Court name
Supreme Court of Zimbabwe
Case number
SC 128 of 2002
Civil Application 162 of 2001

Capital Radio (Pvt) Ltd. v Broadcasting Authority of Zimbabwe and Others (162/2001) (SC 128 of 2002, Civil Application 162 of 2001) [2003] ZWSC 128 (24 September 2003);

Law report citations
Media neutral citation
[2003] ZWSC 128




REPORTABLE
(17)











Judgment
No S.C. 128\02


Civil
Application No 162\2001

















CAPITAL
RADIO (PRIVATE) LIMITED v (1) THE BROADCASTING
AUTHORITY OF ZIMBABWE (2) THE MINISTER
OF STATE
FOR INFORMATION AND PUBLICITY (3) THE
ATTORNEY-GENERAL OF ZIMBABWE











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA, CHEDA JA, MALABA JA GWAUNZA AJA


HARARE
JUNE 19, 2002 & SEPTEMBER 25, 2003








A.P.
de Bourbon S.C.
, for
the appellant





J.Tomana,
with him
B. Patel,
for the first respondent





Y.
Dondo
, for the second
respondent









CHIDYAUSIKU CJ: The
applicant in this case is a company duly incorporated with limited
liability according to the laws of Zimbabwe,
having as its main
object, the purpose of carrying on a broadcasting service within
Zimbabwe. The first respondent is the Broadcasting
Authority of
Zimbabwe (BAZ) and the second respondent is the Minister of State for
Information and Publicity in the President’s
Office who is cited in
his official capacity as the Minister responsible for the
administration of the Broadcasting Act [Chapter
12:01] (hereinafter
referred to as the Act). The Attorney-General of Zimbabwe is cited
as an intervener in terms of section 24(6)
of the Constitution of
Zimbabwe. He is entitled to respond to and be heard on any of the
issues raised in the founding affidavit
in terms of the said section
of the Constitution.







On 22 September 2000 in the case
of
Capital Radio
(Private) Limited v The Minister of Information, Posts and
Telecommunications

S-99-2000 the applicant made application to this Court for, and
ultimately obtained, a ruling declaring that section 27 of the
Broadcasting
Act 12:01 was unconstitutional in that the monopoly it
granted the Zimbabwe Broadcasting Corporation was an infringement of
the right
to freedom of expression guaranteed under section 20(1) of
the Constitution. The same order also struck down section 14 of the
Radiocommunication Services Act [12:04] for the same reason. The
applicant thereafter imported one antenna and one transmitter,
hired
some broadcasting equipment and began broadcasting on 28 September
with a test signal. The second respondent sought to stop
the
applicant from broadcasting on the basis that such broadcasting was
unlawful in terms of the Presidential Powers (Temporary Measures)
Broadcasting Regulations. The Presidential Powers (Temporary
Measures) Act under which the above regulations were made was a stop
gap measure intended to fill the legal vacuum created by this Court
declaring section 24 of the Broadcasting Act unconstitutional
which
left the Broadcasting Services without a legal framework. The
Presidential Powers (Temporary Measures) Act was superceded
by the
Act which came into force on 4 April 2001. The applicant contends
that the Act contravenes the Constitution in certain respects.
In
particular, and in terms of the draft order, the applicant seeks an
order declaring the following sections of the Act unconstitutional:-







  1. Section
    4(2) and 4(3)


  2. Section
    6


  3. Section
    8(1) and (2) and 22(2)


  4. Section
    8(5)


  5. Section
    9(1),(2) and (3)


  6. Section
    11(1) in conjunction with para 9(1)(b) and (c) of the Fifth Schedule


  7. Section
    11(4)


  8. Section
    12(1)(f), (2) and (3)


  9. Sections
    15 and 16







The challenge to sections 2, 3
and 4 of the Fifth Schedule was withdrawn during the proceedings.







In essence the applicant’s case
is that the impugned provisions contravene section 20 of the
Constitution of Zimbabwe. The application
is being brought in terms
of section 24 of the Constitution. Section 24(1) of the
Constitution confers
locus
standi
only on an
applicant who alleges that the declaration of rights has been, is
being, or is likely to be, contravened in relation to
the applicant.
Section 24(1) provides as follows:-







“24(1) If any person alleges
that the Declaration of Rights has been, is being or is likely to be
contravened in relation to him (or,
in the case of a person who is
detained, if any other person alleges such a contravention in
relation to the detained person), then,
without prejudice to any
other action with respect to the same matter which is lawfully
available, that person (or that other person)
may, subject to the
provisions of subsection (3), apply to the Supreme Court for
redress.”










It
is not sufficient to merely allege that a particular provision is
inconsistent with the Constitution without a reference to the
applicant’s constitutional right.
1
I shall revert to this later.






In my view the impugned sections
fall into two broad categories. The one category regulates the
licensing process and the other
category regulates the manner of
operation once an applicant is successful and is operating as a
broadcaster.






It
is common cause that the applicant has or intends to apply for a
radio broadcasting service licence. I have no doubt that
those
impugned sections of the Act that regulate the process of obtaining a
radio broadcasters licence, if unconstitutional, would
or are likely
to adversely affect the applicant. The applicant’s
locus
standi
to challenge
those sections is beyond question. The applicant’s
locus
standi
to impugn those
sections of the Act that regulate the operations of a licensed radio
broadcaster, which it is not, is debatable.






This
Court is essentially an appeal court. It enjoys no original
jurisdiction except in constitutional matters in terms of section
24
of the Constitution. Thus the jurisdiction and the
locus
standi

of litigants seeking to approach this Court in terms of section 24
has to be found within the four corners of section 24 of the
Constitution.
This restriction does not affect a litigant that
wishes to institute a constitutional application in the High Court.
The provisions
of section 24 do not, in any way, circumscribe the
locus
standi

of an applicant in the High Court. In the High Court the common law
test, namely having an interest in the matter under adjudication,
is
sufficient to establish
locus
standi
.2
In a constitutional application in the High Court all that a
litigant is required to show to establish
locus
standi

is a substantial interest in a matter.






A direct
approach to the Supreme Court requires a litigant to allege that
his
not another person’s fundamental right has been violated.
Obviously it is not sufficient to merely allege that one’s
fundamental
right has been, is, or is likely to be violated. The
factual basis for such an allegation has to be set out. It follows,
therefore,
that when a litigant is denied a hearing by this Court
because he has no
locus
standi

that does not necessarily mean that the door to litigation has been
closed. It may merely mean that the litigant has commenced
his
application in the wrong forum taking into account the basis of his
locus
standi
.






A
constitutional application commenced in the High Court can always
find its way to the Supreme Court on appeal. In short, the
basis of
a litigant’s
locus
standi

in the High Court is much wider than it is in this Court sitting as a
constitutional court. In my view it would be doing violence
to the
language of section 24 of the Constitution to ascribe to it the
meaning that it is sufficient to allege an interest in the
matter in
order to establish
locus
standi
.






The
applicant, as already stated, initially approached this Court in the
case of
Capital
Radio (Private) Limited v Minister of Information, Posts and
Telecommunications

S-99-2000
on
the basis that section 27 of the Broadcasting Act [Chapter 12:01] was
unconstitutional. As I understand the judgment the applicant
applied to this Court, in that case, on the basis that as an
individual its right to receive and impart information was abridged
by section 27 in that, that section restricted the means of
communication between individuals. If the applicant had sought
relief
in the same capacity in these proceedings, namely that as an
individual, its right to receive and impart information was being or
is likely to be abridged by the impugned sections of the Act I would
have little difficulty in concluding that the applicant had
locus
standi

in respect of all the impugned sections. This capacity could have
been pleaded in the alternative. However, the applicant has
elected
to approach this Court on the basis that it is an aspiring radio
broadcaster and as such certain provisions of the Act are
likely to
abridge its fundamental rights as an aspiring broadcaster. In my
view by adopting this approach the applicant narrowed
its own basis
for
locus
standi
.






I might also
add that where facts are common cause and the question of whether on
the admitted facts a litigant has
locus
standi

that issue is a question of law which need not be pleaded. Failure
to raise that issue on the papers is not fatal. The court
can and
indeed should apply the law to the admitted facts but whenever
possible both counsel should be given an opportunity to make
submissions on the points of law that may not have been raised on the
papers or in argument.






I shall
further address the issue of
locus
standi

when I come to deal with the specific sections that have been
impugned.





It
is contended by the applicant that the specific provisions of the Act
set out in the draft order are
ultra
vires
the
Constitution, in particular, section 20, which guarantees the freedom
of expression.






Section 20 of the Constitution
which guarantees freedom of expression provides in the relevant part
as follows:-







“20 Protection of freedom of
expression



(1) Except with his own consent
or by way of parental discipline, no person shall be hindered in the
enjoyment of his freedom of expression,
that is to say, freedom to
hold opinions and to receive and impart ideas and information without
interference, and freedom from interference
with his correspondence.






(2) Nothing contained in or done
under the authority of any law shall be held to be in contravention
of subsection (1) to the extent
that the law in question makes
provision –







(a) in the interests of defence,
public safety, public order, the economic interests of the State,
public morality or public health;







(b) for the purpose of –



(i) protecting the reputations,
rights and freedoms of other persons or the private lives of persons
concerned in legal proceedings;



(ii) preventing the disclosure of
information received in confidence;







(iii) maintaining the authority
and independence of the courts or tribunals or Parliament;











(iv) regulating the technical
administration, technical operation or general efficiency of
telephony, telegraphy, posts, wireless
broadcasting or television or
creating or regulating any monopoly in these fields;







  1. in
    the case of correspondence, preventing the unlawful dispatch
    therewith of other matter; or




(c) that imposes restrictions
upon public officers; except so far as that provision or, as the case
may be, the thing done under the
authority thereof is shown not to be
reasonably justifiable in a democratic society.













It would appear to me from the
affidavits filed of record that the following issues fall for
determination in this case.




  1. Whether
    section 20(1) of the Constitution includes freedom of the press.


  2. If
    section 20 of the Constitution does include freedom of the press,
    does the setting up of a regulatory authority constitute a
    permissible derogation of that freedom of the press?


  3. If
    the setting up of a regulatory authority is a permissible derogation
    are the impugned sections setting up such authority and
    the other
    impugned sections within the permissible constitutional derogations?








I will now deal with the above
issues
seriatim.






DOES
SECTION 20(1) OF THE CONSTITUTION INCLUDE FREEDOM OF THE MEDIA SUCH
AS THE ELECTRONIC MEDIA
IN
CASU
?



Mr Tomana,
for the first respondent, submitted that the applicant’s contention
that press freedom is protected under section 20 of the Constitution
and, therefore, that restrictions or regulations imposed on the
entrants into electronic media was erroneous. He argued that there
was an important distinction between press freedom and the freedom of
expression which is that press freedom is not a human right
while
freedom of expression is a human right. He further submitted that
section 20 of the Constitution confers and protects a human
right
which is specifically given to a private human being in his
individual capacity to enjoy. This right, so the argument goes,
is
not given to a media institution at all. Mr
Tomana
further argued that the explicit language of section 20 of the
Constitution makes it obvious that it is referring to a human being
and not the media or the press. In short, he argued that the domain
wherein free speech is exercised by everyone is distinctly
different
from the domain wherein the media demands press freedom while using
the common asset or the people’s strategic and limited
asset, the
air waves. He concluded by submitting that the applicant’s
assumption that press freedom is subsumed under section
20 of the
Constitution as well as Article 19 of the International Charter of
the Civil and Peoples’ Rights, (ICCPR) is fatally
incorrect. Mr
Tomana
contends that no cause of action has therefore been established and
all prayers founded on section 20 of the Constitution should
fail.







In support of this contention Mr
Tomana
relied on the work of Robert W. McChesney entitled
Rich
Media Poor Democracy

at p 269. He also relied on a presentation by Kaarle Nordenstreng
to the International Symposium on the Mass Media Declaration
of
UNESCO held on 26 – 28 June 1987 entitled “On the Nature and
Significance of the Declaration”.







The applicant, on the other hand,
contends that the freedom of expression enshrined in section 20 of
the Constitution includes freedom
of the press and any interference
with the means of communication between citizens constitutes an
abridgement of that right. Such
an abridgement has to be saved by
one of the provisos in section 20 of the Constitution to be lawful.







Thus, in this regard, the issue
that falls for determination is what meaning is to be ascribed to
section 20 of the Constitution.
Put differently, does the freedom
of expression entrenched by section 20 of the Constitution include
freedom of the press?







The issue here is one of the
interpretation of section 20 of the Constitution. It is trite that
in interpreting statutes, including
the Constitution, the golden rule
is that in order to ascertain the intention of the legislature the
words of a statute or legislation
are to be given their ordinary or
primary meaning. It is only where that primary meaning of the words
are obscure or lead to absurdity
that other principles of
interpretation are invoked to assist in the ascertainment of the
intention of the legislature.







Some support for this approach
can be derived from the fact that in other jurisdictions where the
legislature has sought to entrench
freedom of the media or the press
explicit and unambiguous language has been used.







For instance in the South African
Constitution the following provisions are found:-







“16.(1) Everyone has the right
to freedom of expression, which includes –






(a) freedom
of the press and other media
;



  1. freedom
    to receive or impart information or ideas;








  1. …


  2. …” (underlining
    is mine)







Thus
the freedom of expression as set in the South African Constitution is
spelt out clearly and unambiguously to include freedom
of the press.
This is not the case with section 20 of the Zimbabwe Constitution.
Is this difference in the wording of any legal
significance? The
approach that words of a statute be ascribed their ordinary or
literal meaning tends to support the first respondent’s
contention.







However, there is another
different approach to constitutional interpretation. This approach
is supported by a long line of cases
both nationally and
internationally. On this approach a Constitution is considered a
document that is
sui
generis
requiring
special guidelines of interpretation. These guidelines or
principles include –







1. the Constitution must be
interpreted as a living Instrument;
3



  1. the
    Constitution must be given a generous and purposive construction;
    4


  2. the
    Constitution must be construed as a whole;
    5


  3. the
    spirit of the Constitution as reflected in the preamble and national
    objective and directive principles of state policy is to
    guide
    interpretation by the court;
    6


  4. ratified
    treaties should provide a legitimate guide in interpreting
    constitutional provisions.
    7








This Court has had occasion to
consider what meaning is to be ascribed to section 20 of the
Constitution. The court concluded that
section 20 of the
Constitution has to be interpreted using the broad principles set out
above. Indeed Mr
de
Bourbon
did not seek
to argue this point strenuously. He took the view that the issue of
what meaning is to be ascribed to section 20 of
the Constitution has
already been determined by this Court on the basis that freedom of
expression extends to corporate persons and
includes freedom of the
press and that any restriction on the means of communication
including the press abridges freedom of expression
conferred by
section 20 of the Constitution. The case of
Retrofit
v
Posts
and Telecommunications Corporation & Anor
8
clearly supports this contention.







It may be argued that this Court,
in interpreting section 20 of the Constitution to include its
application to artificial persons
and the freedom of the media, in
effect amended the Constitution, a function constitutionally
exercisable by the legislative arm
of the government. Whatever
merit this argument may have, the fact of the matter is that the
legislature, upon becoming aware of
this ascribed meaning of section
20 of the Constitution, did not seek to amend the Constitution. In
this regard it is also interesting
to note that the 1999 Draft
Constitution which was rejected in a referendum but was crafted by a
constitutional commission composed
of members of the legislature
sought to guarantee freedom of the press in very specific terms.
The Draft Constitution provided
in section 45 as follows:-







“45.(1) Everyone has the right
to freedom of speech and expression, which includes –







  1. freedom
    to uphold opinions;


  2. freedom
    to seek, receive and communicate ideas and information regardless of
    frontiers;








  1. freedom
    of the press and other media of communication




(underlining is mine)











The present Lancaster House
Constitution has seen its better days. The need for its amendment,
if not overhaul, commands consensus
among Zimbabweans. Divergence
of opinion only emerges on the nature and extent of such amendments.
As I have said the liberal
approach to constitutional interpretation
is supported by a long line of cases. “A Constitution is a living
instrument which
must be construed in the light of the present day
conditions.”
9







The Supreme Court of Pakistan
expressed similar sentiments in the case of
Nauraz
Sharif v President of Pakistan
10:-







“… basic or fundamental
rights of individuals which presently stand formally incorporated in
the modern constitutional documents, derive
their lineage from and
are traceable to the Actival Law. With the passage of time and the
evolution of civil society, great changes
occur in the political,
social and economic conditions of society. There is, therefore, the
corresponding need to re-evaluate the
essence and source of
fundamental rights as originally provided in the Constitution. They
require to be construed in consonance
with changed conditions of the
society and must be viewed and interpreted with a vision to the
future.”








I
respectfully agree with the above approach and appreciate the need to
ascribe to section 20 of the Constitution a liberal interpretation
in
order to breathe life into a Constitution with a declaration of
rights in great need of rejuvenation.



The importance of freedom of
expression that includes freedom of the press has been proclaimed by
this Court and courts in other jurisdictions
as well as
international organisations.







Thus, as the applicant correctly
submitted, Article 19 of the Universal Declaration of Human Rights
proclaims the right to freedom
of expression in the following terms:-






“Everyone has the right to
freedom of opinion and expression; this right includes freedom to
hold opinions without interference and
to seek, receive and impart
information through any media and regardless of frontiers.”






Similarly Article 19 of the
International Covenant on Civil and Political Rights proclaims as
follows:-







“(1) Everyone shall have the
right to hold opinions without interference.







(2) Everyone shall have the right
to freedom of expression;







this right shall include freedom
to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally,
in writing or in print, in
the form of art, or through any other media of his choice.”







Zimbabwe is a party to the
African Charter and Peoples Rights. The African Charter provides in
Article 9 as follows:-







“1. Every individual shall have
the right to receive information.







  1. Every
    individual shall have a right to express and disseminate this
    opinion within the law.”












The African Commission on Human
and Peoples’ Rights noted, in respect of the above Article 9 of the
ACHPR:-






“This article reflects the fact
that freedom of expression is a basic human right vital to an
individual’s personal development,
his political consciousness and
participation in the conduct of the public affairs of his country.”
(Ref on p 6 of Applicant’s
heads of argument)







Zimbabwe, as I have already
stated, is a party to the ACHPR and consequently Article 9 should
provide a legitimate guide in interpreting
section 20 of the
Constitution.







The European Court of Human
Rights has also recognised the key role of freedom of expression:-







”Freedom
of expression constitutes one of the essential foundations of [a
democratic] society, one of the basic conditions for its
progress and
for the development of every man… it is applicable not only to
‘information’ or ‘ideas’ that are favourably
received… but
also to those which offend, shock or disturb the State or any other
sector of the population. Such are the demands
of pluralism,
tolerance and broadmindedness without which there is no ‘democratic
society.’”
11







Similarly, the Inter-American
Court of Human Rights stated:-







“Freedom
of expression is a cornerstone upon which the very existence of a
democratic society rests.”
12







The right of free speech is
universally recognised as one of the most precious of all political
rights which is central to open, transparent,
accountable and
democratic government.






The
above and other academic evaluations of the importance of free speech
have received world wide judicial recognition and have
been most
elegantly expressed by Mr Justice CARDOZO in his often quoted
words:-



“Of
that freedom (thought and speech) one may say that it is the matrix,
the indispensable condition, of nearly every other form of
freedom.”
13





In
the case of
Chavunduka
& Anor v Minister of Home Affairs and Anor
14
this Court had this to say:-






“This Court has held that s
20(1) of the Constitution is to be given a benevolent and purposive
interpretation. It has repeatedly
declared the importance of
freedom of expression to the Zimbabwean democracy … Furthermore,
what has been emphasised is that
freedom of expression has four broad
special objectives to serve: (i) it helps an individual to obtain
self-fulfilment; (ii) it
assists in the discovery of truth, and in
promoting political and social participation; (iii) it strengthens
the capacity of an
individual to participate in decision-making;
and, (iv) it provides a mechanism by which it would be possible to
establish a reasonable
balance between stability and social change.”






On the basis of the authorities,
I am satisfied that the freedom of expression conferred by section 20
of the Constitution has to
be interpreted to include freedom of the
press and is also enjoyed by corporate persons. Freedom of the press
is one thing. Abuse
of the freedom of the press in another. Every
right minded person supports the former and abhors the latter. In
efforts to remedy
the ills of the latter undue restrictions should
not be imposed on the former.






DOES
THE SETTING UP OF REGULATORY AUTHORITY CONSTITUTE A PERMISSIBLE
DEROGATION OF THE FREEDOM OF EXPRESSION OR THE PRESS
?


