enabling section of the Constitution.
9.1.3.	Again, if the restricting law is “intra-vires” the enabling section of the Constitution, then the enactment is placed under further scrutiny by asking; whether the restriction is one that is reasonably justifiable in a democratic society, according to the three-tier test first adopted in Zimbabwe in Nyambirai versus NSSA (supra). 
10.1.	A third ground of attack on the issue of the legality of section 66 is that the section does not meet the strict requirements of being “law.” Section 66 prohibits a “mass media owner” from operating without registration, and consequently obliges the “mass media owner” to apply for the certificate of registration certificate. A mass media service owner is defined in the following manner: “in the case of a mass media service company, the person who holds a controlling interest in the company; or in the case of a mass media service that is not a company, the person who owns or co-owns the service.” Refer to section 2 of the AIPPA, the definitions section.
10.2.	The definition of “mass media owner” is vague and imprecise. The definition raises more questions than answers about the identity of the person that is obliged, to apply for a registration certificate, in order for a mass media service company to obtain authorization to operate. 
(a) Is the personality of the person that is deemed to be the owner extended to a corporate/juristic person?
(b) What if the company does not have one shareholder that has a “controlling interest”. Does this mean that the Company’s application for registration will be disallowed on the basis that it does not have an “owner” as defined in AIPPA?
(c) If the mass media service is not a company, the owner is any person who owns or co-owns the service! Does this mean that all co-owners in an unregistered mass media organization are owners, BUT minority shareholders in a registered company are not classified as owners?
(d) If all the shareholders in a mass media service providers are corporate entities; who then is the authorized person that should apply for registration as required by section 66 of AIPPA? 
(d) Section 66(2) specifically mentions that the owner of the mass media service must apply to the Commission in the form and manner prescribed. The section deliberately does not mention that an agent of the owner/company may apply for registration. Does this mean therefore that no application for registration will be entertained if filed by a representative?
(e) In the event that applications filed by representatives will not be entertained: does this mean that mass media companies in which the majority controlling shares are held by another corporate person, the majority shareholder of that other corporate person should apply in person for the registration of the mass media service company, being the “owner”? What about the other minority co-owners?
11.1.	Some of the questions raised above may be answered by reference to the Interpretation Act [Chapter 1:01]. Section 2 thereof states that in every Act reference to “person” includes “any company incorporated or registered as such under an enactment; or any body of persons, corporate or unincorporated; or any local or similar authority.” In essence therefore the definition of the “person” referred to, both in section 2 and 66 of AIPPA, is extended to include a juristic person.
11.2.	A reading of the definition of “mass media owner” gives the distinct impression that the drafters of AIPPA were of the mind that “person “ is only limited to natural persons.
12.1.	The objective behind the stipulation that the majority shareholder must apply for registration is obvious. It emanates from a desire to identify the person that controls editorial policy and other issues relating to the particular mass media service provider. This comes from the wisdom gained from governments of old, that: “ If we want to know whether we can trust a newspaper, we do not listen to the editor’s protestations of disinterestedness, his claim to be the living embodiment of all the loftiest ideals: we track down the owner, trace all his other interests and activities and affiliations.” And that “…political views expressed by a national newspaper are those of the proprietor.”
12.2.	The requirement to register constitutes a hindrance on freedom of expression. Refer above. The added requirement that those that lawfully incorporate companies under the Companies Act, and use the concept of limited liability and corporate identity to transact business, must reveal their identities, equally violates freedom of expression, both in itself and in effect. This is particularly the case where one owner is difficult if not impossible to identify.

