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Zimbabwe

International Focus

Zimbabwe

Background

The first independent constitution of Zimbabwe, that came into force in 1980, sets out a legal basis for FOI when it provides for the” freedom to hold opinions and to receive and impart ideas and information without interference” (s. 20). As with much Zimbabwean law, this provision appears formally stronger than it is in reality, but the basis for a right of access does appear in the rights provisions of the Constitution.

Legislation

While freedom of information is not a reality in Zimbabwe, formally there is a well developed legislative scheme laid out in the Access to Information and Protection of Privacy Act 2003 (AIPPA) [1] that is broadly comparable to the schemes of many western democracies.

For the purposes of the scheme, “all records in the custody or under the control of a public body” (s.4(1)) are subject to request, and “every person shall have a right of access to any record … that is in the custody or under the control of a public body”(s.5(1)). Any person can make a request provided that they are citizens, permanent residents, holders of temporary employment permits, students or registered media agents. No “agent of a foreign state” may make a request (s.5(3)).

The AIPPA also makes provisions for a system of proactive publication, whereby a public body must release information, whether requested or not, if it relates to a risk of significant harm to the health or safety of members of the public, the risk of significant harm to the environment, a matter of national security, or in a range of other eventualities (s.28).

More controversially, the AIPPA not only acts as an access to information law, but also as a means to control the press. In making press accreditation expensive, and failure to register for proper accreditation subject to a potential prison term, the Act allows the state to limit press activity, and to closely monitor those who are involved. [2] Commenting on the scheme, Takura Zhangazha, a media researcher, said, “[i]t’s extortion. The Zimbabwe Media Commission is seeking to extort money from foreign media houses in an effort to fundraise for its oppressive legal mechanisms.” [3]

Among the more high profile actions under AIPPA have been that which led to the the closing down of The Daily News, a popular newspaper critical of the government, in 2004. [4] There are also numerous other reports of journalists being penalised for writing articles hostile to the government.

Exemptions

The exemptions under the AIPPA can be divided into the absolute, and those that give heads of public bodies discretion. In the former category, information relating to the deliberations of cabinet and its committees, policy formation, client-attorney privilege, national security and law enforcement can always be witheld. The head of a public body may, but need not necessarily, refuse to release information that may be harmful to inter-governmental relations or negotiations, the financial or economic interests of a public body or the State, personal safety, protection of the heritage sites, or where the information would be otherwise available to the public.

The collection of exemptions under the Act have been described by Darch and Underwood as “both extensive and broad,”[5], but the scheme has been particularly criticised for the way it inverts the public interest test. In most FOI systems, public interest weighs in favour of releasing information, but in the Zimbabwean legislation, it is used as a reason to withold information (s. 80).

Operation

Any application made under ATI legislation is subject to fees that cover the costs of obtaining access or services rendered in connection to providing access, but may not extend beyond these costs (s.7).

A public body must respond to a request “as soon as is reasonably possible” and at least within 30 days of receiving the request (s.8). This period can be extended for an additional 30 days where the applicant did not give sufficient detail to locate the information, where meeting the deadline will unreasonably interfere with the operations of the public body, or where time is required to consult third parties who would be affected by release. With the agreement of the Media and Information Commission, a government body created by the Act and responsible for administering powers under it, this period may be extended beyond 30 days (s.11). Where a request is refused, the applicant may make an appeal to the Commission (s.9(3)).

While aspects of the scheme may appear well developed compared to the majority of African states that are yet to legislate on FOI, the reality is quite different. In his study of global systems of FOI in 2006, David Banisar found only one example of the political opposition making use of the AIPPA[6], and far from enforcing principles of transparency, The Media and Information Commission is government agency widely regarded as enforcing censorship.The Commission is conflicted by its nature, as it is not only responsible for hearing appeals about public bodies’ refusals to release information, but also prosecuting journalists for failure to register, or for publishing articles that fall foul of the Act. In practice, commentators have tended to agree that the dominant function of the body has been censorship.

Generally speaking it is difficult to get an accurate picture of the number of people who use the AIPPA to access government information, as the Commission is responsible for implementing the regime, and it is far from transparent itself. The requirement that requesters are citizens or fulfil residence requirements mean that it is very difficult for researchers to gather information about the practicalitites of the Act.

Critical response

The critical reaction to the AIPPA has been almost exclusively negative. In his comparative study of FOI regimes, Stanley Tromp indicted the legislation on the grounds that “[its] main purpose is to suppress free speech by requiring journalists to register and prohibiting the ‘abuse of free expression’”[7]. Darch and Underwood have made similar comments to the effect that “[t]he inclusion of Zimbabwe in any list of countries with freedom of information legislation would be highly ironic”[8].

References

[1] http://www.sokwanele.com/pdfs/AIPPA.pdf

[2] http://www.cpj.org/2011/01/zimbabwe-hikes-media-fees-under-draconian-media-la.php

[3] http://www.newsday.co.zw/article/2011-01-05-shocker-as-govt-raises-media-fees

[4] https://cpj.org/news/2004/Zim22jan04na.html

[5] Colin Darch and Peter Underwood, “Freedom of Information in the Developing World: The Citizen, the state and models of openness” 2010

[6] David Banisar, “Freedom of Information Around the World 2006: A Global Survey of Access to Government Records Laws, July 2006” cites “MDC Demands Forex Receipts From RBZ, Financial Gazette (Harare)”, 13 June 2002 as the only example prior to 2006

[7] Stanley Tromp, “Fallen Behind: Canada’s Access to Information in the World Context” p. 19

[8] Darch and Underwood, p. 212

Links

Constitution of Zimbabwe:

http://www.parlzim.gov.zw/cms/UsefulResourses/ZimbabweConstitution.pdf

AIPPA:

http://www.sokwanele.com/pdfs/AIPPA.pdf

Page last modified on 30 sep 11 11:38

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