It
is common cause that the setting up of a regulatory authority is a
permissible derogation of the fundamental right of the freedom
of
expression. The applicant concedes that much in paragraph 20 of the
heads of argument wherein it is submitted:-







“Freedom of expression is not,
however, absolute. Every system of international and domestic
rights recognises carefully drawn and
limited restrictions on freedom
of expression to take into account the values of individual dignity
and democracy. Under international
human rights law, national laws
that restrict freedom of expression must comply with the provisions
of Article 19(3) of the ICCPR:







‘The exercise of the rights
provided for in paragraph 2 of this article carried with it special
duties and responsibilities.
It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and
are necessary:







  1. For
    respect of the rights or reputations of others;








(b) For the protection of
national security or of public order (
ordre
public
) or of public
health or morals.’”







In my view this concession is
properly made and finds support in other jurisdictions. For
instance in the case of
Athukorale
and Ors v Attorney-General of Sri Lanka
15
the Supreme Court of Sri Lanka held that:-







“having regard to the limited
availability of broadcasting frequencies, the regulation of
broadcasting was necessary to ensure the
adequate coverage of issues
and to prevent the monopolistic domination of the frequency spectrum
by the government or by a few individuals.
On that basis regulation
did not violate the right to freedom of speech but rather advanced it
by serving the interest of the whole
community and giving listeners
and viewers the opportunity to consider a range of views. However,
in order to safeguard the fundamental
rights of freedom of thought
and expression the regulatory body had to be independent of the
government. …”






It
is also apparent from the same judgment that regulation, particularly
the need for licensing was necessary for the maintenance
of law and
order. In this regard the court had this to say:-







“Article
14 of the Constitution deals with those great and basic rights which
are recognised and guaranteed as the natural rights inherent
in the
status of a citizen of a free country. Freedom of speech … goes
to the heart of the natural right of an organised freedom-loving
society to impart and acquire information … This freedom is not
absolute. There is no such thing as absolute or unrestricted
freedom of speech and expression, wholly free from restraint’ for
that would amount to uncontrolled licence which would lead to
disorder and anarchy.
Absolute
and unrestricted individual rights do not and cannot exist in a
modern State. The welfare of the individual, as a member
of
collective society, lies in a happy compromise between his rights as
an individual and the interests of the society to which he
belongs

… Our Constitution has rightly struck a proper balance between
the varying competing social interests, and has … set forth
the
restrictions to which the fundamental right of speech and expression
may be subject …”


(underlining
is mine)



The Court went further in stating
the necessity to licence and stated:-







“Scarcity
is not entirely a thing of the past, and therefore states have a
continuing and compelling need to regulate the use of the
frequency
spectrum. The US Senate said that ‘broadcast frequencies are
limited and, therefore, they have been necessarily considered
a
public trust.’ (See S Rep No 562, 86
th
Cong 1
st
Sess 8-9 (1959) US Code Cong & Adm News p 2571.) That
observation was cited with approval by the US Supreme Court in
Red
Lion Broadcasting Co.
The
Supreme Court of India too has endorsed the view that
airwaves/frequencies are limited and must be regarded as ‘a public
property’
with regard to which the State must exercise control so
that they will be used for the public good: see
Secretary,
Ministry of Information and Broadcasting, Govt of India v Cricket
Association of Bengal

(1995) AIR (82) 1995 Supreme Court 1236 (esp paras 78, 185, 192, 193,
194). It is recognised that states ‘have the right and
the duty
to ensure the orderly regulation of communications, and this can only
be achieved by a licensing system’ (
Groppera
Radio AG v Switzerland
(A/173)
(1990) 12 EHRR 321 at 350, per Berdhardt J). Because of the public
property nature of frequencies, licences to broadcast
do not confer
ownership of designated frequencies, but only the temporary privilege
of using them during a specified time: see
Red
Lion Broadcasting Co
.







Radio and television, because of
their pervasive and wide reach and influence on members of the
public, constitute a most important
means of mass communication. In
order to play its role in advancing freedom of speech, the state,
because of the limited availability
of frequencies, must endeavour to
ensure that the medium continues to be effective. Because of the
limited availability of frequencies,
chaos would ensue if the
spectrum is uncontrolled and the usefulness of radio and television
as a means of communication would soon
come to an end, with
unfortunate consequences for the right to free speech and independent
thought. If there is to be effective
communication, only a few can
be licensed and the rest must be barred from the airwaves. The
matter was explained in
Red
Lion Broadcasting Co

395 US 367 at 387-388 in the following words:-







‘Just as the Government may
limit the use of sound-amplifying equipment potentially so noisy that
it drowns out civilized private speech,
so may the Government limit
the use of broadcast equipment. The right of free speech of a
broadcaster, the user of a sound track,
or any other individual does
not embrace a right to snuff out the free speech of others … When
two people converse face to face,
both should not speak at once if
either is to be clearly understood. But the range of the human
voice is so limited that there
could be meaningful communications if
half the people in the United States were talking and the other half
listening. Just as clearly,
half the people might publish and the
other half read. But the reach of radio signals is probably greater
than the range of the
human voice and the problem of interference is
a massive reality. The lack of know-how and equipment may keep many
from the air,
but only a tiny fraction of those with resources and
intelligence can hope to communicate by radio at the same time if
intelligible
communication is to be had, even if the entire radio
spectrum is utilized in the present state of commercially acceptable
technology.
It was this fact, and the chaos which ensued from
permitting anyone to use any frequency at whatever power level he
wished, which
made necessary the enactment of the Radio Act of 1927
…’







The Court had earlier explained
the need for a regulatory authority:-







‘Before 1927 the allocation of
frequencies was left entirely to the private sector, and the result
was chaos. It quickly became apparent
that broadcast frequencies
constituted a scarce resource whose use could be regulated and
rationalized only by the Government.
Without government control,
the medium would be of little use because of the cacophony of
competing voices, none of which could be
clearly and predictably
heard. Consequently the Federal Radio Commission was established …’
(See 395 US 367 at 375-376).”















In the case Groppera
Radio AG v Switzerland

12 EHRR 321 the European Court for Human Rights recognised the need
for licensing. At page 399 (para 61) the court had this to
say:-







“The Court observes that
Article 19 of the 1966 International Covenant on Civil and Political
Rights does not include a provision corresponding
to the third
sentence of Article 10(1). The negotiating history of Article 19
shows that the inclusion of such a provision in that
Article had been
proposed with a view to the licensing not of the information but
rather of the technical means of broadcasting in
order to prevent
chaos in the use of frequencies. However, its inclusion was opposed
on the ground that it might be utilised to
hamper free expression,
and it was decided that such a provision was not necessary because
licensing in the sense intended was deemed
to be covered by the
reference to ‘public order’ in paragraph 3 of the Article. This
supports the conclusion that the purpose
of the third sentence of
Article 10(1) of the Convention is to make it clear that states are
permitted to control by a licensing
system the way in which
broadcasting is organised in their territories, particularly in its
technical aspects. It does not, however,
provide that licensing
measures shall not otherwise be subject to the requirements of
paragraph 2, for that would lead to a result
contrary to the object
and purpose of Article 10 taken as a whole.”















On the basis of the above
authorities and indeed the concession made by the applicant I am
satisfied that the regulation of the Broadcasting
Services is not
unconstitutional or, put differently, is a permissible derogation.
I now turn to deal with the issue of whether
the particular impugned
sections go beyond the limit permissible in terms of the
Constitution.






ARE THE IMPUGNED SECTIONS OF
THE ACT BEYOND THE RESTRICTIONS PERMISSIBLE IN TERMS OF THE
CONSTITUTION?


I
have concluded that in general terms legislation providing for
regulation of the electronic media is constitutionally permissible.

Indeed many constitutions, including the Zimbabwean Constitution,
expressly permit derogation from the fundamental rights contained
therein. However, such derogation or restriction has to meet
certain criteria or requirement to bring it within the ambit of what
is constitutional.







The following are some of the
criteria that a restriction has to satisfy for it to be
constitutional.







  1. the
    restriction has to be prescribed by law;
    16


  2. the
    restricting law must be foreseeable;


  3. the
    restricting law must be subject to effective control;
    17


  4. the
    restricting law must not negate the essential of the right in
    question;
    18


  5. the
    restricting law must be reasonably required to protect the right of
    others.
    19







In the case of Nyambirai,
supra
, this Court
concluded that in determining whether a law providing for the
compulsory payment of contributions by employers and employees
was
reasonably justifiable in a democratic society this Court should have
regard to the attitude of many other countries towards
similar
schemes. Similarly in this case it would be instructive if this
Court should have regard to legislation providing for the
regulation
of the media in other countries. I shall now proceed to examine
similar legislation in other countries.






UNITED KINGDOM


The
Broadcasting Act 1990 (as amended) is the Act that regulates the
broadcasting industry in the United Kingdom. It vests regulatory
powers of the Broadcasting Industry in two bodies, namely, The Radio
Authority and the Independent Television Commission (I.T.C.).

Significantly these two authorities exercise regulatory powers over
non-state broadcast institutions only. They do not have any
say
over British Broadcasting Corporation whether television or radio.
These come under the direct regulation of the British Government
through interfacing structures. Thus the highly influential
national and international broadcaster in the United Kingdom is not
regulated by any authority outside the British Government.







Section 1(2) of the Broadcasting
Act spells out who appoints the


Commission:-







  1. The
    Commission shall consist of –








  1. a
    chairman and a deputy chairman
    appointed
    by the Secretary of State
    ;
    and








  1. such
    number of other members appointed by the
    Secretary
    of State
    , not being
    less than eight nor more than ten, as he may from time to time
    determine.”




(underlining is mine)










This
provision is almost identical with section 4 of the Act.






Section 83(2) gives the Secretary
of State for Culture Media and Sport the same powers in respect of
the Radio Authority.







Schedule 1 of the same Act
provides the details of the Commission. Conditions militating
against appointment to the Commission relate
to connection with the
BBC, the Broadcasting Complaints Commission, the Broadcasting
Standards Council, and financial or business
connection with the
broadcasting industry. Outside that, the Secretary of State is
required to ensure that the special interests
of Wales and Scotland
are represented on the Commission. The remuneration of members of
the Commission is determined by the Secretary
of State, as is also
the borrowing powers of the Commission. The same powers also relate
to the Radio Authority and are spelt out
in Schedule 8.







The British Act makes the
Commission and the Radio Authority the licensing authorities for
non-state television and radio respectively
as they do not cover the
BBC.







Section 10 of the British Act
gives the Secretary of State or, for that matter, any other Minister
of the Crown power and control
over broadcast content of licensed
private broadcasters. It reads:-







“10.(1) If it appears to him to
be necessary or expedient to do so in connection with his functions
as such, the Secretary of State
or any other Minister of the Crown
may at any time by notice require the Commission to direct the
holders of any licences specified
in the notice to publish in their
licensed services, at such times as may be specified in the notice,
such announcement as is so
specified, with or without visual images
of any picture, scene or object mentioned in the announcement; and
it shall be the duty
of the Commission to comply with the notice.







  1. Where
    the holder of a licence publishes any announcement in pursuance of a
    direction under subsection (1), he may announce that
    he is doing so
    in pursuance of such a direction.








  1. The
    Secretary of State may at any time by notice require the Commission
    to direct the holders of any licence specified in the notice
    to
    refrain from including in the programmes included in their licensed
    services any matter or classes of matter specified in the
    notice;
    and it shall be the duty of the Commission to comply with the
    notice.







  1. Where
    the Commission –







  1. have
    given the holder of any licence a direction in accordance with a
    notice under subsection (3), or








  1. in
    consequence of the revocation by the Secretary of State of such
    notice, have revoked such a direction, or where such a notice
    has
    expired, the holder of the licence in question may publish in the
    licensed service an announcement of the giving or revocation
    of the
    direction or of the expiration of the notice, as the case may be.







  1. The
    powers conferred by this section are in addition to any power
    specifically conferred on the Secretary of State by any other
    provision of this Act.








  1. In
    relation to any licensed service provided from a place in Northern
    Ireland, the reference in subsection (1) to a Minister of
    the Crown
    includes a reference to the head of any Northern Ireland
    department.”










Section
11 and the Fifth Schedule of the Act which are impugned seem to be
modelled on the above provisions of the British Act.







The same Act is also significant
in that it lays the basis for the licensing of Television Channels
3,4 and 5. While the Act specifies
a number of criteria for the
selection of a licensee, it makes special precautionary provisions
for the cash dimension of set criteria.
Nominally, section 17
provided that the licence should go to the highest cash bid.
However, section 17(5) qualifies this in a
way that betrays the locus
of licensing power. It provides that should the Commission have any
reason to suspect in respect of
an applicant that “any relevant
source of funds is such that it would not be in the public interest
for the licence to be awarded
to him”, the application together
with supporting documents is referred to the Secretary of State.
The Commission shall not award
the licence in such a case unless the
Secretary of State has given his approval.







Subsection 17(6) states:-







“On such a reference the
Secretary of State may only refuse to give his approval to the
licence being awarded to the applicant in question
if he is satisfied
that any source of funds is such that it would not be in the public
interest for the licence to be awarded."














The
above section confers on the British Secretary of State, a political
functionary, considerable power to determine what constitutes
in the
public interest for the purpose of refusing or the granting of a
broadcasting licence. Section 4 of the Zimbabwean Act constitutes
the Broadcasting Authority to be appointed by the Minister after
consultation with the President composed of no fewer than five and
not more than nine members. The Broadcasting Act (United Kingdom)
similarly constitutes a body corporate called Independent Television
composed of not less than eight and not more than ten members. In
both Acts there are limitations in terms of criteria of who is
to be
appointed to the regulating Authority.







In terms of section 6 of the Act
the Minister is the licensing authority. The Board shortlists, and
by public inquiry, determines
or otherwise, the applicants and makes
recommendations to the Minister to issue or not to issue a licence to
an applicant. See
section 10(9).







It would appear that sections 4
and 6 of the Zimbabwean Act are modelled on sections 3 and 5 of the
British Broadcasting Act. In
terms of British provisions once
appointed the ITC is the licensing authority. There is no
involvement of the Secretary of State
in regard to the granting or
otherwise of licences except in circumstances set out in section
17(5) as read with subsection 6 quoted
above. Thus the most
significant difference between the Zimbabwean and United Kingdom
legislation in this regard is that under
the Zimbabwean Act the
Minister continues to have decision-making powers over the authority
subsequent to its appointment while the
United Kingdom Act confers
decision-making powers to the Commission independent from the
Secretary of State subsequent to its appointment
except for the
special circumstances set out in section 17(5) as read with
subsection 6 of the United Kingdom Act.





AUSTRALIA


In
Australia the Australian Broadcasting Services Act of 1992 governs
the broadcasting industry. Unlike other Acts which shy away
from
projecting the national interest, the Australian Act’s objects are
definitive on protecting Australia’s national and cultural
interests. Part 1 section 3 of the Act seeks to ensure that
“international broadcasting services are not provided contrary to
Australia’s national interest" and thus insist that
broadcasters promote services that develop and reflect “a sense of
Australian
identity, character and cultural diversity". Beyond
resisting the swamping of Australian cultural interest by global
media
structures, the Australian Act also upholds the national
interest by ensuring that Australians have “effective control of
the more
influential broadcasting services”. To that end the
Australian Act disallows foreign control of broadcasting in Australia
(Part
5 section 57). Similarly section 8(1) of the Zimbabwean Act
seeks to control foreign influence of broadcasting in Zimbabwe.





The Australian Act creates the
Australian Broadcasting Authority (“ABA”) as the licensing and
regulating authority. ABA is made
up of seven members who are
appointed by the Governor-General without reference to any other body
or persons outside governmental
structures (Part 12 section 155).
The Governor-General also appoints the Chairman and Vice-Chairman
from the group who are full-time
employees. The responsible Minister
for Communications, Information Technology and the Arts can assign on
either a full-time or
part-time basis appointees for specific
assignments related to broadcasting. The Minister may also appoint
associate members.
ABA reports to the responsible Minister who also
has the right to give “written directions” to it in terms of Part
12 section
162. The directives are required to be gazetted “as
soon as practicable after giving the direction”.







As a licensing authority, ABA
can, in terms of Part 4 section 36(2), get “specific directions
from the Minister for the purpose
of a determination (on licensing).”
The Australian Act is more stringent on licensing international
broadcasters than the Zimbabwean
Act. In terms of Part 8B and
section 121, ABA is required to refer all applicants for
international broadcasting licence to the
Minister of Foreign Affairs
who must determine the suitability of the applicant in relation to
the Australian national interest and
compliance with international
broadcasting guidelines. Thus section 121 FD specifically provides
that:-







  1. If
    –








  1. an
    application for an international broadcasting licence is referred to
    the Minister for Foreign Affairs under subsection 121FB(1)
    or (5);
    and








  1. the
    Minister for Foreign Affairs is of the opinion that the proposed
    international broadcasting service concerned is likely to be
    contrary to Australia’s national interest;







the Minister for Foreign Affairs
may, by written notice given to the ABA, direct the ABA not to
allocate an international broadcasting
licence to the applicant.














In
terms of content, Part 7 section 113 of the Australian Act, allows
the Minister to specify through a Government Gazette “an event,
or
events of a kind, the televising of which should, in the opinion of
the Minister, be available to the general public.” This
provision
is strikingly similar to section 11 of the Zimbabwean Act.






IRELAND


In
Ireland the Broadcasting and Wireless Telegraphy Act 1988 and the
Broadcasting Act 2001 govern the broadcasting industry and creates
the Broadcasting Commission of Ireland and the Broadcasting
Complaints Commission. The former licences and regulates only
non-state
broadcasting activities (public broadcasters are excluded).
The latter develops and enforces Codes and Standards for all
broadcasters.
Both bodies are under the Ministry of Arts, Heritage,
Gaeltacht and the Islands. In terms of subsection 3(1) of the Irish
Broadcasting
and Wireless Telegraphy Act, 1988, “A broadcast shall
not be made from any premises or vehicle in the State unless it is
made pursuant
to and in accordance with a licence issued by the
Minister.







Both the Broadcasting Commission
and the Broadcasting Complaints Commission are appointed by the
Government through the responsible
Minister and should consist of not
less than seven and not more than nine members, with both genders
having not less than three members.
Government has the power to
remove a member of the Commission for state reasons. Thus in
Ireland a Minister of government is
vested with a lot more power to
control the broadcasting industry than is provided for in the
Zimbabwean Act.







The Irish Act also provides for
programme content. In terms of the Irish Act all broadcasters are
required to be (1) ”mindful
of the need for understanding and peace
within the whole island of Ireland and (2) ensure that the programme
material aforesaid reflects
the varied elements which make up the
culture of the whole island of Ireland and have special regard for
the elements which distinguish
that culture, and, in particular, the
Gaeltachtai”.







The Zimbabwean Act does not go as
far as the Irish Act in seeking to control programme content.






NIGERIA


The
Nigerian broadcasting sector is monitored and regulated by the
National Broadcasting Commission (“NBC”). The NBC does not
licence but recommends applications for licensing “through the
Minister of Information and National Orientation to the President
for
the grant of radio and television services. It derives its powers
from Decree (Act) 38 (1992) and Decree (Act) 55 (1999) enacted
by the
new civilian and democratic Government of Nigeria. The Director
General of NBC is appointed by the President through recommendation
by the Minister.






NORWAY


The
Norwegian Broadcasting Industry is governed by Act No 127 of 4th
December 1992. The Norwegian Act provides for Mass Media Authority
which does not regulate but is “an administrative body placed under
The Royal Ministry of Cultural and Church Affairs" to
handle
non-state broadcasting and press issues (public broadcasters are
excluded). The Broadcasting Division of the Authority,
among other
duties, processes applications for broadcasting licences for local
radio and television, satellite broadcasting; monitors
advertisements and sponsorship in broadcasts and imposes sanctions
against offenders of the Act.







In Norway the Licensing Authority
is The Royal Ministry of Cultural and Church Affairs, under Chapter 2
(General Provisions) section
2:1. Even then, the regulatory powers
of the Ministry are heavily circumscribed by the King who enjoys
sweeping powers under the
Act. The relevant section reads:-







“The
Ministry issues licences for broadcasting and local broadcasting.
Conditions may be attached to such licences. The King may
issue
regulations concerning the allocation of licences and the terms and
conditions of licences,
inter
alia
, on the operation
and revocation etc., of licences, on licensing areas and ownership
restrictions. The King may issue regulations
concerning
circumstances in which a broadcaster is required to comply with
Norwegian broadcasting rules. The King may also issue
regulations
to fulfil Norway’s administrative authority for broadcasting and
local broadcasting, etc. The ministry may lay down
further rules
concerning the tasks of the Mass Media Authority.”















