Previous 9 / 21 Next

The Attorney General [FN7], where compulsory registration of journalists ordered by the Zambian government was declared unconstitutional by the Zambian High Court in 1997. According to the Complainants, in that case, journalists were obliged to become members of a Media Association of Zambia and to register with a statutory Media Council. They submit that the High Court of Zambia quashed the decision and among the reasons given by the High Court Judge is that: "I do not in my view consider the decision to constitute the Media Council of Zambia to be in furtherance of the general objectives and purpose of the Constitutional powers, among them, to promote democracy and related democratic ideals such as freedom of expression, and press freedom in particular. … The decision to create the Media Council of Zambia is no doubt going to have an impact … on freedom of expression in that failure of one to affiliate himself to the Media Council of Zambia, or in the event of breach of any moral code determined by the council would entail losing his status as a journalist, and with the denial of the opportunity to express and communicate his ideas through the media". -------------------------------------------------------------------------------[FN7] (Zambia High Court civ. Case N0. 95/HP/2959 -------------------------------------------------------------------------------57. The High Court in Zambia went on to state that ‘in light of the above it cannot be seriously argued that the creation of the Media Association or any other regulatory body by the Government would be in furtherance of the ideal embodied in the Constitution, vis-à-vis freedom of expression and association. Consequently, I find that the decision to create the Media Association is not in furtherance of the objectives or purposes embodied in the Constitution in particular those protected in Articles 20 and 21 [which guarantee freedom of expression and association]'. 58. The Complainants further submitted that the provision under section 84 of the AIPPA, which makes it compulsory to renew accreditation after a maximum period of twelve months, i.e. at the end of each calendar year, places journalists in a position of permanent insecurity. This, according to them, will have an extremely chilling effect on their ability to freely practice their trade and will inevitably lead to various degrees of self-censorship. 59. The Complainants argue that in those very rare instances where expression really does pose a risk to society, as in the example from Rwanda cited by the Respondent, this should be addressed through the criminal law, not by generalized restrictions on all journalists. 60. The Complainants submit that the real purpose of the licensing system established by AIPPA is to provide the Government with a measure of control over journalism and to prevent, or at least limit critical reporting. As a result, they claim, the licensing system for journalists imposed by the contested provisions of AIPPA does not serve a legitimate aim as required under international law. 61. In conclusion, the Complainants submit that modern jurisprudence accepts that it is contrary to freedom of expression to criminalize falsehoods, and to support this argument, they cite Chavunduka and Another v Minister of Home Affairs and Another[FN8], where the Supreme Court of Zimbabwe observed that:

Select target paragraph3

● ● ●

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: 14 de abr. de 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 Name and 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: 14 de ago. de 2024

Primary Documents

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

CYRILLA: Global Digital Rights Law

Select target paragraph3

Scanlen and Holderness v. Zimbabwe [2005]

Primary Documents

Notifications