What Constitutes Law?
13.1.	 It is accepted dictum now, that “…law cannot be vague, and totally discretionary; it must be ascertainable and understandable. Any limits placed on freedom of expression cannot be left to the whim of an official; such limits must be articulated with some precision or they cannot be considered to be law”
13.2.	  In Zimbabwe the Supreme Court has held that: “It is crucial…that the law must be accessible and formulated with sufficient precision to enable a person to regulate his conduct. He or she must know, with reasonable certainty, what the law is and what actions are in danger of breaching the law.”
13.3.	In the United States in a case whose dictum was adopted in the Chavunduka case (supra) it has been held that: “…a statute which forbids or requires the doing of an act in terms so vague that men of common intelligence guess at its meaning and differ as to its application, violates the first essential of due process of law”
13.4.	The definition of the person (i.e. the owner) that is obliged to apply for the registration of mass media service providers is too imprecise, impractical in some respects, and susceptible of too wide an interpretation. It places in doubt the identification process of what constitutes an owner, often confusing majority shareholding and ownership, ignoring for incorporated companies co-owners, but recognizing them in unincorporated entities. It places in doubt what can lawfully be done and what cannot. As a result it exerts a chilling effect on freedom of expression, since persons will not invest in the print media in order to stay clear of the danger of undue pressure on the majority shareholder, and the possibility of minority shareholders interests being jeopardized due to the legal perception that the majority shareholder is the “owner.” If the majority shareholder is denied permission to register, this automatically means that the minority shareholders right to invest in the print media, and freedom of expression would have been violated. In addition, there exists the danger of non-registration of mass media service providers if the majority shareholder is a company or cannot be easily identified, due to a complex corporate status.
13.5.	Since the definition of owner is insufficiently precise to demonstrate the parameters of identity, attendant risk, and provide guidance to persons of ordinary intelligence, the requirement that the owner submits the application for registration fails to meet the requirement of being “under the authority of any law” 
13.6.	On this basis therefore section 66 would be considered to be ultra-vires section 20(1) of the Constitution.

14.     URGENCY
14.1.	Is the constitutionality of AIPPA, a matter that should be expeditiously challenged in the Supreme Court as an urgent constitutional application? The registration regime created under the Act is repressive and threatens media freedom, the plurality of information and the development of democracy in Zimbabwe. On this basis alone the registration requirement must be struck out.
14.2.	Is it possible to apply to the Supreme Court for an order staying the use of section 66 of AIPPA, and simultaneously interdicting the Minister of Information from using the same section and summarily closing down the operations of unregistered mass media service providers? The interdict would allow those mass media service providers questioning the validity of the requirement time to file objection papers.
14.3.	It is my considered opinion that this is the pragmatic approach. This would mean that those mass media companies that file the constitutional petition will not be out alone in the cold, during the period when the case determining the legality of the requirement is pending in the Supreme Court. In addition, if all the mass media service providers are not registered, there are many adverse sections of AIPPA, most of which relate to the disciplining of mass media service companies, that will be rendered unoperational. In addition, the time gained by such an approach permits the application of an omni-bus petition against the whole of AIPPA on the basis that it unduly restricts freedom of expression.
14.4.	The following, it is suggested are grounds that may be relied upon as justification for urgency: that
15.1.	The Supreme Court in a prior application by foreign correspondent journalists threw out a similar application on the basis that it was not urgent. It should be submitted with respect that the court misdirected itself, and that the urgency has been occasioned in no small measure by that dismissal. The Minister of Information will no doubt agree that all mass media service providers are obliged in terms of section 93 to register with the Commission by the 13 June 2002, and that this is a factor which, the Supreme Court had not earlier properly taken into account.
15.1.1.	A very strong case, and not just a prima facie case, vis-à-vis the unconstitutionality of section 66 would have to be made. 
15.1.2.	In addition, the affidavit filed in the foreign correspondence journalists petition to the Supreme Court must be used as evidence on the point of three months requirement. It was reported in the newspapers [the government mouth-piece] that the Minister had said that all journalists and media houses were deemed registered until end of the 2002.
15.1.3.	It is also suggested that the oppressiveness of AIPPA must be alluded to, but under no circumstances should an attempt to have these sections struck out in the particular application. Such an attempt may be used to delay the finalization of the petition. Issues such as the non-independence of the Commission, the disciplinary powers of the Commission, the banning of reporting on government records and information, the fact that AIPPA is based on a false premise that no right of access to information is extended by section 20 of the Constitution, that no real right to privacy is granted by the Act, and other others should be raised to highlight the dangers of permitting use of the Act until the issue of registration is finalized.

16.  CONCLUSION
16.1.	This matter raises a fundamental issue of media freedom and plurality of information, views and opinions in Zimbabwe. The power that is exercised by the Commission over the media industry is such that even if mass media companies register, the regime created is oppressive. The politically compromised Commission exercises disciplinary power over mass media stakeholders. 
16.2.	The fear that litigation particularly in the Supreme Court may be futile, though not ill placed, ignores the limits of manipulation of legal rules and principles. It is advised that the various associations representing the various mass media companies must petition the Supreme Court for the striking out of section 66 of AIPPA. Such an approach insulates the individual mass media companies from potential victimization by the authorities. Napoleon once said: Four hostile newspapers are to be feared than a thousand bayonets.