The King also has powers to
order broadcasters to carry announcements from government authorities
“where such announcements are
of major importance” (section 2:4).
He also has the power to determine content both by way of
disallowing it or ordering it.
He determines the commercial
fortunes of broadcasters by his sweeping powers to regulate
advertising and sponsorship (Chapter 3:1-4).







The only time the Mass Media
Authority has licensing powers is when it comes to local/community
broadcasting. In terms of Chapter
7:1, the Mass Media Authority:-







“shall grant licences for the
operation of local broadcasting services. The Ministry shall
appoint a Licensing Council which gives
the Mass Media Authority
advice and recommendations in connection with the allocation of
licences for local broadcasting services.
The Ministry shall
determine the mandate and composition of the Licensing Council.”










The
Norwegian Act confers more powers of control on a government Minister
than the Zimbabwean Act.











Complaints against any
broadcaster are handled by the Complaints Committee for Broadcasting
Programmes which, in terms of Chapter
5:1 of the Broadcasting
Regulations, is appointed by the responsible Ministry.






UNITED
STATES OF AMERICA


The
Broadcasting Industry of the United States is regulated by the
Federal Communications Commission (FCC) that was established by
the
Communications Act of 1934. The FCC describes itself as “an
independent United States government agency”. Appointment
to the
five-member Commission is by the United States President “by and
with the advice and consent of the Senate” and lasts
for five
years. Appointments are for full-time service. Commissioners have
to be citizens of the US and are required to take
an oath of office.
The US President also appoints one of the Commissioners to serve as
Chairperson and Chief Executive Officer
of the Commission.
Significantly three Commissioners out of five “may be members of
the same political party.” Its budget
comes directly from
Congress. The FCC is the licensing authority with powers to revoke
licences as well as to receive representations
from the public. It
has the powers to review and adjust application fees. In
discharging its functions, the Commission may elect
to delegate some
of its responsibilities to a panel of commissioners.






SWEDEN


In
terms of the Swedish Radio and Television Act (1996), Sweden has two
licensing Authorities, namely the Swedish Government which
licences
non-state (public broadcasters are excluded) national and
international broadcasters; and the Radio and Television Authority
which licences community broadcasters. The Government is assisted
by the Broadcasting Commission which is “a state authority”
similar to the Broadcast Authority of Zimbabwe to “examine” and
ensure content compliance for radio and television programmes.

Specifically, Chapter 2 sub-section 2 of the Act reads:-







“Licences to broadcast
television programmes and licences to broadcast sound radio
programmes throughout Sweden or to other countries
are issued by the
Government.”










Thus
in Sweden licences are issued by a political organ and not an
independent authority.







Chapter 9(3) of the Act requires
that the Broadcasting Commission which is constituted by Government
consist of a chairman and six
other members, with deputies also being
determined by Government. The same subsection requires that the
Chairman and the Vice-Chairman
“be active or former professional
judges.”



The same Act requires that all
broadcasters carry announcements “which are of importance for the
general public, without charge,
if requested by a public authority,”
a provision similar to section 11 and the Fifth Schedule.







Equally, broadcasters are
required “to prepare a contingency plan for the operations during a
high-level alert in conjunction with
severe national stresses in
peacetime and submit the plan to the Government and to a public
authority determined by the Government.”






MALAYSIA


The
Malaysian Broadcasting Industry is governed by the Communications and
Multimedia Act (1998) and Malaysian Communications and Multimedia
Commission Act (1998). Section 6 on the Communication and
Multimedia Commission Act provides that:-







“The Commission shall consist
of the following members who shall be appointed by the Minister:







  1. a
    Chairman;








  1. a
    member representing the Government; and











  1. No
    less than two but no more than three other members”.
















Section 12 of the same Act
provides for the following:-







“(1) The Minister may at any
time revoke the appointment of any member of the Commission without
assigning any reason therefore.







  1. A
    member of the Commission may, at any time, resign from his
    appointment by giving a notice in writing to the Minister.”











Section
18 adds:-















“(1) The Commission shall be
responsible to the Minister.







  1. The
    Minister may give to the Commission directions of a general
    character not inconsistent with the provisions of this Act relating
    to the performance of the functions and powers of the Commission and
    the Commission shall give effect to such directions.”
















The Communication and Multimedia
Act 1998/Act 588 clearly puts the Minister before the Communications
and Multimedia Commission which,
in terms of section 7 of the Act,
must operate on the basis of “directions” from the Minister which
must be kept in a register.
In terms of the Malaysian Act the
Minister “may, from time to time, determine any matter specified in
this Act as being subject
to Ministerial determination, without
consultation with any licensees or persons”.







The same Act, in terms of section
30, makes the Minister of Energy, Communications and Multimedia the
licensing authority, with the
Commission playing an administrative
and advisory role as spelt out in the preceding section. It reads:-







“(1) The Minister shall have
due regard to the recommendation of the Commission given under
section 29 before making a decision.







  1. The
    Minister may, acting on the recommendation of the Commission, by
    written notice –








  1. grant
    an individual licence in accordance with the provisions of this
    Part; and








  1. declare
    that an individual licence granted under this Part be subjected to
    special or additional conditions.”













The
Minister is also responsible for renewing licences (section 34) and
also for their revocation (sections 37-38).







It is apparent from the above
that the Malaysian Act confers on the Minister a lot more power than
does the Zimbabwean Act.





SOUTH
KOREA


In
South Korea the Broadcasting Act No 6139 of January 12th 2000
regulates the private (public broadcasters are excluded) broadcast
industry in South Korea. It creates a nine-member Korean
Broadcasting Commission which is appointed by the President of the
Republic
of Korea, from among those persons with specialized
expertise and who are representatives of different fields of society”
(Article
21(1)). Article 21(2) enjoins the President to appoint
three persons from the nine “who are recommended by the Speaker of
the
National Assembly after consulting with the assembly men
representing each negotiating party of the National Assembly and
three persons
who are recommended by the Speaker of the National
Assembly in consideration of their expertise with respect to
broadcasting and
ability to represent the viewers.” In making
these recommendations, the Speaker is required to present the
criteria and grounds
for recommendation. Significantly, Article
24(1) considers all the members “public officials in political
service.”







To protect the independence of
the Commission, Article 26 provides that a member shall not be
subject to any external direction or
interference with his duty, and
shall not be dismissed from his office contrary to his consent except
for stated offences. Article
9(1) makes the Minister of Information
and Communication the licensing authority. It reads:-







“… a person who intends to
operate a terrestrial broadcasting business or satellite broadcasting
business shall, upon receiving the recommendation
of the Korean
Broadcasting Commission, obtain a licence from the Minister of
Information and Communication for a broadcasting station
as
prescribed by the Radio Waves Act.”










The
same also goes for cable broadcasters. Renewal of licences is also
done by the Minister of Information and Communication as
is also the
revocation.






AUSTRIA


The
Broadcasting scene for non-state actors in Austria is governed by the
Federal Act on the Establishment of an Austrian Communications
Authority (“KommAustria”) and a Federal Communications Board.
In terms of the Austrian Act, broadcast affairs are regulated
by two
bodies, KommAustria or Austrian Communications Authority which
licences and regulates all broadcasters, and the Federal
Communication
Board which controls and supervises the State-owned
Austrian Broadcasting Corporation.







Section 3 of the Act provides for
the constitution and management of KommAustria:-







“(1) KommAustria shall consist
of one Director and the requisite number of staff.







  1. The
    appointment of the Director and deputy Director shall be preceded by
    a public invitation to apply for the position in accordance
    with
    section 3 of the Public Tender Act of 1989.








  1. KommAustria
    is an authority directly subordinate to the Federal Chancellor. As
    regards its external business practice, it is an
    independent
    authority.”















Section 6 of the Austrian Act
firmly places KommAustria under control of the Federal Chancellor by
underlining that all broadcast
matters “shall lie with the Federal
Chancellor.”






SOUTH
AFRICA


The
Independent Communications Authority of South Africa Act 2000
establishes the Independent Communications Authority of South Africa,
(ICASA) that regulates the Broadcasting Industry. Section 3
provides that ICASA shall be:-







“independent and subject only
to the Constitution and the law and must be impartial and must
perform its functions without fear, favour
or prejudice. The
Authority must function without any political or commercial
interference.”











Significantly, the South African
Act protects IBA from interference from government and political
parties. In terms of its constitution
and appointment of members,
the ICASA Act provides for the appointment to Council of seven
councillors appointed by the President
on the recommendation of the
National Assembly according to the following principles:-







  1. participation
    by the public in the nomination process;


  2. transparency
    and openness; and


  3. the
    publication of a shortlist of candidates for appointment, with due
    regard to subsection (3) and section 6.








The President appoints one of the
councillors as Chairperson of the Council. In terms of section
5(3):-







“Persons appointed to the
Council must be persons who –







  1. are
    committed to fairness, freedom of expression, openness and
    accountability on the part of those entrusted with the governance
    of
    a public service; and








  1. when
    viewed collectively –







  1. are
    representative of a broad cross-section of the population of the
    Republic; and








  1. possess
    suitable qualifications, expertise and experience in the fields of,
    amongst others, broadcasting and telecommunications
    policy,
    engineering, technology, frequency band planning law, marketing,
    journalism, entertainment, education, economics, business
    practice
    and finance or any other related expertise or qualification.”











A unique feature of the South
African Act is section 5(4) which requires that appointed
councillors:-







“must take an oath or affirm
that he or she -







  1. is
    committed to fairness, freedom of expression, openness and
    accountability; and








  1. will
    uphold and protect the constitution and the laws of the Republic,
    including this Act and the underlying statutes.”











Among persons disqualified as
councillors are public servants, members of parliament, any
provincial legislature or any municipal
council and office bearers or
employees of any party, movement or organisation of a political party
nature (section 6(c)(d)(e).







The tenure of office of
councillors is protected by section 8(2)(3) which provides that
removal from office is only after investigations
by the National
Assembly; adoption by the same Assembly of a resolution calling for
the removal of a councillor; adoption of that
resolution by the
President who then removes the councillor.







ICASA is the licensing authority.


CANADA


The
Canadian Broadcasting Industry is governed by The Canadian
Radio-television and Telecommunications Commission Act and the
Broadcasting
Act. The broadcasting sector comes under the regulatory
authority of Canadian Radio-television and Telecommunications
Commission
(CRTC).







The CRTC is constituted in terms
of subsections 3 of the Canadian Radio-television and
Telecommunications Commission Act. It is
constituted by not more
than thirteen full-time members and not more than six part-time
members all of whom are appointed by the
Governor in Council. In
terms of the same section a member shall hold office during good
behaviour for a term not exceeding five
years but may be removed at
any time by the Governor in Council for cause.




Subsection 7(2) expressly
bolsters the independence of the CRTC when it comes to issuing
licences. It states that “No order may
be made under subsection
(1) in respect of the issuance of a licence to a particular person or
in respect of the amendment, renewal,
suspension or revocation of a
particular licence”. What is more, subsection (5) requires that
an order to the Commission by the
Governor in Council should “be
laid before each House of Parliament on any of the first fifteen days
on which that House is sitting
after the making of the order.”
The order itself is made after the responsible Minister has consulted
with the Commission and
once made, it has to be gazetted.







The responsible Minister has
powers to issue directions to the Commission in situations where he
is appealed to by an aggrieved broadcaster
with a sustainable case.
However, the directive would have to be gazetted and brought before
each House of Parliament within the
first fifteen days of sitting.







Ownership and responsibilities
for the broadcasting system is vested in Canadians by operation of
the law. Thus the Canadian Broadcasting
Act, 1991 provides in
section (3) that:-







“(a) the Canadian broadcasting
system shall be effectively owned and controlled by Canadians;











(b) the Canadian broadcasting
system operating primarily in the English and French languages and
comprising public, private and community
elements, makes use of radio
frequencies that are public property and provides, through its
programming, a public service essential
to the maintenance and
enhancement of national identity and cultural sovereignty;











  1. the
    Canadian broadcasting system should, (i) serve to safeguard, enrich
    and strengthen the cultural, political, social and economic
    fabric
    of Canada; (ii) encourage the development of Canadian expression by
    providing a wide range of programming that reflects
    Canadian
    attitudes, opinions, ideas, values and artistic creativity by
    displaying Canadian talent in entertainment programming
    and by
    offering information and analysis concerning Canada and other
    countries from a Canadian point of view.












  1. the
    programming provided by the Corporation should, (i) be predominantly
    and distinctively Canadian; (ii) reflect Canada and its
    regions to
    national and regional audiences, while serving the special needs of
    those regions; (iii) actively contribute to the
    flow and exchange
    of cultural expression; (iv) be in English and French reflecting
    the different needs and circumstances of each
    official language
    community, including the particular needs and circumstances of
    English and French; (v) contribute to shared
    national consciousness
    and identity; (vi) be made available throughout Canada by the most
    appropriate and efficient means and
    as resources become available
    for the purpose; and (vii) reflect the multicultural nature of
    Canada.”














ITALY







The Italian Act No 249 of 31 July
1997 governs the private (non-state) broadcasting sector and creates
the Italian Communications
Regulatory Authority (AGCOM) and provides
that AGCOM be “fully autonomous and independent in its judgments
and evaluations”.
AGCOM which has eight Commissioners, is
appointed by both the Senate of the Republic and the Chamber of
Deputies, each electing
four Commissioners who are “subsequently
appointed by a decree of the President of the Republic.” Equally,
the President of
the Authority is “appointed by a decree of the
President of the Republic on the proposal of the President of the
Council of Ministers
in agreement with The Ministry of
Communications”. This appointment would have to be confirmed by
the competent Parliamentary
Commissions. The authority is
accountable to Parliament.





NEW
ZEALAND


The
Broadcasting Act of 1989, as amended, governs the private (non-state)
broadcasting sector and sets up the Broadcasting Standards
Authority.
Four members of the authority are appointed by the New Zealand
Governor-General, on the recommendation of the Minister
of
Broadcasting. One member is appointed after consultation with the
broadcasters and another after consultation with public interest
groups. The authority reports to Parliament through the Minister of
Broadcasting.





The
licensing function is largely taken for granted and deemed done, with
emphasis laid on code and standard enforcement, research
and
planning.





FRANCE



In France the
broadcasting industry is controlled by a college known as
Counsel
Superieur de l’audiovisuel

(CSA), which is “an independent administrative authority” meant
to guarantee broadcast freedom in France by regulating private
broadcasters (non-state). CSA has nine councillors nominated for
six years by Presidential decree. Three of these members including
the President are designated by the French President, three by the
President of the Senate and three by the President of the National
Assembly. CSA issues broadcasting licences to private radio and
television companies. In terms of content, its accent falls on
“defending France’s cultural sovereignty” within the context of
European integration. CSA sees the broadcasting media as
“a
democratic necessity” but maintains that “freedom, however, goes
hand in hand with responsibility. On the basis of the
latter, it
regulates programming content.





The
above comparison of similar legislation in other jurisdictions
reveals that there is very little original in the Zimbabwean
Act.
The Zimbabwean Act is modelled largely on the British Broadcasting
Act of 1990 as amended and the Australian Broadcasting
Services Act
of 1992. Thus, generally speaking, the provisions in the Zimbabwean
Act are to be found in similar legislation in
other jurisdictions.






Constitutions
of many Commonwealth countries, including the Constitution of
Zimbabwe, explicitly provide for derogation of a fundamental
right.
Such derogation has to be in terms of the law that satisfies the
criteria I have referred to earlier on. Apart from satisfying
the
said criteria such law must also be
reasonably
justifiable in a democratic society
.
What is reasonably justifiable in a democratic society is elusive
of a precise definition.
20






In its determination of what is
reasonably justifiable in a democratic society the court has to bear
in mind that there is always
the presumption of constitutionality in
favour of legislation.






Thus in
Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd

1983 (2) ZLR 376 GEORGES CJ (as he then was) had this to say at pp
382E – 383F:-






“We
were referred to the case of
Attorney-General
of Trinidad and Tobago v Ramesh Mootoo

(1974) 28 WIR 304 in which the matter was canvassed by HYATALI CJ.
He cited from a number of cases which in my view indicates the
process plainly. Thus in
Crowell
v Benson

(1931) 285 US 22 at 62 HUGHES CJ stated:






‘When the validity of an Act
of congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is
a cardinal principle that this
court will first ascertain whether a construction of the statute is
fairly possible by which the question
may be avoided.’






Again in Black
on
The
Construction and Interpretation of Laws
(1911)
p 110 para 41H is cited as follows:






‘Every Act of the legislature
is presumed to be valid and constitutional until the contrary is
shown. All doubts are resolved
in favour of the validity of the
Act. If it is fairly and reasonably open to more than one
construction, that construction will
be adopted which will reconcile
the statute with the Constitution and avoid the consequence of
unconstitutionality.’






Because the
person alleging unconstitutionality must establish it, a burden may
rest on that person to establish factually that an
act does not fall
within the ambit of constitutionality. Many neo-Nigerian
constitutions permit derogation from the declared rights
defined
provided that these derogations are, to use the phrase in the
Zimbabwean Constitution, ‘reasonably justifiable in a democratic
society’. Even where the Constitution does not make it clear
where the
onus
lies as the Zimbabwe Constitution does, the
onus
lies on the challenger to prove that the legislation is not
reasonably justifiable in a democratic society and not on the State
to
show that it is. In that sense there is a presumption of
constitutionality. As LORD FRASER OF TULLYBELTON stated in
Attorney-General
& Anor v Antigua Times Ltd

[1975] 3 All ER 81 at 90:






‘In some cases it may be
possible for a court to decide from a mere perusal of an Act whether
it was or was not reasonably required.
In other cases the Act will
not provide the answer to that question. In such cases has evidence
to be brought before the court
of the reasons for the Act and to show
that it was reasonably required? Their Lordships think that the
proper approach to the question
is to presume, until the contrary
appears or is shown, that all Acts passed by the Parliament of
Antigua were reasonably required.’






In that sense
the presumption represents no more than
the
Court adopting the view that a legislature, elected by universal
adult suffrage and liable to be defeated in an election, must
be
presumed to be a good judge of what is reasonably required or
reasonably justifiable in a democratic society. But situations
can
arise even in such societies in which majorities oppress minorities,
and so the Declaration of Rights prescribes limits within
which
rights may be restricted. It is only in cases where it is clear
that the restriction is oppressive that the Court will interfere.
”
(underlining is mine)










In Nyambirayi’s
case, supra,
this Court reiterated and expanded on this approach. In this regard
GUBBAY CJ, (as he then was) at p 12G-13E, had this to say:-







“In
Woods
& Ors v Minister of Justice & Ors

1994 (2) ZLR 195 (S); 1995 (1) SA 703 (ZS); 1995 (1) BCLR 56 (ZS)
this court emphasised that an abridgment of a guaranteed right
should
not be arbitrary or excessive. It was said at 199B-C, 706E-F and
59C-D respectively:







‘What is reasonably justifiable
in a democratic society is an elusive concept. It is one that
defies precise definition by the courts.
There is no legal
yardstick, save that the quality of reasonableness of the provision
under attack is to be adjudged on whether
it arbitrarily or
excessively invades the enjoyment of the guaranteed right according
to the standards of a society that has a proper
respect for the
rights and freedoms of the individual.’






From a procedural aspect the onus
is on the challenger to establish that the enactment under attack
goes further than is reasonably justifiable in a democratic society
and not on the State to show that it does not. See
Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd

1983 (2) ZLR 376 (S) at 382
in
fine
– 383A; 1984
(2) SA 778 (ZS) at 783H. The standard of proof is a preponderance
of probability.






In
effect the court will consider three criteria in determining whether
or not the limitation is permissible in the sense of not being
shown
to be arbitrary of excessive. It will ask itself whether:






  1. the
    legislative objective is sufficiently important to justify limiting
    a fundamental right;








  1. the
    measure designed to meet the legislative objective are rationally
    connected to it; and








  1. the
    means used impair the right or freedom are no more than is necessary
    to accomplish the objective.”











I agree with the above approach.
This Court has to be satisfied that the impugned provisions are
arbitrary oppressive and, consequently,
not justifiable in a
democratic society before striking down such a provision as
unconstitutional.







I will now turn to deal with the
impugned sections in the order they are set out in the draft order.






IS
SECTION 4(2) AND (3) REASONABLY JUSTIFIED IN A DEMOCRATIC SOCIETY
?


