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-------------------------------------------------------------------------------37. They claim it is on that basis that they have brought their Communication to the African Commission, arguing that there is no domestic remedy available in Zimbabwe to afford protection to a distributor of false news or fiction or false cartoons. DECISION OF THE AFRICAN COMMISSION ON ADMISSIBILITY 38. The African Commission, having considered the criteria on admissibility under Article 56 of the Charter, is satisfied that the Communication indicates the authors, that it falls within the ratione materiae and ratione temporis of the Charter and the Constitutive Act, and is therefore compatible with the Charter. It does not use disparaging language, it has provided information and facts on the decision of the Supreme Court of Zimbabwe, including Affidavits on which the Complaint is based. It was submitted within reasonable time, and is not a subject of adjudication in any other tribunal and nor previously settled by another international tribunal. 39. The only criterion which the African Commission has to look at is whether the Communication satisfies Article 56(5). Having analysed the submissions by both parties on the question of exhaustion of domestic remedies, the African Commission is satisfied that in the light of the Supreme Court decision, Constitutional Application No 252/02,[FN5] spelling out the position of the law in Zimbabwe concerning the provisions applicable to the accreditation and registration of journalists, which is a binding authority in Zimbabwe, it would have been futile for the Complainants to go to the Supreme Court in order to exhaust domestic remedies. -------------------------------------------------------------------------------[FN5] Please see Footnote 3 above. -------------------------------------------------------------------------------40. Taking into account all the foregoing submissions, the Commission decides to declare the Communication admissible. CONSIDERATION OF THE MERITS COMPLAINANTS' SUBMISSIONS 41. The Complainants argue that the emphasis on the right to freedom of expression in ensuring democracy is such that regulation, other than self-regulation, is undesirable in a democratic society. They argue further that practical considerations for media regulation arise from the need for resource management, need to ensure equal access, competition laws and minority rights, public service considerations, consumer protection and revenue considerations. All the aforesaid factors are applicable to electronic media house regulation and not applicable to regulation of journalists. 42. The Complainants submit further that there is no necessity for additional measures to control journalists in Africa because in virtually all jurisdictions in Africa, there are civil and criminal sanctions for injuria and defamation which already regulate the conduct of journalist in the discharge of their work. 43. The Complainants submit further that the registration requirements and procedures are unduly intrusive and burdensome, particularly inquiries into individuals' private details such as one's

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Scanlen and Holderness v. Zimbabwe [2005]

Case Law

Country

Zimbabwe

Country Location

Latitude: -18.786464902376327

Longitude: 29.889732273170317

Country Location (linked Case Law): Zimbabwe

Decision Date: Apr 14, 2009

Case Status: Closed

Case Outcome (Procedural)

Motion Granted

Case Outcome (Disposition)

Law or Action Overturned or Deemed Unconstitutional
Violation of a Rule of International Law

Keywords

Freedom of Expression
Freedom of Press

Court Name: AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

Case Summary: Case Title: Scanlen and Holderness v. Zimbabwe (Communication 297 of 2005) Court: African Commission on Human and Peoples' Rights Date of Decision: 3rd April 2009 Citation: 2009 ACHPR 96

Facts The complainants, consisting of the Independent Journalists Association of Zimbabwe, Zimbabwe Lawyers for Human Rights, and the Media Institute of Southern Africa, challenged the constitutionality of Zimbabwe's Access to Information and Protection of Privacy Act (AIPPA). Enacted in 2002, AIPPA required compulsory accreditation for journalists by the Media and Information Commission (MIC) and imposed criminal penalties for violations. The complainants argued that these provisions violated the right to freedom of expression under Article 9 of the African Charter on Human and Peoples' Rights.

Issue Whether the compulsory accreditation of journalists under Section 79 of AIPPA violated the right to freedom of expression as guaranteed by Article 9 of the African Charter. Whether the criminalization of falsehoods under Section 80 of AIPPA was compatible with Article 9 of the African Charter. Rule Article 9 of the African Charter on Human and Peoples' Rights states:

Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law. Analysis The African Commission on Human and Peoples' Rights evaluated whether the requirements for compulsory accreditation and the criminalization of falsehoods constituted unjustifiable restrictions on freedom of expression. The Commission found that compulsory accreditation created significant barriers to practicing journalism, undermining both individual rights and the public’s right to information. The MIC’s control over accreditation gave the government undue influence, leading to potential political manipulation. Additionally, the criminalization of falsehoods was deemed excessive, with penalties that were disproportionate to the harm caused. The Commission noted that existing civil and criminal remedies for defamation and other harms were sufficient to address issues of misinformation without needing further restrictions.

The Commission drew on international jurisprudence, including cases from the Inter-American Court of Human Rights, which had struck down similar licensing schemes as incompatible with freedom of expression. The African Commission found the logic of these decisions compelling and applied similar reasoning to this case.

Conclusion The African Commission held that Sections 79 and 80 of AIPPA violated Article 9 of the African Charter. The compulsory accreditation requirement and the criminalization of falsehoods were found to be unjustifiable restrictions on freedom of expression.

Case Significance: This case is significant because it reaffirmed the importance of freedom of expression as a fundamental human right and emphasized the need for media regulation to be conducted in a manner that does not infringe on this right. The decision highlighted the dangers of state control over the press and reinforced the principle that self-regulation is the best approach to ensuring ethical journalism. The ruling also served as an important precedent for other African states, demonstrating the Commission’s commitment to upholding the rights enshrined in the African Charter.

Related Law

Source URL: africaLII

Notes: The African Commission recommended that Zimbabwe:

Repeal Sections 79 and 80 of AIPPA. Decriminalize offenses related to accreditation and the practice of journalism. Adopt legislation that allows for self-regulation by journalists. Bring AIPPA in line with Article 9 of the African Charter and other international human rights standards.

Collection

CIPIT

Date Updated: Aug 14, 2024

Primary Documents

Scanlen and Holderness v Zimbabwe (Communication 297 of 2005) 2009 ACHPR 96 (3 April 2009).pdf
English
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Scanlen and Holderness v. Zimbabwe [2005]

Primary Documents

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