The Broadcasting Services Amendment Bill

In this bulletin we shall outline the contents of the Bill, but first we must set it in its constitutional context because the principal objective of the Bill, according to its memorandum, is to align the Broadcasting Services Act with the Constitution.

The Constitution and Freedom of Expression

Section 61 of the Constitution deals with freedom of expression and freedom of the media.  The section begins by stating the broad right to freedom of expression:

“(1)  Every person has the right to freedom of expression, which includes—

(a) freedom to seek, receive and communicate ideas and other information;

(b) freedom of artistic expression and scientific research and creativity;  and

(c) academic freedom.”

The section goes on to deal with freedom of the media, specifically broadcasting, as a sub-species of the right to freedom of expression:

“(2)  Every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists’ sources of information.

(3)  Broadcasting and other electronic media of communication have freedom of establishment, subject only to State licensing procedures that—

(a) are necessary to regulate the airwaves and other forms of signal distribution;  and

(b) are independent of control by government or by political or commercial interests.”

The rest of the section is not relevant to this bulletin.  Three points should be noted about freedom of expression generally and section 61 in particular:

·        Our courts have said several times that freedom of expression lies at the foundation of a democratic society and is one of the basic conditions for its progress

·        Everyone, including news media and broadcasters, is entitled to freedom of expression, and

·        Broadcasters must be allowed to establish themselves in Zimbabwe subject only to procedures needed to regulate scarce bandwidth.

The importance of freedom of expression has been emphasised in many international instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights – and also the African Charter on Broadcasting, which is mentioned in the Bill’s memorandum as an instrument to which the Act should be aligned.

Summary of the Bill

Against this background, we turn to the main changes the Bill will make to the Broadcasting Services Act.

Enhancing freedom of expression?

The Bill will amend section 2A of the Act, which sets out the objectives of the Act, to change the role of the Broadcasting Authority of Zimbabwe from “controlling” broadcasting service bands to “managing” them.  If this makes any real change, it is imperceptible.  In another amendment, the Bill will add a new objective for the Act, namely to develop freedom of expression by:

“providing … programming that reflects Zimbabwean attitudes, opinions, ideas, values and artistic creativity.”

This is not likely to enhance freedom of expression because reflecting existing Zimbabwean attitudes, opinions, ideas and values will not encourage the development of new ones and may shut out foreign opinions and ideas.  Similarly, the high local content quotas which the Bill will impose on broadcasters – see below – while intended to promote Zimbabwean culture and the local broadcasting industry, may limit the availability of international content and potentially hinder the growth of smaller, independent broadcasters.

Membership of the Broadcasting Authority of Zimbabwe

At present the Authority consists of 12 members appointed by the President, three of whom must be appointed from a list submitted by Parliament’s Committee on Standing Rules and Orders.  The Bill will reduce the Board to seven members, at least three of whom must be women, appointed by the President after consulting the Minister.  The parliamentary committee will have no role to play.

Comment:  The amendment seems calculated to bring the Authority more directly under the control of the President.  This is inconsistent with the African Charter on Broadcasting [link] which, in article 2 of Part 1, states:

“All formal powers in the areas of broadcast and telecommunications regulation should be exercised by public authorities which are protected against interference, particularly of a political or economic nature, by, among other things, an appointments process for members which is open, transparent, involves the participation of civil society, and is not controlled by any particular political party.”

On a more positive note, the terms of service of members and staff of the Authority will be aligned to the Public Entities Corporate Governance Act, which means appointments of senior staff will be based on merit, renewal of their contracts will depend on their performance, and they will have to declare conflicts of interest.

Foreign investment in the broadcasting sector

Section 8 of the Broadcasting Services Act prohibits the issue of broadcasting licences to individuals who are not citizens of Zimbabwe or to companies and other bodies that are not wholly controlled by citizens.  The Bill will amend the section so that foreigners may hold up to 40 per cent of the shares of companies to which licences are issued.