Section
4 of the Act provides as follows:-



“4.1 The operations of the
Authority shall, subject to this Act, be controlled and managed by a
board to be known as the Broadcasting
Authority of Zimbabwe Board.







4.2 Subject to subsection (3),
the Board shall consist of not fewer than five members and not more
than nine members appointed by
the Minister after consultation with
the President and in accordance with any directions that the
President may give him.








    1. In
      appointing the members of the Board the Minister shall endeavour to
      ensure that members are representative of groups or sectors
      of the
      community.








4.4 Third
Schedule shall apply to the qualifications of members of the Board,
their terms and conditions of office, vacation of office,
suspension
and dismissal, and the procedure to be followed by the Board at its
meetings.”





Section
4(1) provides for the establishment of the Broadcasting Board (the
Board). It is not impugned and there is nothing controversial
about
it. Section 4(2) provides that the Board should consist of not
fewer than five members and not more than nine members appointed
by
the Minister after consultation with the President and in accordance
with any directions that the President may give. Section
4(3)
provides that in appointing members of the Board the Minister shall
endeavour to ensure that members are representative of
groups or
sectors of the Community.







The challenge
to section 4 and 6 of the Act was based on the lack of independence
from government control of the regulating authority
created under the
Act and the undue influence of the Minister in the licensing process.
Mr
de
Bourbon

submitted that sections 4 and 6 ensures that the responsible
Minister, the second respondent, remains firmly in control of the
licensing
process and the Broadcasting Authority. He further
submitted that the Minister retains ultimate licensing power to
issue, renew,
amend and suspend, or cancel licences. In essence Mr
de
Bourbon’s

contention is that the Broadcasting Authority, as constituted in
terms of section 4, does not provide sufficient independence for
that
body and consequently is unconstitutional. In support of this
proposition Mr
de
Bourbon
cited
the case of
Athukorale
supra
.
I accept that
Athukorale’s
case,
supra
is
authority for the proposition that a regulating authority that is
unduly dependent on the government is unconstitutional. In
determining whether a provision creates a dependent or independent
regulating authority the standard three tier test enunciated in
Nyambirayi’s
case,
supra,
provides no guidance as that test does not deal with independence or
lack of it of a regulating authority. A comparison of this
section
with provisions found in other jurisdictions is therefore
instructive.








This
section, as already pointed out, is very similar to section 1(2) of
the British Broadcasting Act [Chapter 42] of 1990 which
provides that
the Independent Television Commission shall consist of a Chairman and
a deputy Chairman appointed by the Secretary
of State and such other
members appointed by the Secretary of State, not being less than
eight nor more than ten as he may, from
time to time, determine.
Similarly the Australian Broadcasting Services Act 1992 creates the
Australian Broadcasting Authority
as the licensing and regulating
authority. The Australian Broadcasting Authority consists of seven
members all appointed by the
Governor-General without any reference
to any other body or persons outside governmental structures. In
Australia the Governor-General
and the Minister for Communications,
Information, Technology and Arts have other controlling powers that I
have already adverted
to in the analysis of the Australian Act above.






In Ireland, as already indicated,
members of the regulating authority are appointed by government
through the responsible Minister.
The government has power to
remove a member of the regulating authority for state reasons.





In
Norway the King and the Minister have very wide powers including
those of making appointment to the regulating authority.





In
the United States appointments to the regulating authority are made
by the President with the advice and consent of the Senate.

Similarly in Sweden, Malaysia, South Korea, Canada and New Zealand
the government makes appointments to the regulating authority.





In
South Africa the government’s power to appoint members of the
Independent Communications Authority of South Africa is seriously
circumscribed by statutory provisions that seek to enhance the
plurality of the regulating authority.





In
France and Italy more than one arm of government controls the
appointments to the regulating authority.





It
is quite apparent from the foregoing that section 4 of the Act is
modelled on provisions existing in countries that are generally
considered as democratic.






As I have
already stated in impugning section 4 and section 6 the applicant
relied on the Sri Lankan case of
Athukorale
and Ors v Attorney-General, supra
.
It is argued that the authority created under section 4 of the Act
was not sufficiently independent of government control and,
therefore, unconstitutional.







The facts in
the
Athukorale’s
case,
supra,
are these:
On 21
March 1997 the Sri Lanka Broadcasting Authority Bill was published in
the Sri Lanka Government Gazette, and was subsequently
placed on the
order paper of the Sri Lankan Parliament. The Bill was intended to
make provision for the establishment of a new
authority, the Sri
Lanka Broadcasting Authority, to regulate the establishment and
maintenance of broadcasting stations and to provide
for the issuance
of licences for that purpose. Clauses 3(1), (4), 5(g), 7(7), 10,
11, 17 and 19 of the Bill contained provisions
to enable the proposed
authority to supervise, direct and control the content of programmes
to be broadcast and to provide for the
control of the authority by
government appointees and for the vesting in the minister of powers
to remove the chairman and members
of the board and to prescribe
guidelines to be followed by licensees. The petitioners, by
application under art 126 of the Constitution
of Sri Lanka, invoked
the jurisdiction of the Supreme Court to determine whether the Bill
or any of its provisions was inconsistent
with the Constitution and,
in particular, Article 14(1)(a) of the Sri Lankan Constitution which
provided that every citizen was entitled
to freedom of speech and
expression including publication.






Section
3 of the Bill whose constitutionality the court was called upon to
determine provided as follows:-





“3 (1) The
administration, management and control of the affairs of the
Authority shall be vested in a Board of Directors (hereinafter
referred to as ‘the Board’) consisting of the following:-






  1. six
    ex
    officio

    members, namely –







  1. the
    Secretary to the Ministry of the Minister in charge of the subject
    of Information and Broadcasting or his representative;







  1. the
    Secretary to the Ministry of the Minister in charge of the subject
    of Defence or his representative;







  1. the
    Secretary to the Ministry of the Minister in charge of the subject
    of Posts and Telecommunications or his representative;





  1. the
    Secretary to the Ministry of the Minister in charge of the subject
    of Education and Cultural Affairs or his representative;







  1. the
    Secretary to the Treasury or his representative;







  1. the
    Chairman, National Film Corporation of Sri Lanka; and




  1. five
    other members appointed by the Minister, at least two of whom shall
    be persons who have had experience in the field of broadcasting.
    A
    member appointed under this section is hereinafter referred to as
    ‘an appointed member’ of the Board.







(2) …”





The
Sri Lankan Supreme Court was dissatisfied with the above provision
and observed:-






“Having
regard to the limited availability of broadcasting frequencies, the
regulation of broadcasting was necessary to ensure the
adequate
coverage of issues and to prevent the monopolistic domination of the
frequency spectrum by the government or by a few individuals.
On
that basis regulation did not violate the right to freedom of speech
but rather advanced it by serving the interests of the
whole
community and giving listeners and viewers the opportunity to
consider a range of points of view. However, in order to safeguard
the fundamental right of freedom of thought and expression, the
regulatory body had to be independent of the government.
In
the instant case, the regulatory body envisaged by the Bill clearly
lacked that independence, since its members were government
appointees with no security of tenure, and it was obliged to follow
directions given by the minister
.
Moreover, the Bill would empower the minister to interfere with the
presentation of programmes and commercial advertising, which
would
undermine the principles of fairness, infringe the public right to
information and deprive certain broadcasters of sponsorship
income
was legally unacceptable …”



(underlining is mine)







The Court was of the view that
section 3 of the Sri Lankan Bill did not provide for such an
independent regulating authority and
concluded:-






“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 the appointed
members and having regard to the power of the Minister to give
direction 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.”








Section
3 of the Bill identified the appointees to the regulating authority
through their offices and these were government officials
subject to
government control, therefore, incapable of being independent of
government. Section 4 of the Act merely creates the
regulating
authority and identifies the Minister as the person who appoints
members of the authority. Someone has to make the appointments
to
the authority. Section 4 does not identify who should be appointed
to the authority. It merely provides for the number of
appointees
and who makes the appointment. The persons to be appointed are not
identified in such a manner as to leave the Minister
without choice
but to appoint people dependant on the government as was the case in
Athukorale’s
case,
supra.
Athukorale’s
case,
supra,
is certainly distinguishable from this case. The provisions of
section 3 of the Sri Lankan Bill are very different from section
4 of
the Act.






On
this basis I am satisfied that section 4(2) and (3) creates a
regulating authority that cannot be said to be overly dependent
on
government and, therefore, unconstitutional. I am, therefore,
satisfied that the challenge to section 4(2) and (3) of the Act
should be dismissed.






However, the same cannot be
said of section 6 of the Act. Section 6 seriously undermines the
independence of the regulatory authority.
Section 6 of the Act
makes the Minister the licensing authority. While in terms of the
Act the authority processes the applications
for a broadcasters
licence, section 10(1) of the Act confers on the Minister unfettered
power to veto the granting of a license by
the authority. This in
effect revokes the regulating authority’s power to issue licences
and confers it on the Minister. In
my view the above quoted remarks
of the Sri Lankan Supreme Court in
Athukorale’s
case,
supra,
apply with
equal force to section 6 as read with section 10(1) of the Act.






I
accordingly hold the view that section 6 of the Act is
unconstitutional because it totally subordinates the regulating
authority
to the Minister in the process of granting of broadcasting
licences.







I now turn to deal with the next
section that the applicant seeks to have declared unconstitutional.
The applicant seeks, in paragraph
1(c) and (d) of its draft order to
have section 8 subsections (1), (2) and (5) and section 22(2)
declared unconstitutional.







The above sections provide as
follows:-



“8. Persons
disqualified to be licensed



(1) Subject to subsection (3), a
broadcasting licence shall be issued only to individuals who are
citizens of Zimbabwe and ordinarily
resident in Zimbabwe or to a body
corporate in which a controlling interest is held, whether through
any individual, company or association
or otherwise, by one or more
individuals who are citizens of Zimbabwe and ordinarily resident in
Zimbabwe.







(2) For the purposes of
subsection (1) ‘controlling interest’ means -







  1. all
    of the securities in the body corporate; or







  1. securities
    representing all of the share capital of the body corporate; or







  1. securities
    equivalent in value to one hundred
    per
    centum

    of the share capital of the body corporate; or







  1. securities
    entitling the holders thereof to all the votes in the affairs of the
    body corporated.






…






(5) No
applicant that is a body corporate shall be qualified to be licensed
if any one person holds or controls more than ten
per
centum
of the
securities in that body corporate.






…



22.2 No person other than a
citizen of Zimbabwe ordinarily resident in Zimbabwe shall be a
director of a licensee.”







Paragraph 2 of the applicant’s
Founding Affidavit provides as follows:-






“The applicant is a company
duly incorporated with limited liability according to the laws of
Zimbabwe, having as its main object the
purpose of carrying on a
broadcasting service within Zimbabwe. Its address for service for
the purposes of this application is
that of its undermentioned legal
practitioners of record, Messrs Honey & Blanckenberg, 51 Samora
Machel Avenue Harare.”











There is no averment anywhere in
the founding affidavit that the applicant is controlled by a foreign
interest and might fail to obtain
a licence on that basis. There is
nothing on the papers to indicate that the applicant has been, is, or
is likely to be, affected
by the provisions of section 22. Indeed
section 22 of necessity can only refer to natural persons. The
applicant is a company
or an artificial person incapable of being a
director of another company. There is no suggestion that anybody
wishing to be a director
of the applicant has been, in some way,
hindered by the provisions of section 22. Given these facts I do
not see how the applicant
can be adversely affected by section 8.
The applicant does not fall under any of the persons disqualified
under this section.







In the case of United
Parties v The Minister of Justice, Legal and Parliamentary Affairs &
Ors
1997 (2) ZLR 255
(S) this Court set some guidelines on what constitutes
locus
standi
in
constitutional applications in terms of section 24(1) of the
Constitution. In that case the applicant, an opposition political
party, sought to challenge the constitutionality of sections 25(1),
26(5) and 158(2)(c) of the Electoral Act on the basis that these
provisions abridged the protection of freedom of expression contained
in s 20(1) of the Constitution. The party also sought to
challenge
the constitutionality of section 3 of the Political Parties (Finance)
Act [Chapter 29:04] on the basis that this provision
contravened the
constitutional protections of freedom of expression and assembly.
As regards the challenge to sections 25(1) and
26(5) of the Electoral
Act this Court held:-







“That
the applicant had no
locus
standi
in
judicio
to bring the
matter before the Supreme Court. In terms of s 24(1) of the
Constitution
an
applicant has
locus
standi
to seek
redress where there has been a contravention of the Declaration of
Rights in relation to himself
.
The applicant must be able to show a likelihood that it would be
affected by the law impugned. It has no right to seek redress
either on behalf of the general public or anyone else. The
applicant was not entitled to carry the torch for claimants and
voters
generally. The impugned provisions related to individuals
who were claimants or voters. A political party could be neither a
claimant nor a voter and thus it had no
locus
standi
in this matter.







On the authority of the United
Parties
case, supra,
I am satisfied that the applicant has no
locus
standi
to challenge
sections 8(1),(2),(5) and 22(2).







The applicant next seeks to have
section 9 of the Act declared unconstitutional. Section 9 of the
Act provides as follows:-







“9. Restrictions
in relation to the issue of certain licences







(1) Only one licence to provide
a national free-to-air radio broadcasting service and one licence to
provide a national free-to-air
television broadcasting service shall
be issued in addition to the national broadcasting services provided
by any public broadcaster.







(2) Only one signal carrier
licence shall be issued to a person other than a public broadcaster.







(3) With the exception of a
public broadcaster, a broadcasting licence and a signal carrier
licence shall not be issued to the same
person.”











I have no doubt that the
applicant has
locus
standi
to challenge
this section for a number of reasons. The applicant is applying for
a radio broadcasters licence. Section 9(1) permits
the granting of
only one licence to provide a national free-to-air broadcasting
service. This limitation to one licensee no doubt
must affect the
applicant’s prospects of success in its endeavour to obtain a
broadcasting licence. The more the licences are
available for issue
the better the prospects of success for the applicant. The
limitation by statute to one licence to provide
a national
free-to-air broadcasting service smacks of the State wishing to
monopolise the airwaves.






In
the case of
Capital
Radio v Minister of Information Posts and Telecommunications

SC-99-2000 this Court issued a declarator part of which provided as
follows:-



“1. The monopoly on
broadcasting services created by section 27 of the Broadcasting Act
[Chapter 12:01] is inconsistent with section
20(1) of the
Constitution of Zimbabwe and is therefore invalid insofar as it vests
in the Zimbabwe Broadcasting Corporation the exclusive
privilege of
carrying on a broadcasting service in Zimbabwe;







2. Sections 14(1) and 19(2) of
the Radiocommunication Services Act [Chapter 12:04] are inconsistent
with section 20(1) of the Constitution
of Zimbabwe and are,
therefore, invalid insofar as those provisions prohibit any person,
other than the Zimbabwe Broadcasting Corporation,
from possessing or
working a radio station for the purpose of carrying on a broadcasting
service in Zimbabwe.”






Section 27 of the Broadcasting
Act that was struck down in the above case is strikingly similar to
section 9(1) of the Act which is
being challenged. It reads:-







“27. No person other than the
Corporation shall carry on a broadcasting service in Zimbabwe.”





Mr
de Bourbon,
has argued that section 9 of the Act seeks to entrench a monopoly in
the same way as section 27 of [Chapter 12:01] that was struck
down as
unconstitutional in the
Capital
Radio (Pvt) Ltd
case,
supra. I
agree with this submission. Section 9(1) and also (2) of the Act
create monopolies, which on the authority of
Capital
Radio (Pvt) Ltd, supra
,
are unconstitutional. I do accept that airwaves are a finite
resource and that the State has to observe international restrictions
when allocating the frequencies. I also believe that there is merit
in the contention that the allocation of frequencies should
be
entrusted to an independent regulating authority which, no doubt,
will take into account the constraints relating to the limited
frequencies available.






Section 9(3) does not, in my
view, create a monopoly. It merely provides that no person should
be a holder of both a broadcasting
licence and a carrier licence.
If anything that section militates against monopoly. The
applicant’s attack on this subsection
appears in paragraphs 18.6.3
to 18.6.6 which provide as follows:-







“18.6.3 It does not follow,
however, that separation of producing and transmitting functions is
of benefit to anyone. Broadcasters
like Capital Radio are fully
able to produce and transmit their own content and regard this as the
full realisation of its right
to freedom of expression.









      1. It
        is submitted that there is no discernible benefit to citizens in
        the imposition of these provisions. There is no good or
        cogent
        reason for this split in function, and it is difficult to see the
        reason for the inclusion of these provisions in the
        Act.












      1. It
        is Applicant’s submission that once again the only benefit that
        accrues is to the government and the ruling party in that
        they can
        now not only control who receives a broadcasting licence (which in
        effect becomes merely a programme producing licence),
        but they can
        also control the transmitting companies. This means that if a
        broadcaster was to become objectionable to them
        they could stop
        the service at the transmission company because this would be a
        completely different entity.











      1. It
        is Applicant’s submission that the infringement to its right to
        freedom of expression is clear. It is not being given
        the right
        to be in control of the entities that would produce and transmit
        its material as is the case with most other broadcasters
        in the
        democratic world. This infringement has no discernible benefit
        to citizens and only seems to benefit the Second Respondent’s
        thirst for control. Therefore the harm is completely
        disproportionate to the negligible benefits.”









The respondents’ response to
the applicant’s contention is found in paragraph 49 of the opposing
affidavit which, in part, provides:-







“49. Ad
paragraph 18.6







The decision to allow for one
other signal carrier licence other than the public broadcaster is
once again, to ensure economic viability
for both the public and the
private signal carrier. It is also justifiable on the grounds that
it will ensure simple and practical
policing by the First Respondent
to ensure compliance by both the signal carrier and broadcasters.”





The
main thrust of the applicant’s argument is that it is economically
better not to split the licences while the respondents
maintain the
opposite view. The provision no doubt abridges the applicant’s
freedom of expression. It certainly satisfies most
of the criteria
required for a law that abridges freedom of speech. The one
criteria that is debatable is whether the restriction
is reasonably
justifiable in a democratic society. As was stated in
Zimbabwe
Township Developers (Pvt) Ltd, supra
,
there is always a presumption of constitutionality in favour of an
Act and it is only, in cases where it is clear that the restriction
is arbitrary and oppressive, that the court can interfere. I am not
convinced this provision is clearly arbitrary and oppressive.

Section 9(3) of the Act may be undesirable from an economic point of
view but it is not clearly arbitrary and oppressive. There
is no
basis, therefore, for striking down section 9(3) of the Act. In any
event section 20 of the Constitution is about protecting
the freedom
of expression per se
and not on how to exercise that right in the most economically
advantageous manner.







The applicant also challenges the
constitutionality of sections 11(1) as read with para 9(1)(b) and (c)
of the Fifth Schedule, and
section 11(4), section 12(1)(f), (2) and
(3), sections 15 and 16. It is very clear that these provisions
regulate the conduct of
business by successful applicants and holders
of broadcasting licences. The applicant does not hold such a
licence. The applicant
has applied to this Court and to the
Broadcasting Authority for a broadcasting licence. This Court does
not have the jurisdiction
to grant such a licence. The Broadcasting
Authority has not granted the applicant a licence.







In the result I come to the
conclusion that section 4(2) and (3) and section 9(3) of the Act are
constitutional. Sections 6, 9(1)
and (2) are unconstitutional.
The applicant has not established
locus
standi
to challenge
all the other sections impugned as set out in the draft order.
Different judges have come to different conclusions
in respect of the
different sections of the Act that have been challenged. The net
result is as follows:







  1. The
    court unanimously finds that sections 4(2) and (3) are
    constitutional.


  2. The
    court unanimously finds that the applicant has no
    locus
    standi
    in
    judicio
    to challenge
    the constitutionality of section 11(1) as read with paragraph
    9(1)(b) and (c) of the Fifth Schedule.


  3. The
    Court unanimously finds section 6, sections 9(1) and (2)
    unconstitutional and are hereby struck down.


  4. The
    majority of the court finds section 9(3) unconstitutional and it is
    hereby also struck down.


  5. The
    majority of the court also hereby dismisses the application to have
    the following sections struck down as unconstitutional:




  1. sections
    8(1) and (2) and section 22(2)


  2. section
    8(5)


  3. section
    11(4)


  4. section
    12(1)(f)(2) and (3)


  5. section
    15 and 16







Costs normally follow the result.
In the present case both parties were partially successful and the
majority of the court has concluded
that equity demands that there be
no order as to costs.


















