ONE thorny issue that pops up whenever there is discourse on legal and political reforms in Zimbabwe has been the need to make wholesome changes to the Access to Information and Protection of Privacy Act (Aippa).
guest column: Nigel Nyamutumbu
This contentious law, which was enacted at the height of political polarisation in Zimbabwe in 2002 and amended in subsequent years, has been tabled as a topical issue for discussion by the executive and legislative arms of government.
In outlining the agenda for the Ninth Parliament of Zimbabwe, President Emmerson Mnangagwa, by inference, noted that there will be changes to Aippa by proposing a Zimbabwe Media Commission (ZMC) Bill.
The ZMC, which was previously known as the Media and Information Commission (MIC), was firstly established under the amended Aippa in 2008. In 2013, the ZMC was included among other independent commissions in the new Constitution.
Therefore, by proposing a ZMC Bill the President all, but authored an epitaph for the now archaic legislation.
Beyond recognising that Aippa should never have been a part of our statutes in the first place, this submission will outline some of the reasons why the law needs wholesome changes that precisely equate to repealing the law.
Most of the arguments for repealing Aippa will be premised on a model access to information law developed by the Media Institute for Southern Africa (Misa - Zimbabwe) in 2006.
The model law provides a basis at which both State and non-State actors can begin critical discourse on a democratic access to information law.
Zimbabwe’s supreme law recognises that there is no legislation that gives effect to the enjoyment of the right to information.
Section 62 (5) states that “legislation must be passed to give effect to this right, but may restrict access to information in the interests of defence, public security or professional, confidentiality, that is reasonable in a democratic society”.
While proponents of Aippa claim that this particular provision is a standard clause, which does not necessarily mean there is no legislation to give effect to the right to information, the counter argument has always been that the supreme law would have recognised the particular legislation.
Be that as it may, the greater debate should be centred on whether Aippa passes the test of a law that gives effect to the full enjoyment of rights to access information, free expression and media freedom.
There is to a great extent consensus that there are inadequacies within Aippa that inhibit citizens’ right to access information.
As such, rather than trying to improve the condemned legislation, it is better to be futuristic and adopt a new access to information law. On that account, Aippa must be repealed. Distinguishing the right to information and to privacy with media regulation, the model law developed by Misa Zimbabwe, proposes that the new law be termed the Access to Information Act.
This will certainly be one way of dealing with how Aippa tries to conflate three distinct rights and practices in one law.
While the right to privacy is as equally important as that of accessing information, the attempt to use privacy as a claw back to the enjoyment of the right to information is one shortcoming of Aippa.
By the same measure, attempting within the same law to regulate the media, which ordinarily should be treated as a professional industry with potential to organise and regulate itself, is another weakness of Aippa.
Zimbabwe needs an access to information law that specifically promotes and protects the enjoyment of this right. Aippa assumes that this right can only be accessed through the media and should therefore be repealed.
Sections 3 and 4 of the model law developed by Misa outlining the objectives and guiding principles of the proposed Act categorically emphasises that the right to access information is for every citizen. One of the arguments that have been put forward in discussing Aippa has been that journalists have not tested the law or attempted to use the law in seeking for information.
Yes, access to information is a journalistic right and given the nature of the profession there would be more demand for information by the media.
However, not every citizen would require information for journalistic purposes. Citizens require information for different purposes and, therefore, their rights should not be determined or exercised at the pleasure of those operating in mainstream media. As such Aippa must be repealed.
Another reason why Aippa does not pass as a democratic access to information law is that it restricts the enjoyment of the right to information held by the State. This is not in sync with the Constitution. The supreme law extends this right to private bodies with information in the public interest.
Sections 5-7 of the Misa model law define public bodies and private bodies and how citizens can lodge requests for information.
Citizens’ right to information are not limited to the State and for that reason, Aippa must be repealed.
Aippa assumes that every citizen can define what public interest actually entails seeing that the law does not set parameters or clear definitions of key terms.
On the contrary, the Misa model law uses the African Commission on Human and Peoples Rights (ACHPR) adopted definitions.
Without clear definitions, Aippa can be abused and citizens denied information on the basis of ambiguous terms such as “public interest” or “national interest”.
Aippa must, therefore, be repealed on the basis that it can be abused in denying citizens information.
Linked to the issue of definition, Aippa does not have democratic limitations as envisaged in section 62 of the Constitution that any restriction to the right to access information must be reasonable.
Sections 20-33 of the Misa model law on access to information clearly define the grounds on which there can be exemptions. These parameters, which include personal information, legal privilege or professional confidentiality are clearly outlined and defined unlike in Aippa.
In addition, unlike Aippa, the Misa model law proposes accountability measures should one feel that their right to information has unjustifiably been denied.
The model law in sections 47 and 48 outlines appeal measures that citizens can take in exercising their right to know.
A competent and democratic right to information law should outline measures that citizens can take in defence of their right. Aippa fails this test and should, therefore, be repealed.
In a healthy democracy, citizens should not ordinarily be pursuing their rights. Rather, rights should be pursuing them. The Misa model law proposes the establishment of an information commission, which will be responsible for promoting and enforcing the right to information.
One of the key functions of this commission is to periodically and proactively provide citizens with information.
The model law further proposes that all public bodies have information officers responsible for proactively providing citizens with information.
Aippa does not have oversight mechanisms and has extensive timeframes at which information can be readily available for citizens and should therefore be repealed.
Another key principle of democratic legislation on access to information pertains to the cost of accessing information.
Section 17 of the model law proposes cost measures and structures that will ensure that the right to information is not inhibited by cost. Aippa skirts over this critical matter and should thus be repealed.
For the purpose of this submission, the final point I will raise as it pertains to the need for democratic law on access to information is that of burden of proof.
Section 54 of the model law proposes that in every appeal the burden of proof is on the concerned public and private body.
Zimbabwe needs an access to information law that in addition to the above factors also incorporates how this right can be extended to persons with disabilities, illiterate people and accessing information in all the recognised languages.
Enacting such a law automatically entails repealing Aippa!
Nigel Nyamutumbu is a media development practitioner, currently serving as the Media Alliance of Zimbabwe programmes manager. He writes in his personal capacity. This article originally appeared on email@example.com a collaboration between MAZ and The Accent.