Comment:  Even with this relaxation, section 8 may be unconstitutional.  As we noted earlier, under section 61(3) of the Constitution the only restrictions that may be imposed on the establishment of broadcasters are those necessary to regulate the airwaves.  Cutting foreigners out of broadcasting, or even restricting their entry into broadcasting, is not regulating the airwaves.

Local content requirements for broadcasters

The Sixth Schedule to the Act currently requires television broadcasters to ensure that at least 75 per cent of their programmes consist of local or African content and material;  radio and television broadcasters with multiple channels have to ensure there is at least 30 per cent local content in each channel.

The Bill will alter this so that television sports channels will have to broadcast at least 50 per cent local content, but all other broadcasters – radio and television – will have to have 75 per cent local and African content.  The net result therefore will be to increase the local content requirement.  Although the Bill’s memorandum states that services emanating from outside Zimbabwe will be excluded from this requirement, it is by no means clear that they will be.

Public service obligations of licensees

The Bill will oblige licensees running subscription services to transmit “up to three” channels of the public broadcaster (i.e. ZBC or ZTV), at least one of which must not be encoded.  The Act currently obliges them to transmit one unencoded public broadcaster channel.

Comment:  The amendment is not entirely clear, but neither is the current provision:  do the subscription service licensees have to pay the public broadcaster for transmitting its channels?  Also, what does “up to three” mean – will a subscription service licensee comply with the new provision by transmitting just one channel?  And will a subscription service licensee be allowed to transmit more than three channels?

Community broadcasting licences

Community broadcasting licences are issued to persons who wish to cater to the interests of particular communities.  The Bill will alter the requirements for issuing these licences to ensure that members of the communities participate in the licensees’ operations and programmes and are represented on the licensees’ governing bodies.  That seems eminently sensible.

There has been no attempt however to clarify how far community licensees may venture into politics, and this needs to be sorted out.  Under para 10 of the Fifth Schedule to the Act, community broadcasting licences are issued subject to the condition that the licensees “shall not broadcast any political matter”, and “political matter” is defined in para 1 of the Schedule as “any political matter, including the policy launch of a political party”.  This definition is very wide indeed.  It could be construed, for example, as preventing a community radio station from discussing a local authority’s failure to provide adequate water to the community or to repair roads.  Community radios are currently reluctant to raise such issues for fear of breaching the conditions of their licences.

The matter could easily be settled by amending the definition of “political matter” to restrict it to partisan politics and to exclude issues of genuine local concern.  The Bill should be amended to do this.

Vehicle radio licences

Clause 15 of the Bill has already caused concern by proposing to prohibit the issue of vehicle licences and insurance to persons who do not have a “current radio licence” or who have been exempted from the need to have such a licence (for example, elderly people) unless the vehicles to be licensed and insured are not equipped with a radio.

In fact the new provision will not change the law much, if at, all because persons who own or drive vehicles equipped with radios are already supposed to have an appropriate licence for those radios [normally a sound (radio) employer owned vehicle licence or a sound (radio) private vehicle licence].  The new provision actually confuses things by allowing drivers and car owners to avoid taking out vehicle radio licences if they can show they have “current radio licences”, which could mean the much cheaper licences for radios in their urban or rural homes.

Vagueness of some provisions

The provision about vehicle radio licences is just one example of lack of clarity in the Bill.  The new public service obligations of licensees, which we mentioned earlier, is another.  Yet another example is the new section 8(3)(b) which will be inserted in the Act by clause 6 of the Bill:  it is meaningless.  The new definition of “public broadcasting service” inserted by clause 2 of the Bill states that public broadcasters are established by the Broadcasting Services Act:  they aren’t.  All this shows that the Bill would benefit from re-examination and some careful redrafting.

Conclusion

The Bill presents a mix of potentially positive and controversial changes.  While it attempts  –  not that successfully  – to modernise broadcasting regulations and address issues like foreign investment and local content, concerns remain about its potential impact on freedom of expression, media pluralism, and the State’s commitment to promoting a truly independent and diverse media environment in Zimbabwe.