SANDURA JA:
I have read the judgment prepared by CHIDYAUSIKU CJ and agree
that sections 6, 9(1) and 9(2) of the Broadcasting
Services Act
[Chapter 12:06] (“the Act”) are inconsistent with s 20(1) of the
Constitution of Zimbabwe (“the Constitution”).
Secondly, I
agree that it has not been shown that sections 4(2) and 4(3) of the
Act contravene s 20(1) of the Constitution. Thirdly,
I agree, but
for a different reason, that the applicant does not have the
locus
standi in judicio

to challenge the constitutionality of s 11(1) of the Act, as read
with para 9(1)(b) and (c) of the Fifth Schedule to the Act. In
my
view, the only valid reason for the conclusion that the applicant
does not have the requisite
locus
standi

is that the conditions set out in para 9(1)(b) and (c) of the Fifth
Schedule only apply to a commercial television broadcasting licence.

They do not apply to a radio broadcasting licence which, according
to the applicant’s founding affidavit, is the type of licence
sought by the applicant. For the same reason, I agree that the
applicant does not have the locus
standi

to challenge the constitutionality of s 11(4)(b), which only affects
a television broadcasting licensee.






However, I
disagree with the conclusion that there is no basis for striking down
s 9(3) of the Act. In addition, I disagree with
the finding that
the applicant does not have the
locus
standi

to challenge the constitutionality of sections 8(1), 8(2), 8(5),
11(4)(a), 12(1)(f), 12(2), 12(3), 15, 16 and 22(2) of the Act.

Before dealing with the question of the applicant’s locus
standi
,
and determining whether the challenged provisions of the Act are
constitutional, I would like to set out very briefly the factual
background in this matter because I consider it relevant to the issue
of the applicant’s
locus
standi
.
I would also like to deal with the presumption of
constitutionality.





The
applicant is a company incorporated with limited liability in
accordance with the laws of Zimbabwe. Its main object is the
operation of a radio broadcasting service within Zimbabwe.





Shortly
after its incorporation, the applicant discovered that it could not
carry out its main object because in terms of s 27 of
the
Broadcasting Act [Chapter 12:01], now the Zimbabwe Broadcasting
Corporation Act [Chapter 12:01], the Zimbabwe Broadcasting
Corporation
(“the ZBC”) had an exclusive monopoly over
broadcasting services in Zimbabwe. In addition, ss 14(1) and 14(2)
of the Radiocommunication
Services Act [Chapter 12:04] specifically
prohibited any person, other than the ZBC, from possessing or working
a radio station for
the purpose of carrying on a broadcasting service
in Zimbabwe.





Consequently,
the applicant, acting in terms of s 24(1) of the Constitution, filed
a court application in this Court challenging
the constitutionality
of the aforementioned provisions in both Acts. It alleged that the
said provisions were inconsistent with
s 20(1) of the Constitution
and were, therefore, invalid. That contention was conceded by the
respondent in that application, who
is now the second respondent in
the present application.





Accordingly,
on 22 September 2000 this Court issued an order declaring that the
aforementioned provisions in both Acts were inconsistent
with s 20(1)
of the Constitution and were, therefore, invalid. In addition, the
Court declared that the applicant was entitled
under the law to
operate a broadcasting service in Zimbabwe. The relevant part of
the order reads as follows:-






“In the premises and for the
sake of clarity, it follows that:






  1. The
    applicant is entitled under the law to operate and provide a
    broadcast service from within Zimbabwe.







  1. The
    applicant is entitled under the law to import into Zimbabwe all
    radio and other equipment to operate a commercial radio station
    and
    to broadcast within and outside Zimbabwe, subject to the payment of
    all customs dues and import taxes lawfully levied in terms
    of the
    law, and to possess and utilise such broadcast equipment.”










See Capital
Radio (Pvt) Ltd v Minister of Information (1)

2000 (2) ZLR 243 (S) at 244B-C.





Subsequently,
the applicant imported one antenna and one transmitter, hired some
broadcasting equipment, and began broadcasting
on 28 September 2000.





Thereafter,
on 4 October 2000 the Presidential Powers (Temporary
Measures)(Broadcasting) Regulations, 2000 (“the Regulations”),
published in Statutory Instrument 255A of 2000, were promulgated.
These Regulations were subsequently replaced by the Act, which
was
promulgated on 4 April 2001 and came into effect on that day.





The
applicant’s contentions, as set out in its founding affidavit, are
that various provisions of the Act restrict its freedoms
of
expression and association, in contravention of sections 20(1) and
21(1) of the Constitution, and have the effect of restoring
the
monopoly in broadcasting which was struck down by this Court in
September 2000. It is further contended that the Act has taken
away
from the applicant its entitlement to operate a broadcasting service,
which was declared by this Court when the monopoly in
broadcasting
was struck down.






Having set
out the factual background, I would like to deal with the presumption
of constitutionality. In
Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd

1983 (2) ZLR 376 (S), 1984 (2) SA 778 (ZS), GEORGES CJ considered the
presumption of constitutionality and identified two meanings
of the
phrase. The first meaning is that where a party alleges that a
statutory provision is unconstitutional, the
onus
rests on him to show that it is, and the second meaning is that if
the challenged provision is capable of two or more interpretations,
one of which is consistent with the Constitution, the Court would
presume that the legislature intended to act constitutionally and
would uphold the challenged provision. Emphasising the fact that
the presumption has two meanings, the learned CHIEF JUSTICE said
the
following at 383E-F:-






“I approach the decision of
this matter on the basis that it is in these two senses and these two
senses alone that there is a presumption
of constitutionality”.










Commenting
on the first meaning of the presumption he said the following at
383A-E:-






“Even
where the Constitution does not make it clear where the
onus
lies, as the Zimbabwe Constitution does, the
onus
lies on the challenger to prove that the legislation is not
reasonably justifiable in a democratic society and not on the State
to
show that it is. In that sense there is a presumption of
constitutionality …





In
that sense the presumption represents no more than the Court adopting
the view that a legislature, elected by universal adult suffrage
and
liable to be defeated in an election, must be presumed to be a good
judge of what is reasonably required or reasonably justifiable
in a
democratic society. But situations can arise even in such societies
in which majorities oppress minorities, and so the Declaration
of
Rights prescribes limits within which rights may be restricted. It
is only in cases where it is clear that the restriction is
oppressive
that the Court will interfere.”









In my view, the learned CHIEF
JUSTICE was merely saying that the burden of proof rested on the
challenger, and that unless the challenged
provision was clearly
shown to be oppressive it would not be struck down. What he said
should not be interpreted to mean that before
the Court embarks upon
the enquiry as to whether a restriction is reasonably justifiable in
a democratic society it must be satisfied
that the restriction is
arbitrary and oppressive and cannot possibly be saved by the
presumption of constitutionality.









In any event, about twelve
years after the
Zimbabwe
Township Developers

case,
supra,
the Full Bench of this Court set out a three-part test which must be
satisfied by any restriction of a guaranteed right, before
such a
restriction can be said to be reasonably justifiable in a democratic
society, in
Nyambirai v
NSSA & Anor
1995
(2) ZLR 1 (S). At 13B-E GUBBAY CJ said:-






“From
a procedural aspect the
onus
is on the challenger to establish that the enactment under attack
goes further than is reasonably justifiable in a democratic society
and not on the State to show that it does not. See
Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd

1983 (2) ZLR 376 (S) at 382
in
fine
– 383A; 1984
(2) SA 778 (ZS) at 783. The standard of proof is a preponderance of
probability.






In effect the court will consider
three criteria in determining whether or not the limitation is
permissible in the sense of not being
shown to be arbitrary or
excessive. It will ask itself whether:






  1. the
    legislative objective is sufficiently important to justify limiting
    a fundamental right;











(ii) the measures designed to
meet the legislative objective are rationally connected to it; and






(iii) the means used (to) impair
the right or freedom are no more than is necessary to accomplish the
objective.






See R
v Oakes
(1986) 19 CRR
308 at 336-337 (a decision of the Supreme Court of Canada).”









That is the test which I shall
apply in determining whether the statutory provisions challenged by
the applicant in this case are
reasonably justifiable in a democratic
society.









However, because of the
importance of freedom of expression in a democratic society, the test
is to be applied strictly. As the
European Court of Human Rights
stated in
Thorgeir
Thorgeirson v Iceland

(1992) 14 EHRR 843, at para 63:-






“The
Court recalls that freedom of expression constitutes one of the
essential foundations of a democratic society … Freedom of
expression, as enshrined in Article 10, is subject to a number of
exceptions which, however, must be narrowly interpreted, and
the
necessity for any restrictions must be convincingly established

(emphasis added)









This application was brought in
terms of s 24(1) of the Constitution which, in relevant part, reads
as follows:-






“If any person alleges that the
Declaration of Rights has been, is being or is likely to be
contravened in relation to him … that
person … may apply to the
Supreme Court for redress.”









I now turn to the challenged
statutory provisions and consider whether the applicant has the
locus
standi
to challenge
them, and whether the provisions in question are consistent with the
Constitution.






  1. Subsections
    (1) and (2) of section 8







These read as follows:-









“(1) Subject to subsection (3),
a broadcasting licence shall be issued only to individuals who are
citizens of Zimbabwe and ordinarily
resident in Zimbabwe or to a body
corporate in which a controlling interest is held, whether through
any individual, company or association
or otherwise, by one or more
individuals who are citizens of Zimbabwe and ordinarily resident in
Zimbabwe.







  1. For
    the purposes of subsection (1) ‘controlling interest’ means –







  1. all
    the securities in the body corporate; or







  1. securities
    representing all of the share capital of the body corporate; or







  1. securities
    equivalent in value to one hundred
    per
    centum
    of the share
    capital of the body corporate; or







  1. securities
    entitling the holders thereof to all the votes in the affairs of the
    body corporate.”










The first issue to consider is
whether the applicant company has the
locus
standi
to challenge
these provisions. I have no doubt in my mind that it has. That is
so because prior to the enactment of the challenged
legislation it
was lawfully operating a radio broadcasting service and was carrying
out the commercial activities for which it had
been established. It
was exercising its freedom of expression and was unfettered by the
restrictive provisions in the two subsections
because they were
non-existent.









However, that situation changed
after the Act came into force because ss 8(1) and 8(2) preclude
foreigners and citizens of Zimbabwe
not ordinarily resident in
Zimbabwe from investing in the applicant. In fact, the provisions
impose a total prohibition on foreign
investment in the applicant,
which the applicant badly needs, thereby making it very difficult, if
not impossible, for the applicant
to venture into private
broadcasting and run a viable commercial radio station.









Emphasising its need for foreign
investment, the applicant avers as follows in the founding
affidavit:-






“The Regulations and the Act
have stultified Applicant’s attempts to obtain the lawful
wherewithal (i.e. money etc needed) to broadcast
…






None of the equipment used in
broadcasting can presently be manufactured in Zimbabwe and must thus
all be purchased outside the country
and is often quite expensive …
One must realise that these technologies are not indigenous to
Zimbabwe and Zimbabwean broadcasters
will have to purchase the
technology (which is prohibitively expensive, given the weakness of
the Zimbabwean currency) or will have
to offer equity to those who
produce it in order to obtain access to it.”









In the circumstances, the
applicant alleges that its freedom of expression has been abridged.
Quite clearly, in terms of s 24(1)
of the Constitution the applicant
has the requisite
locus
standi in judicio
to
challenge the constitutionality of ss 8(1) and 8(2) of the Act.









In my view, the fact that the
applicant did not, in its founding affidavit, state whether or not it
had foreign shareholders is
immaterial. That is so because even if
all its shareholders were Zimbabwean citizens ordinarily resident in
Zimbabwe, it would
still have the
locus
standi
to challenge
the provisions on the basis that the provisions do not permit it to
have the foreign shareholders it desperately needs
in order to
operate a viable commercial broadcasting service. Thus, any foreign
investment in the applicant, whether such investment
takes place
before the application for a radio broadcasting licence is made or
after the licence has been granted, would disqualify
the applicant
from being a licensee.









Quite clearly ss 8(1) and 8(2)
constitute a restriction on freedom of expression. The only issue
left for consideration is whether
the restriction is reasonably
justifiable in a democratic society. To determine that, I shall
apply the three-part test set out
in
Nyambirai’s
case, supra.









The
legislative objectives given by the second respondent are as
follows:-






“1. To create employment and a
source of income to Zimbabwean citizens, and therefore as a device to
protect the economic wellbeing
of the country.







  1. To
    ensure that the use of the broadcasting frequency spectrum, which
    belongs to Zimbabweans as a whole, is not owned and controlled
    by
    foreigners to the exclusion and detriment of Zimbabweans.







  1. To
    ensure compliance and monitoring of the provisions of the Act.







  1. For
    the defence and security of the country.”










I now wish to consider whether
the restriction is reasonably justifiable in a democratic society.









Are the legislative
objectives sufficiently important to justify a restriction of the
freedom of expression?



It seems to me that the second
and fourth objectives are, but the others are not.









Are the measures designed
to meet the legislative objectives rationally connected to them?



I do not think they are. In the
first place, there is no rational connection between the creation of
employment and the total prohibition
of foreign investment in private
broadcasting. In fact, permitting foreign investment in private
broadcasting would be more likely
to create employment for
Zimbabweans than a total ban of such investment.









Secondly, there is no rational
connection between forbidding non-resident citizens of Zimbabwe from
investing in private broadcasting,
and the legislative objective of
ensuring “that the use of the broadcasting frequency spectrum,
which belongs to Zimbabweans as
a whole, is not owned and controlled
by foreigners to the exclusion and detriment of Zimbabweans.” In
this regard, there is no
rational basis for treating non-resident
citizens differently from citizens who are ordinarily resident in
Zimbabwe.









Thirdly, there is no rational
connection between the total prohibition of foreign investment in
private broadcasting and the legislative
objective of ensuring
“compliance and monitoring of the provisions of the Act.”









Finally, there is no rational
connection between the total prohibition of foreign investment in
private broadcasting and the defence
and security of Zimbabwe. In
fact, the second respondent does not say in what way the two are
connected.









Are the means used to
impair the freedom of expression no more than is necessary to
accomplish the objectives?



I do not think so. In the first
place, there must be many other ways of creating employment for
Zimbabweans which do not involve
a limitation of freedom of
expression.









Secondly, the legislative
objective of ensuring that the airwaves are not controlled by
foreigners can be achieved without a total
prohibition of foreign
investment. In fact what the applicant seeks is not an abandonment
of control of the airwaves to foreigners,
but limited foreign
investment which is essential if private broadcasting is to be
viable.









Thirdly, the legislative
objective of ensuring compliance with the provisions of the Act can
be achieved without a total prohibition
on foreign investment.









Finally, the defence and security
of Zimbabwe can be maintained without a total prohibition of foreign
investment in private broadcasting.









In the circumstances, subsections
(1) and (2) of s 8 are not reasonably justifiable in a democratic
society, and are therefore in
breach of s 20(1) of the Constitution.









In addition, these provisions
contravene s 21(1) of the Constitution which guarantees freedom of
association. It is the applicant’s
constitutional right to
associate in business with any person it chooses.










  1. Section 8 (5)



This
section reads as follows:-






“No
applicant that is a body corporate shall be qualified to be licensed
if any one person holds or controls more than ten
per
centum
of the
securities in that body corporate.”












What this means is that the
only company which qualifies to apply for a licence is one which has
ten or more shareholders. Quite
clearly, this is a restriction on
freedom of expression.









For the reasons which I set out
when I considered the applicant’s
locus
standi
in respect of
ss 8(1) and 8(2), I am satisfied that the applicant has the
locus
standi
to challenge
the constitutionality of s 8(5). In addition, the fact that in its
founding affidavit the applicant did not state
that it has less than
the required minimum of ten shareholders is not fatal. That is so
because even if it has ten or more shareholders,
s 8(5) precludes it
from reducing that number to less than ten for whatever reason, even
if such a move might be absolutely necessary
for the company’s
survival. In that event the applicant might be compelled to give up
private broadcasting.









In the circumstances, the only
issue left for consideration is whether s 8(5) is reasonably
justifiable in a democratic society.









The legislative objective in
respect of this provision is set out by the second respondent as
follows:-






“The frequency spectrum is a
finite resource, which is owned by all Zimbabweans. Indeed, all
Zimbabweans must have the opportunity
to participate in the
utilisation, control and ownership of their resource. Restricting
the amount of equity that may be owned
by one shareholder is one way
of ensuring that as many Zimbabweans as possible participate in the
use of their product.”












I now wish to apply the
three-part test set out in
Nyambirai’s
case, supra.









Is the legislative
objective sufficiently important to justify a restriction on the
freedom of expression?


I
think it is.









Are the measures designed
to meet the legislative objective rationally connected to it?



I do not think they are. In my
view, there is no rational connection between the requirement that a
broadcasting company must have
at least ten shareholders, and the
legislative objective of ensuring that as many Zimbabweans as
possible “have the opportunity
to participate in the utilisation,
control and ownership of their resource.” The percentage of ten
is arbitrary.









Are the means used to
impair the freedom of expression no more than is necessary to
accomplish the legislative objective?



I do not think so. The
legislative objective could be achieved in other ways, such as
increasing the number of national broadcasting
licences.









In the circumstances, the
restriction in s 8(5) is not reasonably justifiable in a democratic
society, and is, therefore, in breach
of s 20(1) of the Constitution.










  1. Section 9(3)




This section reads as follows:-






“With the exception of a public
broadcaster, a broadcasting licence and a signal carrier licence
shall not be issued to the same person
…”












It was common cause that this
provision constituted a restriction on freedom of expression. The
only issue was whether the restriction
was reasonably justifiable in
a democratic society. That is the issue which I should now
determine by applying the test set out
in
Nyambirai’s
case,
supra.









Are the legislative
objectives sufficiently important to justify limiting the fundamental
right to freedom of expression
?



The legislative objectives in
respect of this provision are set out by the second respondent in his
opposing affidavit as follows:-









“I do not understand how the
applicant or any other broadcaster will be prejudiced by this
provision. If anything, it is extremely
beneficial to them in that
they are relieved of the huge expenditures involved in constructing
broadcasting studios, acquiring and
importing expensive antennas and
transmitters, and employing staff on a permanent basis to maintain
it. In the scenario envisaged
by the Act, the signal carrier, will
provide all the expensive aspects of broadcasting listed above, and
will, in all probability,
provide studios, cameras, etc. All the
broadcaster will need to do is walk into an equipped studio, and
commence broadcasting on
the frequency allocated to them. This
makes great economic sense both to the country and to the individual
broadcaster. The country
is spared the burden of repetitively
buying and importing equipment using scarce foreign currency, and the
individual broadcasting
licensee enjoys the benefits of … low-cost
broadcasting.”












Thus, the main objectives given
by the second respondent for the restrictive provision in s 9(3) are
(1) to ensure low-cost broadcasting;
and (2) to save foreign
currency.









It is pertinent to note that s
9(3) imposes a very serious limitation on the broadcaster’s freedom
of expression in that it places
the broadcaster at the mercy of the
signal carrier licensee.









In my view, the above
objectives are not sufficiently important to justify the limitation
of a fundamental right to freedom of expression.
The importance of
freedom of expression should never be under-estimated. It lies at
the foundation of a democratic society and
is one of the basic
conditions for its progress and for the development of every man:
In
re Munhumeso & Ors

1994 (1) ZLR 49 (S) at 56F-H.









Is the measure designed to
meet the legislative objectives rationally connected to them
?



In my view, there is no rational
connection between the legislative objectives of s 9(3) set out
above, and the measure designed to
meet them. There can be no
rational connection between the objectives of providing low-cost
broadcasting and saving foreign currency,
and the measure designed to
meet those objectives, i.e. the requirement that a private
broadcasting licence and a signal carrier
licence shall not be issued
to the same person.









Are the means used to
impair the freedom of expression no more than is necessary to
accomplish the objectives
?



Put differently, the question is
whether the restrictive provision in s 9(3) is the least drastic
means by which the stated objectives
of the section may be
accomplished. I have no doubt in my mind that the answer to that
question is a negative one. There must
be many other ways of
achieving the stated objectives which are less drastic than limiting
the fundamental right to freedom of expression.









In the circumstances, I am
satisfied that the restriction in s 9(3) is not reasonably
justifiable in a democratic society and is,
therefore, in breach of s
20(1) of the Constitution.









IV. S
11(4)



This reads as follows:-






“Not
less than ten
per
centum
of total
programming content broadcast by any licensee shall be –






  1. in
    any of the national aboriginal languages other than Shona and
    Ndebele; and







  1. in
    the case of a television broadcasting licensee, in a manner that may
    be understood by audiences who have a hearing impairment.”













Quite clearly, the applicant has
the
locus standi
to challenge the constitutionality of s 11(4)(a). Although it has
not yet been issued with a radio broadcasting licence, it has
indicated its intention to apply for one and if that application
succeeds the applicant’s freedom of expression would be restricted,
in contravention of s 20(1) of the Constitution. The Declaration of
Rights is, therefore, likely to be contravened in relation
to it.









However, in respect of s
11(4)(b), I am satisfied that the applicant does not have the
requisite
locus standi
to challenge the constitutionality of that provision. That is so
because s 11(4)(b) affects a television broadcasting licensee
only,
and the applicant has not indicated that it intends to apply for a
television broadcasting licence.









As I am satisfied that s 11(4)(a)
constitutes a restriction on freedom of expression, I proceed to
consider whether the restriction
is reasonably justifiable in a
democratic society.









The legislative objective set out
by the second respondent in respect of this provision is to cater for
minority language groups.
I now wish to subject that objective to
the three-part test.









Is the legislative
objective sufficiently important to justify a restriction on the
freedom of expression?



I think it is.






Are the measures designed
to meet the legislative objective rationally connected to it?



I do not think so. There is no
rational connection between the requirement that at least ten
per
centum
of the total
programming content broadcast by a licensee shall be in any of the
national aboriginal languages other than Shona and
Ndebele, and the
legislative objective of ensuring that minority language groups are
catered for. The determination of the percentage
of ten is not
rational but arbitrary.









Are the means to impair the
freedom of expression no more than is necessary to accomplish the
objective?



I do not think so. In my view,
there are other ways of achieving the legislative objective without
imposing a restriction on the
private broadcaster’s freedom of
expression. For example, the ZBC, with four national radio
broadcasting stations and one national
television broadcasting
station, could easily cater for the needs of the minority language
groups. It seems to me that this area
should be the preserve of the
public broadcaster which relies upon public funds. In any event,
private broadcasters are in business
to make profits for their
shareholders, and it may not be within their business plan to cater
for minority language groups.









In the circumstances, s
11(4)(a)is not reasonably justifiable in a democratic society and is,
therefore, in breach of s 20(1) of
the Constitution.









V. S
12(1)(f)



This reads as follows:-






“(1) A licence shall be in the
prescribed form and shall specify -







  1. – (e)
    …; and







  1. the
    sources and manner of funding of the licensee.”













In my view, the applicant has the
locus standi
to challenge the constitutionality of this provision. It has
indicated its intention to apply for a radio broadcasting licence
but
genuinely fears that the requirement that the licence itself should
specify such confidential information would create a chilling
effect
and scare its donors who might fear being victimised. The provision
is, therefore, a restriction on freedom of expression.
The only
issue for consideration is whether the provision is reasonably
justifiable in a democratic society.









The legislative objective for
this provision is set out by the second respondent as follows:-






“The requirement indicating
sources of funding is essential … The Broadcasting Authority, in
assessing the suitability of a client,
must be convinced on the
financial position and stability of an applicant. It must also be
able to ascertain the genuineness and
authenticity of the financial
statement given to it. If the source and manner of funding is not
stated, how will the authority
be able to ascertain this?






The financial stability of an
applicant is absolutely essential to enable the First Respondent to
ensure that the licences are not
given to persons who cannot possibly
commence operations in terms of their licences, and therefore seek to
obtain a licence for speculative
and profit-making purposes. The
provision is meant to ensure stability and continuity of broadcasting
services. This provision
also assists the First Respondent in
ensuring that the other provisions of the Act have been complied
with. For example, provisions
relating to cross-ownership …
This ensures transparency in the process, and ensures that the public
can readily ascertain whether
the persons who have a direct interest
in the allocation of licences … secretly and corruptly try and
benefit from the process.”












Thus, the main objectives given
by the second respondent for the restrictive provision in s 12(1)(f)
are: (1) to assist the Broadcasting
Authority (“the Authority”)
in assessing the suitability, financial position and stability of an
applicant for a licence; (2)
to assist the Authority in ascertaining
the genuineness and authenticity of the financial statement given to
it by an applicant;
(3) to ensure that licences are not issued to
persons for speculative and profit-making purposes; (4) to ensure
the stability and
continuity of broadcasting services; (5) to assist
the Authority in ensuring that the other provisions of the Act, such
as those
relating to cross-ownership, have been complied with; and
(6) to ensure transparency in that the public can readily ascertain
whether
the persons who have a direct interest in the allocation of
licences secretly and corruptly try to benefit from the process.









I will now consider whether the
restriction in s 12(1)(f) is reasonably justifiable in a democratic
society. I will apply the
three-part test already referred to in
this judgment.









Are the legislative
objectives sufficiently important to justify a restriction on the
freedom of expression
?



Quite clearly they are not. As
already stated, freedom of expression constitutes one of the
essential foundations of a democratic
society. It is so important
that it cannot be restricted on the basis of the objectives given by
the second respondent and which
I have set out above.









Are the measures designed
to meet the legislative objectives rationally connected to them
?



In my view, they are not.
Firstly, there is no rational connection between the objective of
assisting the Broadcasting Authority
in assessing the suitability,
financial position and stability of an applicant, and the requirement
that the licence must specify
the sources and manner of funding of
the licensee.









Secondly, there is no rational
connection between the objective of assisting the Authority in
ascertaining the genuineness and authenticity
of the financial
statement given to it by an applicant, and the requirement that the
licence must specify the sources and manner
of funding of the
licensee. The genuineness of the financial statement can be
determined by an examination of the applicant’s
assets and bank
account. The sources of the funds are irrelevant in that exercise.









Thirdly, there is no rational
connection between the objective of ensuring that licences are not
issued to persons for speculative
and profit-making purposes, and the
requirement that the licence must specify the sources and manner of
funding of the licensee.









Fourthly, there is no rational
connection between the objective of ensuring the stability and
continuity of broadcasting services,
and the requirement that the
licence should specify the sources and manner of funding of the
licensee.









Fifthly, there is no rational
connection between the objective of assisting the Authority in
ensuring that the other provisions
of the Act have been complied
with, and the requirement that the licence should specify the sources
and manner of funding of the
licensee.









Finally, there is no rational
connection between the objective of ensuring that the persons who
have a direct interest in the allocation
of licences do not secretly
and corruptly benefit from the process, and the requirement that the
licence should specify the sources
and manner of funding, bearing in
mind that there are many ways of disguising identity.









Are the means to impair the
freedom of expression no more than is necessary to accomplish the
objectives
?



In my view, the answer to this
question is a negative one. I am satisfied that there are other
ways of achieving the legislative
objectives set out above which do
not bring about a limitation on the freedom of expression. For
example, the financial position
of an applicant can be determined by
examining the applicant’s assets and bank account. In that
exercise, the identity of the
person who supplied the assets or the
money in the bank account is irrelevant.









In the circumstances, the
restriction in s 12(1)(f) is not reasonably justifiable in a
democratic society and is, therefore, in
breach of s 20(1) of the
Constitution.









VI Sections
12(2) and 12(3)



S 12(2) provides that a licence,
other than a community broadcasting licence, shall be valid for a
period of two years, and s 12(3)
provides that a community
broadcasting licence shall be valid for a period of one year. In my
view, these provisions constitute
a restriction on the freedom of
expression.









That is so because the very short
licence duration exerts a serious chilling effect on freedom of
expression in at least two ways.
Firstly, it discourages
prospective investors from setting up a broadcasting service, as they
avoid taking the risk of the licence
not being renewed and sustaining
heavy financial losses. Secondly, the constant need to have the
licence renewed every year or
every two years seriously compromises
the editorial independence of the licensees, bearing in mind that
there is no presumption in
favour of licence renewal as is the case
in other countries.









Having said that, I would like
to deal with the applicant’s
locus
standi
. In my view,
the applicant has the
locus
standi
to challenge
both provisions.









With regard to s 12(2), the
applicant has indicated that it intends to apply for a national radio
broadcasting licence. If that
application succeeds, the applicant
will be bound by s 12(2) and the restriction on freedom of expression
will apply to it. Quite
clearly, the applicant has the
locus
standi
to challenge
the provision in terms of s 24(1) of the Constitution on the basis
that its right to freedom of expression is likely
to be contravened.









As far as s 12(3) is concerned,
although the applicant did not indicate in its founding affidavit
that it intended applying for a
community radio broadcasting licence,
in its answering affidavit it stated that it was in effect keeping
open its options as to whether
or not to seek a community radio
broadcasting licence. I am, therefore, satisfied that it has the
locus standi
to challenge s 12(3) in terms of s 24(1) of the Constitution, again
on the basis that its right to freedom of expression is likely
to be
contravened.









In any event, both s 12(2) and
s 12(3) specify the duration of radio broadcasting licences, one
being a national broadcasting licence
and the other being a community
broadcasting licence. But both licences are for the purpose of
furthering the applicant’s main
object, which is the operation of a
radio broadcasting service. In addition, ss 12(2) and 12(3) are so
intertwined and the duration
of each licence is so short that it
would be impossible to determine the constitutional validity of s
12(2) without in effect determining
the constitutional validity of s
12(3).









I now wish to set out the
legislative objectives of ss 12(2) and 12(3) before determining
whether the two provisions are reasonably
justifiable in a democratic
society.









In respect of s 12(2), the
legislative objectives given by the second respondent are as
follows:-









“to ensure compliance with the
Act;



to raise revenue for the State,
and therefore, the public;






to encourage competitiveness and
therefore the provision of a high-quality service.”












In respect of s 12(3), the
legislative objective is set out by the second respondent as
follows:-






“… the
purpose of a community broadcasting licence is to allow certain
communities the right within specific licence areas, to broadcast
to
their respective communities. We have thousands of communities in
our country, which are very diverse, and sometimes have conflicting
interests … The State has an obligation to allow each and every
community in this country to express themselves, but can only
do
that in the context of the limited frequencies that are available
within Zimbabwe. Therefore,
restricting
the validity of a community broadcasting licence to just one year,
non-renewable, is one way of ensuring that at some
point every
community will have had the opportunity to broadcast

(emphasis added)












Quite clearly, the second
respondent is labouring under the misapprehension that a community
broadcasting licence is non-renewable.
It is pertinent to note that
s 14, which deals with renewals, does not say that.









Nevertheless, I will now
consider whether the restriction on freedom of expression imposed by
ss 12(2) and 12(3) is reasonably justifiable
in a democratic society.









Are the legislative
objectives sufficiently important to justify a restriction on the
freedom of expression
?



In my view, the legislative
objectives in respect of s 12(2) are not, but those in respect of s
12(3) may be.









Are the measures designed
to meet the legislative objectives rationally connected to them
?



There can be no doubt that they
are not. In respect of s 12(2), it is pertinent to note that the
second respondent does not say
how the short licence duration of two
years ensures compliance with the Act, or assists in raising revenue
for the State, or encourages
competitiveness and the provision of
high quality broadcasting services.









Similarly, in respect of s
12(3) the second respondent does not say why a licence duration of
one year, as opposed to a longer period,
for community radio
broadcasting would ensure “that at some point every community will
have had an opportunity to broadcast.”









Are the means to impair the
freedom of expression no more than is necessary to accomplish the
objectives
?



In my view, the means are
certainly more than is necessary to accomplish the legislative
objectives. I say so because there are
other ways of achieving the
legislative objectives which would not bring about a limitation on
the freedom of expression. For example,
the police can ensure that
a licensee complies with the Act.









In the circumstances, the
restriction on freedom of expression in terms of ss 12(2) and 12(3)
is not reasonably justifiable in a
democratic society. Accordingly,
the statutory provisions in question are in breach of s 20(1) of the
Constitution.










  1. SECTIONS 15 AND 16




S 15(1) gives the second
respondent the power to amend a licence or any term or condition of a
licence for various reasons, after
consulting the Broadcasting
Authority of Zimbabwe (“the Authority”) and giving the licensee
an adequate opportunity to make representations
in the matter in
terms of s 15(2).









Similarly, s 16(1) gives the
second respondent the power to suspend or cancel a licence for
various reasons, after consulting the
Authority and giving the
licensee seven days within which to make representations in the
matter in terms of s 16(2). In addition,
s 16(3) provides that
after receiving the licensee’s representations the second
respondent shall, if in his opinion that course
is justified, request
the Authority to institute a public inquiry for the purpose of
determining whether or not the licence should
be suspended or
cancelled.









In addition to that, s 16(5)
provides that if at the conclusion of the inquiry, and on the basis
of the recommendation of the Authority,
the second respondent is
satisfied that the licence should be suspended or cancelled, he shall
suspend or cancel the licence or take
such other action as he
considers appropriate.









Quite clearly, the applicant
has the requisite
locus
standi
to challenge
both sections, as it alleges that its right to freedom of expression
is likely to be abridged.









In my view, sections 15 and 16
are in breach of s 20(1) of the Constitution because they give to the
second respondent, who is a
Government Minister, the power to amend,
suspend or cancel licences. It is well established that such
regulatory powers should
be exercised by independent regulatory
bodies which are free from political interference. The reason for
this requirement is obvious.
A politician may be tempted to use his
regulatory powers to deprive those private broadcasters perceived to
be critical of the
government and its policies of their licences and
freedom of expression.









In addition, s 15(1)(c) and
(d), and s 16(1)(h) constitute a restriction on freedom of expression
for a different reason.









Subsections(1)(c) and (1)(d) of
s 15 read as follows:-



“Subject to this section, the
Minister, after consulting the Authority, may at any time amend a
licence or any term or condition of
a licence –






(a) – (b) …; or






(c) if the Minister considers the
amendment necessary to reflect the true nature of the service, system
or business which the licensee
is conducting; or






(d) if for any other reason the
Minister considers the amendment necessary or desirable in the public
interest.”













And s 16(1)(h) reads as follows:-






“Subject to this section, the
Minister, after consulting the Authority, may suspend or cancel any
licence if there is evidence that
–






  1. – (g)
    …; or







  1. the
    licensee has acted in a manner prejudicial to the defence, public
    safety, public order, public morality or public health of
    Zimbabwe.”













Whilst it is correct that certain
restrictions on the freedom of expression are saved by s 20(2) of the
Constitution, it is only those
that are authorised by law which are
saved. In my view, the restrictions in s 15(1)(c) and (d) and s
16(1)(h) are not authorised
by law.









In Chavunduka
& Anor v Minister of Home Affairs & Anor

2000 (1) ZLR 552 (S) at 560E-561C, this Court considered the meaning
of the phrase “under the authority of any law” and said
the
following:-









“The phrase ‘under the
authority of any law’ is worded differently from such equivalent
phrases as ‘provided by law’, ‘prescribed
by law’ or ‘in
terms of law’, used in other constitutional and human rights
instruments … Yet the meaning of these phrases
is substantially the
same …






In The
Sunday Times v The United Kingdom

(1979-80) 2 EHRR 245, the European Court of Human Rights was required
to consider what was meant by the expression ‘prescribed
by law’
in article 10(2) of the Convention on Human Rights. The majority of
the court held at 271 (para 49):






‘In the court’s opinion, the
following are two of the requirements that flow from the expression
‘prescribed by’. First, the
law must be adequately accessible:
the citizen must be able to have an indication that is adequate in
the circumstances of the legal
rules applicable to a given case.
Secondly, a norm cannot be regarded as a ‘law’ unless it is
formulated with sufficient precision
to enable the citizen to
regulate his conduct: he must be able – if need be with
appropriate advice – to foresee, to a degree
that is reasonable in
the circumstances, the consequences which a given action may entail
…’






It is crucial, therefore, that
the law must be accessible and formulated with sufficient precision
to enable a person to regulate
his conduct.”












In my view, the provisions in
sections 15(1)(c) and (d) and 16(1)(h) do not pass the above test.
The grounds on which the second
respondent may amend, suspend or
cancel a licence are vague and imprecise, and give the second
respondent an unlimited discretion
to interfere with licences.









Accordingly, the said
restrictions do not fall into the category of those “under the
authority of any law”, and are, therefore,
not saved by s 20(2) of
the Constitution.










  1. S 22(2)




This section provides that no
person other than a citizen of Zimbabwe ordinarily resident in
Zimbabwe shall be a director of a licensee.









In my view,
the applicant has the
locus
standi

to challenge the constitutionality of this provision for the same
reasons that it has the
locus
standi

to challenge s 8(1) and (2). For the reasons that I gave when I
dealt with the constitutionality of s 8(1) and (2), I find that
s
22(2) is in contravention of s 20(1) of the Constitution. It has
the same effect as a total prohibition on foreign investment
in
private broadcasting, which the applicant badly needs.





In
addition, s 22(2) is in contravention of s 21(1) of the Constitution
which guarantees freedom of association. It is the applicant’s
constitutional right to associate in business with any person it
chooses.





Finally,
I wish to point out that after this Court reserved its judgment in
this matter, the Broadcasting Services Amendment Act
No. 6 of 2003
was promulgated. This Act amended and repealed some of the sections
in the principal Act which had been challenged
by the applicant.
The views I have expressed in this judgment do not take into account
the recent changes to the principal Act.




In the circumstances, I would
have issued the following order:






  1. The
    following provisions of the Broadcasting Services Act [Chapter
    12:06] are unconstitutional and are hereby struck down;




  1. Section
    6;


  2. Section
    8(1),(2) and (5);


  3. Section
    9(1),(2) and (3);


  4. Section
    11(4)(a);


  5. Section
    12(1)(f),(2) and (3);


  6. Section
    15;


  7. Section
    16; and


  8. Section
    22(2)








2. The costs of this application
shall be borne by the first and second respondents, jointly and
severally, the one paying the other
to be absolved.












CHEDA JA : I have read the
judgment prepared by CHIDYAUSIKU CJ and that prepared by SANDURA JA.





I
agree with them that sections 6, 9(1) and 9(2) of the Broadcasting
Services Act [Chapter 12:06] (“the Act”), are inconsistent
with
section 20(1) of the Constitution of Zimbabwe (“the Constitution”).






I also agree
with the conclusions of the two concerning sections 4(2) and 4(3)
which have not been shown by the applicant to contravene
section
20(1) of the Constitution. As for sections 8(1),(2) and (5) and
section 22(2) I agree with CHIDYAUSIKU CJ, that it is up
to the
applicant to establish its
locus
standi

to challenge that section. The applicant has not made its position
clear regarding its status and how it is affected by these
provisions.
If its composition falls within the prohibited
conditions, or if its securities do, then it has not stated that in
order to put
itself within the ambit of section 24(1) of the
Constitution. I would conclude, as does the CHIEF JUSTICE, that its
locus
standi

has not been established.






It is difficult to see how
these provisions can be said to stultify the applicant’s attempts
to obtain money needed to broadcast
and equipment when the applicant
says it has been previously broadcasting. There is no averment as
to how the equipment it has
was obtained or that it was a result of
foreign investment. The securities held by the applicant have not
been disclosed and it
is not known how they are structured.





I
agree with SANDURA JA that section 9(3) places a serious limitation
on freedom of expression by the restriction that a broadcasting
licence and a signal carrier licence should not be issued to the same
person. This means the one party may stifle the other’s
freedom
of expression if it refuses to co-operate. This is certainly an
unjustified restriction and it interferes with the applicant’s
freedom of expression. It should be struck down.






Section
11(1) in conjunction with section 9(b) and (c) of the Fifth Schedule
are also challenged. These provisions relate to television
licences
while the applicant is applying for a radio broadcasting licence.
The applicant has no
locus
standi

to challenge them.





As
for section 11(4) there seems to be no good basis for challenging a
provision intended to benefit the public. The challenge
should be
dismissed.





The
applicant also challenged section 12(1)(f)(2) and (3). Subsection
(1)(f) requires that the source and manner of funding be
specified in
the licence. No reason is given for this. This is the sort of
information that can be required on the application
form for a
licence instead of being on the licence itself.





It
is not the broadcaster that issues the licence. If the licensing
authority will have that information by the time it issues
the
licence it is up to it to include it. There is no duty on the
applicant as it does not issue the licence to itself.





On
the other hand, if there is no provision in the Act for such
information to be provided by the applicant there is no basis for
having such information on the licence.





However,
it is for the licensing authority to obtain the information and I do
not find it to be inconsistent with section 20(1)
of the Constitution
to require such information in view of the provisions of section 8.





Section
12(2) provides that a licence, other than a community broadcasting
licence, shall be valid for a period of two years.





It
is difficult to understand how a person or company can be expected to
acquire what the second respondent accepts is expensive
equipment in
the form of antennas and transmitters in order to broadcast just for
two years. This is most discouraging as there
is no guarantee of
renewal. This provision clearly acts as a deterrent to those who
may wish to set up as broadcasters. It is
a serious interference
with the right and freedom of expression.





It
is not necessary for the court to consider what period can be said to
be acceptable or constitutional.






In the case
of
United
Parties v Minister of Justice

1997 (2) ZLR 254 (S) this Court dealt with a similar point regarding
the threshold set for political parties to qualify for financial
assistance. The provision was struck down because the threshold was
too high, without having to state what was constitutional or
acceptable. This decision follows the one in the Canadian case of
Barrette
& Payette v A-G Canada

(1993) 14 CRR (2
nd)
166.






Section
12(3) refers to a community broadcasting licence whose validity is
for a period of one year. I consider that the applicant
has no
locus
standi

to challenge this section as it is not applying for a community
broadcasting licence.





Sections
15 and 16 give the Minister power to amend or cancel a licence where
he considers it necessary to do so.





Sub-sections
2 to 5 provide the procedure to be followed in the event that the
Minister wishes to exercise powers given him by section
15 and 16.





In
my view there is provision for a fair hearing and there is no breach
of the provisions of section 20 of the Constitution.





Accordingly
the following sections, as listed in the Draft Order, are to be
struck down:






Para (b) section 6;


Para
(e) 9(1), 9(2) and 9(3);


Para
(h) 12(1)(f), (2) and (3)





The
rest of the application is dismissed.





















MALABA JA:
The applicant (“Capital Radio”) had made a direct
application to this Court in terms of s 24(1) of the
Constitution of Zimbabwe (“the Constitution”) for an order
declaring specific sections of the Broadcasting Services Act
[
Chapter 12:06]
(“the Act”) unconstitutional and struck down on the ground that
the provisions thereof are violative of the right to freedom
of
expression enshrined in s 20(1) of the Constitution, in
particular that they are restrictions to the enjoyment of that
freedom
by broadcasting which are not reasonable in a democratic
society. The impugned provisions of the Act are listed in the draft
order
referred to in the CHIEF JUSTICE’S opinion. The
applicant contends that the licensing system created and enforced
through
the impugned provisions regulating access to the use of the
airwaves as a medium of communication is violative of freedom of
expression.





The
respondents contend that the impugned provisions of the Act are
constitutional, in that not only do they clear the technological
impediments to broadcasting but they also promote and ensure that the
physically limited broadcasting facilities placed in the hands
of a
few broadcasters are used in the public interest.






The first
and second respondents also put in issue the
locus
standi

of Capital Radio to challenge the constitutionality of certain
of the provisions of the Act mentioned in the draft order, making
it
necessary to determine the question whether Capital Radio
complied with the requirements of s 24(1) of the Constitution
to
the effect that a person seeking to apply to the Court for redress
must allege that the impugned provisions of the Act violate,
have
violated or are likely to violate specific declaration of a right in
relation to himself.





CONSTITUTIONALITY
OF THE REGULATION OF BROADCASTING





I
take the question of the constitutionality of the regulation of
broadcasting as a medium of communication.





In
challenging the whole licensing system created by Parliament to
regulate through the Act broadcasting as a medium of mass
communication
on the ground that it violates freedom of expression,
Capital Radio assumes that a broadcaster has a right of freedom
of expression
as such secured to him in s 20 of the Constitution
in the same way a speaker or a writer enjoys that freedom.





Capital
Radio overlooked the fact that broadcasting is a special medium
through which people exercise their freedom of expression,
that is to
say, to transmit and receive information in the free market place of
ideas. Unlike the one-to-one communication or the
paper upon which
the writer expresses himself to the readers, broadcasting as a medium
of communication has inherent or natural physical
limitations, making
it impossible for all those who would want to use it to do so.





The
number of frequencies upon which broadcasting technology depends to
convey the information or ideas communicated are limited,
such that
if broadcasting facilities are to be effectively exploited as a
medium of communication only a few people can use the limited
number
of airwaves available. If anyone who wished to broadcast had a
right to use any frequency regardless of whether there was
interference with a prior user a situation would be reached where all
spoke without hearing each other. That would be a sure road
to
chaos and anarchy.






This
situation would have occurred in this country following the striking
down of the public monopoly of broadcasting by the decision
in the
Capital
Radio

case
supra.
In the name of the exercise of freedom of expression, many like
Capital Radio would have rushed to use the limited airwaves
for
television, radio and other forms of communication, thereby choking
the medium to no-one’s benefit.





The
history of broadcasting legislation in the United States of America
illustrates the effect a free-for-all access to the use
of
broadcasting facilities would have had on freedom of expression. It
also shows that regulation of the broadcasting industry
is the only
way by which Government can fulfil its constitutional obligations to
guarantee the enjoyment of freedom of expression
by members of the
public through this powerful medium of mass communication.





Before
the enactment of the Communications Act 1934, which prohibited radio
broadcasting without a licence issued by the Federal
Communications
Commission, the legislation in the United States had allowed almost
free access to broadcasting facilities regardless
of whether a
particular frequency had a prior user and there was interference with
his communication.






In National
Broadcasting Co v United States

319 US 190 MR JUSTICE FRANKFURTER, delivering the opinion of the
Supreme Court of the United States, said at 212-213:






“These new stations used any
frequencies they desired, regardless of the interference thereby
caused to others. Existing stations
changed to other frequencies
and increased their power and hours of operation at will. The
result was confusion and chaos. With
everybody on the air, nobody
could be heard. …





The
plight into which radio fell prior to 1927 was attributable to
certain basic facts about radio as a means of communication –
its
facilities are limited; they are not available to all who may wish to
use them; the radio spectrum simply is not large enough
to
accommodate everybody. There is a fixed natural limitation upon the
number of stations that can operate without interfering
with one
another. Regulation of radio was therefore as vital to its
development as traffic control was to the development of the
automobile!”





At
p 214 His Lordship said:






“… in order to protect the
national interest involved in the new and far-reaching science of
broadcasting, Congress ‘formulated a unified
and comprehensive
regulatory system for the industry’.”






In Federal
CC v Pottsville Broadcasting Co

309 US 134 MR JUSTICE FRANKFURTER had pointed out that, in enacting
the Communication Act 1934:






“Congress moved under the spur
of a widespread fear that in the absence of governmental control the
public interest might be subordinated
to monopolistic domination in
the broadcasting field. To avoid this Congress provided for a
system of permits and licenses. Licenses
were not to be granted for
longer than three years. No license was to be ‘construed to
create any right, beyond the terms, conditions
and periods of the
license’.”






Lastly, in
Red
Lion Broadcasting Co v FCC

395 US 367 MR JUSTICE WHITE delivered the opinion of the Supreme
Court of the United States on the same subject in these words at
387-389:






“Although broadcasting is
clearly a medium affected by a First Amendment interest, differences
in the characteristics of news media
justify differences in the First
Amendment standards applied to them.






When two people converse face to
face, both should not speak at once if either is to be clearly
understood. But the range of the
human voice is so limited that
there could be meaningful communications if half the people in the
United States were talking
and the other half listening. Just
as clearly, half the people might publish and the other half read.
But the reach of radio
signals is incomparably greater than the range
of the human voice and the problem of interference is a massive
reality. The lack
of know-how and equipment may keep many from the
air, but only a tiny fraction of those with resources and
intelligence can hope
to communicate by radio at the same time if
intelligible communication is to be had, even if the entire radio
spectrum is utilised
in the present state of commercial, acceptable
technology.







It was this fact, and the chaos
which ensued from permitting anyone to use any frequency at whatever
power level he wished, which
made necessary the enactment of the
Communication Act 1934. …







Where there are substantially
more individuals who want to broadcast than there are frequencies to
allocate, it is idle to posit an
unbridgeable First Amendment right
to broadcast comparable to the right of every individual to speak,
write or publish. … It
would be strange if the First Amendment,
aimed at protecting and furthering communications, prevented the
Government from making
radio communications possible by requiring
licenses to broadcast and by limiting the number of licenses so as
not to overcrowd the
spectrum.”







The use of regulations is
therefore essential to efficient broadcasting facilities.







What happened prior to the
enactment of the Act was that the Government of Zimbabwe had, by
means of the licensing system, made communication
by television and
radio broadcasting available to the Zimbabwe Broadcasting Corporation
only, thereby creating a public monopoly
of the use of the airwaves
in violation of the interests of private commercial broadcasters in
respect to whose freedom of expression
no licensing system had been
created to enable them to exploit broadcasting technology. In
enacting the Act, the Government responded
to an evident need to
provide a licensing system which would regulate broadcasting by
public and private broadcasters, at the same
time ensuring that the
public retained its right to dissemination and reception of
information through the same medium consistent
with the right to
freedom of expression secured to all of them, including those who
would have been refused broadcasting licences.







I therefore do not consider that
the licensing requirements of the Act limit in principle the rights
guaranteed by s 20(1) of
the Constitution, as the freedom to
impart and receive information through licensed broadcasting is also
guaranteed. Freedom of
every person, including the broadcaster, to
express and communicate ideas without restraint, whether orally or in
print or by other
means of communication, should not be confused with
the privilege conferred upon broadcasters to use broadcasting
facilities.






LOCUS
STANDI


I
now turn to consider the question of the
locus
standi
of
Capital Radio in these proceedings. The first respondent
raised this issue by contending that Capital Radio has not
alleged the facts it was its duty to allege in terms of s 24(1)
of the Constitution to acquire the right of access to apply
for
redress to the Court in respect of certain of the impugned provisions
of the Act. The provisions of s 24(1) of the Constitution
are
set out in the CHIEF JUSTICE’S opinion.







The only time the Supreme Court
has original jurisdiction to hear an application for the redress of
an infringement of a declaration
of a right is when the applicant has
alleged that the declaration of a particular right has been, is being
or is likely to be violated
in relation to himself (if he is not
acting in the representative capacity mentioned therein).







It appears to me that, on a
proper construction of the language of s 24(1) of the
Constitution, where a person has not made the
necessary allegations
of the facts stipulated therein the question of the constitutionality
of the provisions of a statute cannot
be a matter for determination
by the Court because the person would have no right to be heard.







I appreciate the fact that in Law
Society of Zimbabwe and Ors v Minister of Finance

1999 (2) ZLR 231 McNALLY  JA said the Court was disposed to
take a broad view of the question of
locus
standi
in matters
where the applicant was an organisation bringing a representative
action on the allegation that a declaration of rights
was being
contravened in relation to its members or persons it represented.
The organisation would at least have made the necessary
allegation of
the facts required to be made in terms of s 24(1) of the
Constitution for a person to acquire the right to make
an application
to the Court for redress.







I do not think the principle of a
broad view of
locus
standi
taken in
matters of the nature dealt with the
Law
Society’s
case supra
is applicable to a case where the
locus
standi
of a party is
challenged on the ground that no allegation of the requisite facts
prescribed in s 24(1) of the Constitution for
founding
locus
standi
have been made.







The principles applicable to the
determination of the question of
locus
standi
under s 24(1)
of the Constitution were stated in
The
United Parties v The Minister of Justice, Legal and Parliamentary
Affairs and Ors
1997
(2) ZLR 254, where at 258B-C GUBBAY  CJ said:







“… s 24(1)
affords the applicant
locus
standi in judicio

to seek redress for a contravention of the Declaration of Rights only
in relation to itself (the exception being where a person is
detained). It has no right to do so either on behalf of the general
public or anyone else. The applicant must be able to show
a
likelihood of
itself
being affected by the law impugned before it can invoke a
constitutional right to invalidate that law. See
Retrofit
(Pvt) Ltd v Posts and Telecommunications Corporation and Anor

1995 (2) ZLR 199 (S) at 207H-208A, 1995 (9) BCLR 1262 (ZS) at
1269 E-G, 1996 (1) SA 847 (ZS)at 854 D-F.”






In applying
the principles enunciated in the
United
Parties

case
supra
to the facts of this case I am of the opinion that Capital Radio
has not made allegations of the facts which would entitle it
to
challenge the constitutionality of the following provisions of the
Act –






(1) s 8 subss (1), (2) and
(5);



(2) s 22 subs (2);



(3) s 11(1), as read with
s 9 (b) and (c) of the Fifth Schedule;



(4) s 11 subs (4) para
(b); and



  1. s 12
    subs (5).







SECTION 8



The effect of the provisions of
s 8 subss (1) and (2) of the Act is to prohibit the granting of
a broadcasting service licence
to a body corporate in which all the
securities are
not
owned by citizens of Zimbabwe who are ordinarily resident in the
country. Subsection (5) of s 8 of the Act prohibits
the
granting of a licence to a body corporate in which more than ten
percent of the securities are held by one person.







In order to acquire the right to
challenge the constitutionality of these provisions Capital Radio
had to allege that they have
violated the right to freedom of
expression in relation to itself by prohibiting it from applying for
a broadcasting services licence.
It had to allege the fact that all
its securities are not owned by citizens of Zimbabwe who are
ordinarily resident in the country
and that more than ten percent of
its securities are held by one person. Capital Radio did not
make allegations of these facts
in its founding affidavit.







In para 31 of the opposing
affidavit the second respondent stated:







“SECTION 8 – PERSONS
DISQUALIFIED TO BE LICENSED



There is nothing in the papers to
show that the applicant, or any of its members, are not citizens and
ordinarily resident in Zimbabwe.
I therefore wonder on what basis
the applicant lodges this complaint. Certainly, the applicant has
no
locus standi
to challenge sections which, according to the papers, cannot possibly
affect it.”







There is no doubt that s 8
of the Act is a law relating to who may not hold a broadcasting
licence. It restricts the classes
of persons who may hold
broadcasting licences. If Capital Radio fell into the class of
people who could not be granted a broadcasting
services license by
operation of the provisions of s 8 subss (1), (2) and (5) of the
Act, it was expected to challenge the second
respondent’s averments
in its replying affidavit. In para 18 of its replying
affidavit, Capital Radio dealt with the
matter on the basis that
the provisions of s 8 subss (1), (2) and (5) of the Act
prevented foreigners who had capital from investing
in the
broadcasting business.







The reasonable inference to be
drawn from what Capital Radio said in the replying affidavit is
that it is not one of the corporate
bodies affected by the provisions
of s 8 subss (1), (2) and (5) of the Act and that there was no
contravention of the right
to freedom of expression arising from
those provisions. Incidentally, s 3 of the Canadian
Broadcasting Act stipulates that
the broadcasting system should be
effectively owned and controlled by Canadians.
Re
N.B. Broadcasting Co Ltd v CRTC

13 DLR (4
th)
77 at 86.






SECTION
22(2)



The effect of s 22 subs (2)
of the Act is that the granting of a broadcasting services licence to
a corporate body in which
any person other than a citizen of Zimbabwe
ordinarily resident in the country is a director is prohibited.
Capital Radio
did not allege in its founding affidavit that one
or all of its directors are not citizens of Zimbabwe ordinarily
resident in the
country.






SECTION
11(1), AS READ WITH S 9 (B) AND (C) OF THE FIFTH SCHEDULE



Section 11(1) of the Act, as read
with s 9 (b) and (c) of the Fifth Schedule, prescribes the terms and
conditions subject to which
each
commercial
television

broadcasting licence would be issued.







In para 20 of the replying
affidavit it is stated on behalf of Capital Radio that:







“The
applicant wishes to obtain a
radio
broadcasting licence
,
as with the old regulations, the Act provides scope for only one
national radio broadcaster apart from the public broadcaster.”







As s 9(1) of the Act, under
which paras (b) and (c) of the Fifth Schedule fall, clearly relates
to terms and conditions to which
a commercial television broadcasting
licence would be subjected, Capital Radio’s interest in
exercising freedom of expression
by radio broadcasting was not
infringed by the provisions of the Act relating to commercial
television broadcasting.







Capital Radio had no locus
standi
to challenge
provisions of the Act which did not contravene the declaration of
rights in relation to it.






SECTION
11(4)(B)



For the same reason Capital Radio
has no
locus standi
to challenge the constitutionality of the provisions of s 11(4)(b)
of the Act because it imposes on a holder of a television
broadcasting licence an obligation to ensure that not less than ten
percent of the total programming content broadcast is in a manner
that may be understood by audiences who have a hearing impediment.






SECTION 12(3)



Section 12 subs (3) of the
Act fixes the period of validity of a community broadcasting licence
at one year. Capital Radio
has not applied for a community
broadcasting licence. It has therefore no
locus
standi
to challenge
the constitutionality of this provision of the Act.






OTHER
SECTIONS



I am of the view that
Capital Radio has
locus
standi
to challenge
the constitutionality of the rest of the provisions of the Act,
including those that relate to the terms and conditions
of the
broadcasting services licence under which Capital Radio would
have to operate in the event of it being granted a commercial
radio
broadcasting services licence. The nature, content and duration of
the rights Capital Radio would enjoy as a radio broadcaster
are
required by the Act to be defined by the terms, conditions and period
of the licence granted.







Since the only time Capital Radio
can control the use of airwaves to facilitate the dissemination and
reception of information
or ideas by the public in the exercise of
the freedom of expression is under a licence, the terms and
conditions of which are prescribed
by the impugned provisions of the
Act, Capital Radio is able to decide before it is granted the
licence whether or not the terms
and conditions under which it would
be required to broadcast are violative of its constitutional rights
or not.







In my view, it would be too late
for Capital Radio to challenge the constitutionality of the
provisions of the Act, after it
has agreed to be bound by the terms
and conditions of the licence.






I
therefore agree with the CHIEF JUSTICE in holding that
Capital Radio has
locus
standi
to challenge
the constitutionality of the provisions of ss 4(2), 4(3), 5, 9(1) and
9(2). I also agree with SANDURA  JA
that Capital Radio
has
locus standi
to challenge the constitutionality of the provisions of ss 11(4)(a),
12(1)(f), 12(2), 15 and 16.







It is accepted by the respondents
that the impugned provisions of the Act constitute restrictions on
the enjoyment of freedom of expression
by broadcasting. I am not
convinced, however, that the concession is valid in respect to the
provisions of s 12(1)(f).







The question for determination in
each case is whether the restriction to the enjoyment of freedom of
expression brought about by
the impugned provision has been shown not
to be reasonably justifiable in a democratic society. In
Osborne
v Canada (Treasury) Board

(1991) 82 DLR 321 reference was made to the test which is used to
determine whether a provision imposing restrictions upon a
declaration
of rights is reasonably justifiable in a democratic
society. One must look at the objective the Government seeks to
achieve by
the provision. The objective must be of sufficient
importance to warrant overriding a constitutionally protected right
or freedom.
If the objective is found to meet the above
requirement, the means chosen to accomplish the objective must be
examined. The means
must be reasonable and demonstrably justifiable
in a free and democratic society. This is what is called the
proportionality requirement.
It has three aspects –







(1) the existence of a rational
link between the measures under review and the objective;







(2) a minimal impairment of the
right or freedom; and







(3) a proper balance between the
effects of the limiting measures and the legislative objective.







In Staffman
v Vancouver General Hospital CIT

(1990) 76 DLR (4
th)
700 FOREST J explained the proportionality aspect of the test in
these terms:







“The challenged law is then
subjected to a proportionality test in which the objective of the
impugned law is balanced against the
nature of the right it violates,
the extent of the infringement and the degree to which the limitation
furthers other rights or policies
of importance in a free and
democratic society.”







It is apparent from the
application of the test in
Osborne’s
case
supra
that in ascertaining the objective of the provision, the means used
and the effect of the restriction on the constitutional right
or
freedom the Court undertakes the construction of the language used in
the provision.







In Nyambirai
v NSSA and Anor
1995
(2) ZLR 1 (S) the above test was also stated as involving answers to
three questions, which are whether –



1. the legislative objective is
sufficiently important to justify limiting a fundamental right;



2. the measures designed to meet
the legislative objective are rationally connected to it; and



3. the means used to impair the
right or freedom are no more than is necessary to accomplish the
objective.







In ascertaining the legislative
objective, it is permissible to take into account what the Minister
charged with the administration
of the Act says is the objective of
the impugned provision.







One reason for this approach is
that it is imperative that, when the effective exercise of rights so
necessary to the maintenance
of democracy is claimed to have been
abridged, the courts should “weigh the circumstances” and
“appraise the substantiality
of the reason advanced” in support
of the challenged provisions.







The second reason is the
venerable principle to the effect that the interpretation placed on
the impugned provisions by those charged
with the responsibility of
its execution should be followed unless there are compelling
indications that it is wrong. The effect
of this principle is that
the Court should satisfy itself by interpreting the provision that
what the Minister claims to be the objective
of the impugned
provision is correct.







I now apply these principles. I
agree with the CHIEF JUSTICE that the provisions of ss 4(2)
and 4(3) have not been shown
to be unconstitutional. I also agree
with his finding that s 6 of the Act is unconstitutional. It
is clear from the limitation
on the number of individuals who may be
chosen to use the scarce public resource of airwaves that the
granting of broadcasting services
licences is not a mere matter of
electromagnetic engineering for the sake of keeping signals clear.







The limited and restricted number
of broadcasting frequencies, the decision as to who shall be
permitted to use them, and on what
terms and conditions and for what
periods of time, requires the exercise of a discretion of the highest
order and the most careful
application of the principles of equitable
treatment to all the classes and interests affected.
Columbia
Broadcasting v Democratic National Committee

412 US 772 at 815.







Freedom of expression finds its
true meaning when its enjoyment is protected from interference by
Government. To place the power
to decide who gets a broadcasting
services licence in the hands of the executive arm of Government when
there is an independent body
exposes the granting of licences to the
threat of the danger of political interference with the exercise of
freedom of expression
by broadcasting.







The mere legislative preference
for one body as the licensing authority rather than the other is, in
my view, inadequate justification
for a provision, the effect of
which has the potential of diminishing the effective exercise of
rights so necessary to the maintenance
of democracy. In many
democratic countries the body that allocates airwave frequencies is
the licensing authority. In this case
the fact that the allocation
of frequencies is done by the Broadcasting Authority, whilst the
licensing authority is the Minister,
has the effect that a person who
has been allocated a frequency on which to broadcast may have it then
taken away from him by the
Minister and the frequency allocated to
someone else who then gets the licence to broadcast. In my view, in
regulating the activities
of the public and private broadcasters the
Act created a single broadcasting system, the control of which needed
to be in the hands
of an independent public authority such as was
created under s 4.







I agree that s 9(1) of the
Act is unconstitutional. The objective of providing that there
shall be one other national free-to-air
radio broadcaster apart from
the Zimbabwe Broadcasting Corporation, to protect the public
broadcaster from competition with private
broadcasters, is not
sufficiently important to justify limiting the fundamental right to
freedom of expression by broadcasting.
The stated objective
suggests that the restriction is not based upon the limited number of
frequencies. The fixing by legislation
of the number of private
free-to-air national radio broadcasters to one does not take into
account the rapid changes in broadcasting
technology. Prohibition
of competition in the market place of ideas by broadcasting is not in
the public interest which demands
that there be plurality of ideas
and opinions from many different sources.







In Federal
CC v Pottsville Broadcasting Co supra

MR JUSTICE FRANKFURTER said at 138:







“Underlying the whole law is
recognition of the rapidly fluctuating factors characteristic of the
evolution of broadcasting and of
the corresponding requirement that
the administrative process possess sufficient flexibility to adjust
itself to these factors.”







I also agree with SANDURA  JA
that the provision of s 9(3), to the effect that “with the
exception of a public broadcaster,
a broadcasting licence and signal
carrier licence shall not be issued to the same person”, is
unconstitutional. It is clear to
me that, although the second
respondent suggested that the objective of the provision was to
protect private broadcasters from the
huge capital investment
required in the establishment of a signals carrier station, the real
purpose was to protect the public broadcaster
from competition by
placing the control of signals in the hands of one party and the
control of the carrier thereof in another.
The paternalistic reason
given to justify the restriction of the freedom of the broadcaster to
own a signals carrier cannot save
the restriction from being
unreasonable and unjustifiable in a democratic society







Section 11(4)(a) provides
that not less than ten percent of total programming content broadcast
by any licensee shall be in any
of the national aboriginal languages
of Zimbabwe other than Shona and Ndebele.







It is clear that the objective of
the provision is the protection of the rights of members of the
public who speak minority languages
to receive information and ideas
in the languages they understand. As the second respondent
rhetorically but aptly put it, in para 60
of the opposing
affidavit,:







“Of what relevance and use is
s 20 of the Constitution if people cannot understand what is
being broadcast to them, either because
they speak a different
language to everyone else …”.







The constitutionality of
s 11(4)(a) was challenged on the ground that the provision
imposed on private broadcasters duties which
ought to be borne by the
public broadcaster which should represent and serve everyone in the
community as a result of the taxes paid
to the fiscus. It was
contended on behalf of Capital Radio that a private broadcaster
has a primary duty to serve its shareholders
by making profits. It
may therefore not be within the business plan of a private
broadcaster to serve every language group.







Capital Radio has not denied
the fact that airwaves are a public resource and their use by the
preferred few on licence is a
special privilege. The overriding
principle has to be that, whilst licensees enjoy the privilege to use
what is essentially public
property for commercial gain, they remain
trustees of the public interest component of their use of the
airwaves. The right of
those members of the public who speak
minority languages to transmit and receive information or ideas
through the broadcasting medium
controlled by a licensee in the
language they understand overrides the interest of the licensee to
make a profit from broadcasting
and the right applies to information
broadcast by both private and public broadcasters.







In the Columbia
Broadcasting
case
supra
at 803 MR JUSTICE STEWART said:







“… Because of the scarcity of
radio frequencies, the Government is permitted to put restraints on
licensees in favour of others whose
views should be expressed on this
unique medium. But the people as a whole retain their interest in
free speech by radio and their
collective right to have the medium
function consistently with the ends and purposes of the First
Amendment. It is the right of
the viewers and listeners, not the
right of the broadcasters, which is paramount.”







The Legislature fixed the minimum
programming content to be broadcast in any minority language at ten
percent. That is a requirement
the Legislature considered was
necessary as a means of securing the objective of the impugned
provision. The requirement is in
clear language and constitutes in
my view minimal impairment of the broadcaster’s constitutional
right to freedom of expression.







The requirement of a definite
minimum programming content to be broadcast in any of the minority
aboriginal languages at a time convenient
to the broadcaster is a
measure rationally connected to the objective of protecting these
groups’ right to information in line
with the ends and purposes of
the right to freedom of expression enshrined in s 20(1) of the
Constitution. It cannot, in my
view, be said the enjoyment of
freedom of expression by broadcasting would on the part of the
broadcaster be rendered impossible
by the decision of the
Legislature, in the exercise of its relatively wide discretion, to
fix the minimum programming content to
be broadcast at ten percent.
It has not been shown what constitutional principle has been violated
by the decision of Parliament
to fix the minimum programming content
to be broadcast in the languages prescribed at ten percent. In my
view, it has not been
shown that the provisions of s 11(4)(a) of
the Act are not reasonably justifiable in a democratic society.







I now consider the
constitutionality of ss 12(1)(f) and 12(2) of the Act.
Section 12(1)(f) of the Act provides that a licence
shall be in
the prescribed form and shall specify the sources and manner of
funding the licensee. Section 12(2) of the Act provides
that a
licence, other than a community broadcasting licence, shall be valid
for a period of two years.







Section 12(1)(f) of the Act
illustrates the kind of problem one can encounter in basing the
finding of the objective of the impugned
provision on the
interpretation of the Minister only. It is clear from the
construction of s 12(1)(f) of the Act that what
the Minister
says is the objective in para 64 of the opposing affidavit is
with respect wrong. For that reason it is necessary
to set out the
whole of s 12(1) of the Act. It reads as follows:







“Form and period of validity
of licence







(1) A licence shall be in the
prescribed form and shall specify –







(a) the name and address of the
licensee; and







(b) the date of issue and expiry
of the licence; and







(c) any terms and conditions in
addition to those imposed by this Act subject to which the licence is
issued; and







(d) any other matters which the
Minister considers necessary to give effect to this Act; and







(e) in the case of a corporate
licensee, the shareholding structure of the licensee and the names
and other relevant details of the
directors; and







(f) the sources and manner of
funding of the licensee.”







The objective of subs (1)(e) of
s 12 of the Act is clearly the certification of the legal status
of the licensee, that it did
not belong to a class of corporate
bodies or applicants to whom, according to s 8 subss (1) and
(2), as read with s 22
subs (2) of the Act, broadcasting
licences could not be issued.







To establish what the objective
of s 12(1)(e) of the Act is, one has to construe the provision
with reference to s 8 subss
(1) and (2), as read with s 22
subs (2) of the Act. Similarly, the objective of s 12(1)(f)
of the Act, which is
impugned provision, is ascertainable by
reference to s 8 subs (6) of the Act (as amended by s 10
of Act No. 26
of 2001), providing that no person whose
broadcasting service or signal transmission station is wholly or
partly funded by foreign
donations or contributions shall be
licensed.






It
must be remembered that the objective of s 12 of the Act as a
whole is not to compel disclosure of information upon which
the
licensing authority can decide whether or not to grant a licence to
the applicant. The purpose of s 12 of the Act is to
use a
licence as a certificate of the truthfulness of the particulars
recorded therein. The recorded sources and manner of funding
would,
on the face of the document, be a certification of compliance with
the provisions of s 8 subs (6) of the Act.
The obligation
to specify in the licence the particulars of the facts prescribed in
s 12(1)(f) of the Act is placed on the licensing
authority. I
agree with CHEDA  JA that it is not the broadcaster who has
to specify in the licence the necessary particulars.
The provision
cannot be said to be unconstitutional.







The challenge to the
constitutionality of s 12(2) of the Act raises the question of
what is essentially the result of the exercise
of legislative
discretion. I do not think it is a question that can be resolved on
the basis that the decision by Parliament to
fix the period of
validity of the licence at two years was arbitrary.







There is, in my view, no question
of arbitrariness once Parliament has exercised its wide legislative
discretion, because it then
owes no-one a duty to explain how it
arrived at that figure. The fact is simply that the legal period of
a valid licence is two
years.







The argument that the period is
too short for a business venture involving large capital investment
in transmission and ancillary
broadcasting assumes that it is the
financial interests of the broadcaster that is of paramount
importance in determining the period
of a broadcasting licence.
What is of paramount importance in determining the period of a
broadcasting licence is not the financial
interests or convenience of
the broadcaster, but the interest, convenience or necessity of the
public.







In the United States of America
for example, the period of a radio broadcasting licence was set at
three years, notwithstanding the
fact that investment in broadcasting
stations required large capital outlays. In the
Federal
CC
case supra
MR JUSTICE FRANKFURTER said at 138:







“… it is highly significant
that although investment in broadcasting stations may be large a
license may not be issued for more than
three years.”







In Authukorale
and Ors v Attorney General of Sri Lanka

1 BHRC 610 the question was whether the period of one year to which
the Broadcasting Authority Bill sought to limit the time of
broadcasting
licenses was unconstitutional. DE SILVA  CJ
said:



“… licence holders have the
responsibility of meeting the requirements imposed on them to ensure
that the interests of the pubic at large
may be safeguarded.
Perhaps the period of one year may inhibit the investment of large
amounts of money in establishing stations.
Yet, as we have seen, a
licence to broadcast is a temporary privilege and while in issuing a
licence the authority must, among
other things, consider the needs of
competing communities and the programmes offered by competing
stations to meet those needs the
authority must have the right, where
the public interest requires it, to alter its allocations of
frequencies, to reflect changing
needs and circumstances.”







The period of the licence may
therefore be fixed by Parliament, taking into account the need to
prevent the development of private
monopolies in the broadcasting
sector or to be able to change the allocations of frequencies. The
point is made by the second respondent
that one of the reasons for
fixing the period of broadcasting licences at two years was to
provide licensees with the opportunity
to account for their
privileged use of the frequencies allocated to them.







Parliament determined, in the
exercise of its wide discretion, that the period of two years was the
most effective means by which
to enforce the constitutionally
mandated goal of ensuring that freedom of expression by broadcasting
is enjoyed by the public.







In my view, it has not been shown
that s 12(2) of the Act is unconstitutional.







I consider the constitutionality
of the provisions of ss 15 and 16 of the Act.







Section 15 of the Act
provides that:







“(1) Subject to this section,
the Minister, after consulting the authority, may at any time amend a
licence or any term or condition
in a licence –







(a) to correct any error in the
licence; or



(b) if the licensee requests and
is granted an amendment; or







(c) if the Minister considers the
amendment necessary to reflect the true nature of the service, system
or business which the licensee
is conducting; or







(d) If
for any other reason the Minister consider the amendment necessary or
desirable in the public interest
.







(2) Before amending a licence in
terms of subsection (1), otherwise than at the request of the
licensee, the Minister shall direct
the authority to notify the
licensee in writing of the nature of the amendment he proposes to
make and of his reason for wishing
to make the amendment, and shall
give the licensee an adequate opportunity to make representations in
the matter.” (my emphasis)







Capital Radio challenges the
constitutionality of s 15 of the Act on two grounds. The first is
that it gives the power to
amend licences to the Minister, in this
case, the second respondent. It contends that the power to amend
licences should lie with
the broadcasting authority. The second
ground is that s 15(1)(d) of the Act gives the second respondent
too wide a power to
be exercised arbitrarily.







On the first ground, the power to
amend a licence is usually given to the licensing authority. The
question whether the power to
amend the terms and conditions of a
licence should be given to a Minister raises the question whether he
should be the licensing
authority. Since the Minister was
constituted by s 6 to be the licensing authority, it could not,
in my view, be said that
giving him the power to amend the terms and
conditions of the licences to be issued by him was unconstitutional
for being in breach
of the freedom of expression.







On the second ground, I am not
convinced that s 15(1)(d) of the Act has been shown to be
unreasonably unjustifiable in a democratic
society. In the first
place, the object of the provision is clear and it is to ensure that
licences reflect public interest.
The amendment of the licence can
only take place where public interest makes it necessary or
desirable. The criterion of public
interest is not so indefinite as
to permit the Minister to exercise the power to amend a licence
arbitrarily or capriciously.







In the Federal
CC
case supra
the Supreme Court of the United States considered whether a section
of the Communications Act 1934, which required the licensing
authority to take into account “public convenience, interest or
necessity” in granting, revoking or amending a licence, was an
over-broad standard. MR JUSTICE FRANKFURTER at p 138
said:






“In granting or withholding
permits for the construction of stations, and in granting, denying,
modifying or revoking licenses for
the operations of stations,
‘public convenience, interest or necessity’ was the touchstone of
the exercise of the Commission’s
authority. While this criterion
is as concrete as the complicated factors for judgment in such a
field of delegated authority permit,
it serves as a supple instrument
for the exercise of discretion by the expert body which Congress has
charged to carry out its legislative
policy.”







In Federal
Radio Com. V Nelson Brothers B & M Co.

289 US 267 MR CHIEF JUSTICE HUGHES, delivering the opinion of
the Supreme Court of the United States, said at 285:







“In granting licenses the
Commission is required to act ‘as public convenience, interest or
necessity requires’. This criterion
is not to be interpreted as
setting up a standard so indefinite as to confer an unlimited power.
The requirement is to be interpreted
by its context, by the nature
of radio transmissions and reception, by the scope, character and
quality of services.”







It is clear from the authorities
that s 15(1)(d) of the Act is not so over-broad as to confer on
the Minister a power to act
arbitrarily or capriciously.







The section has not, in my view,
been shown not to be reasonably justifiable in a democratic society.







I am also not convinced that the
provisions of s 16 of the Act are unconstitutional.
Section 16(1) of the Act provides
that the Minister, after
consulting the authority, may suspend or cancel any licence if there
is evidence that:







“(a) the licence was issued in
error or through fraud or the misrepresentation or non-disclosure of
a material fact by the licensee;
or







(b) the licensee has contravened
any provision of this Act that is applicable to him; or







(c) the licensee misrepresents
the service or system he offers to the public; or







(d) the licensee has ceased to
provide the service or system specified in the licence; or







(f) in the case of a licensee
which is a body corporate, the licensee has been provisionally or
finally wound up or placed under judicial
management; or







(g) in the case of a licensee who
is an individual, the estate of the licensee has been provisionally
or finally sequestrated; or







(h) the licensee has acted in a
manner prejudicial to the defence, public safety, public order,
public morality or public health of
Zimbabwe; or







(i) the licensee has repeatedly
breached one or more provisions of the code of conduct applicable to
the licensee in terms of section
twenty-four, or any standards
determined in terms of section twenty-five.”







Before taking any action under
s 16(1) of the Act the Minister is required to direct the
authority to notify the licensee of
his intention to suspend or
cancel the licence and to give the licensee an opportunity to defend
his licence. If what the licensee
has said in showing cause why the
licence should not be suspended or cancelled warrants further
investigation, the Minister is required
to request the authority to
institute a public inquiry. If the licence is nonetheless suspended
or cancelled following recommendations
of the authority after the
inquiry, the licensee has a right of appeal to the Administrative
Court.







It is clear that the procedure
the Minister is compelled to follow and the matters he is enjoined to
take into account before suspending
or cancelling a broadcasting
licence militate against arbitrary or capricious use of power. The
infringement or restriction on
the licensee’s freedom of expression
is limited to the clearly defined extent where it has been shown that
he has either committed
a criminal offence or one of the specific
acts of misconduct related to broadcasting. There is no
over-breadth here allowing for
arbitrary or capricious exercise of
power because the “prohibited conduct” triggers the inquiry and
these acts are specified
in clear language for any licensee to know.







The objective served by the
provisions of s 16(1) of the Act is clear and legitimate. In
my view, the objective of prohibiting
fraudulent or dishonest use of
broadcasting licences is important enough to warrant the restriction
on freedom of expression. Suppression
of conduct which contravenes
the provisions of the Act, common law or any other statute cannot be
viewed as a contravention of freedom
of expression because that right
does not include a right to act unlawfully.







Accordingly, I would declare
unconstitutional sections 6, 9(1), 9(2) and 9(3) of the Act and
dismiss the applicant’s contentions
in respect of the rest of the
sections of the Act specified in the draft order.



















GWAUNZA JA: I agree with
MALABA JA’s reasoning and conclusions as regards the following
sections:



4(2)


4(3)


6


9(1)


9(2)


9(3)


11(4)(a)


12(1)(f)






I agree with SANDURA JA’s
reasoning and conclusions as regards the following sections:






12(2)


15


16


















Honey
& Blankenberg
,
applicant’s legal practitioners





Civil
Division of the Attorney-General’s Office,
respondent's
legal practitioners






1
United
Parties v The Minister of Justice, Legal and Parliamentary Affairs &
Ors 1997 (2) ZLR 225 (S)




2
Van
Winsen, Celliers and Loots stated in Herbstein & Van Winsen:
The
Civil Practice of Supreme Court of South Africa

4 Ed, at 364;





Zimbabwe
Teachers Association & Ors v Minister of Education

1990 (2) ZLR 48 at 51B
et
seq




3
Minister
of Home Affairs v Fisher
[1980]
AC 329 at 329;
Dow
v Attorney-General
1992
LRC (Const) 623-3;
Muhozya
v Attorney-General DSM)

Civil Case No 206/93 (Tanzanian High Court decision, unreported)




4
S
v Zuma & Ors

1995 (4) BCLR 401;
Sakal
Papers v Union of India

AIR 1962 SC 305




5
Rattigan
v Chief Immigration Officer and Ors

1994 (2) ZLR 54 (S)




6
New
Patriotic Party v The Inspector General of Police

Judgment of the Supreme Court of Ghana 4/93 (unreported)




7
Dow
v Attorney-General (supra) Derbyshire County Council v Times
Newspapers
2
WLR 449




8
1995
(2) ZLR 199 (S)




9
Muhozya
v Attorney-General, supra




10
PLD
1993 SC 473




11
Handyside
v United Kingdom (1976) 1 EHRR 737, para 49




12
Compulsory
Membership in an Association Prescribed by Law for the Practice of
Journalism, Advisory Opinion OC-5/85 of 13 November
1985, Series A,
No 5, para 70




13
Rights
of Access to the Media at page 3




14
2000
(1) ZLR 522 (SC) at 558D-E




15
(1997)
2 BHRC 610




16
In
re Chikweane

1995 (1) ZLR 235 (S)




17
Authokorale
v Attorney-General supra, Perera v Attorney-General supra, State of
Bihar v Misra

AIR 1971 SC 1667 at 1675,
Malundika
v The People,

Supreme Court of Zambia 95/95 (unreported);
Pumbun
v Attorney-General

[1993] 2 LRC 317




18
S
v Makwanyane & Anor

1995 (6) BCLR 665,
New
Pastriotic Party v Inspector General of the Police, supra




19
R
v Oakes

(1986) 19 CRR 366,
Nyambirai
v Nassa and Anor

1995 (2) ZLR 1 (S)




20
Woods
& Ors

1994 (2) ZLR 195 at 195B-C