While it was widely expected that broadcasting laws will be amended under terms of a new Constitution to reconstitute the ownership regime by opening up the airwaves to foreigners, government is going back on this, and will only allow a few foreigners.
The proposed Bill sets out its objective as being the alignment of the existing Broadcasting Services Act (BAZ), which is the principal Act, with the new Constitution of Zimbabwe adopted in 2013 as well as the Public Entities Corporate Governance Act.
Lawyer Tafadzwa Mugabe unpacked contents of the Bill at a Gweru meeting, attended by senior journalists and members of the parliamentary portfolio committee on media. The indaba was organised by Misa-Zimbabwe and Media Alliance of Zimbabwe.
"Whereas the Constitution provides a clear right to establish broadcasting services and other electronic means of communication without qualification other than licensing procedures, the Bill, like the Act, still insists on limiting ownership and control to citizens only while limiting foreign involvement to between 20 and 25 percent," Mugabe said.
"With respect, this limitation is not provided for in the Constitution.
"The limitations on ownership and control are not only unconstitutional but are in stark contrast to the economic empowerment agenda of the State and the law that is used to enforce the same.
"The economic empowerment law has removed ownership quotas across the entire economy save for diamonds and platinum mining and reserved sectors which do not include broadcasting and media.
"The proposed Bill reintroduces an archaic economic empowerment provision in the broadcasting services sector," said Tafadzwa.
This proposal flies in the face of the December 2017 policy pronouncement on the Indigenisation and Economic Empowerment Act of 2009, which required all companies operating in Zimbabwe to be 51 percent or more owned by black Zimbabweans.
Government decreed that the indigenisation policy would apply only to diamond and platinum mining.
Amending and relaxing the Indigenisation and Empowerment Act was seen as one of the key policies structured to re-attract foreign investments, but government is now going back on its word.
Mugabe said there also has been no attempt to update the list of broadcasting services that are capable of licensing and regulation nor has there been an effort to acknowledge new communication technologies and how they will fit in the broader scheme of things.
"By way of example, phenomenon such as YouTube channels and Facebook live are the lived realities of the day but the Bill does not say anything about the treatment to be accorded to these media," Mugabe said.
Mugabe said the proposed Bill must be read and understood in the context of a draft that is not yet ratified by Cabinet by way of adopted drafting principles.
"In the absence of clear ratified drafting principles, the draft remains just a draft that may very well be overtaken by events. Be that as it may, the memorandum to the draft Bill acknowledges the need to align the existing law to the Constitution, which is a notable acknowledgement of the supremacy of the Constitution. Regrettably the substantive provisions do little to confirm the intention of alignment," he said.
He said Clause 3 of the Bill amends section 2A of the principal Act to provide that the role of BAZ is to regulate and supervise rather than to control broadcasting service bands.
"The stated intention is to move away from a perception that the legislation is intended to stifle the freedoms guaranteed by section 63 of the Constitution and instead to focus on necessary regulation of the airwaves.
"This is also in line with current international trends as contained in some international instruments among them, the African Charter on Broadcasting, the African Charter on Human and People's Rights and the International Covenant on Civil and Political Rights."
He however said the bad faith or lack of sincerity in the alignment project is apparent, especially presently, with the absence of Board members at BAZ.
If the State was sincere in the reform agenda, he argues, a Board would have been constituted to be part of the reform agenda.
"As matters stand, the secretariat has been running without a Board and in some instances, illegally issuing out licenses contrary to the clear dictates of law."
Mugabe said there were also good things in the Bill such freedom of expression and freedom of the media which includes freedom to seek, receive and communicate ideas and other information; freedom of artistic expression and scientific research and creativity; and academic freedom are guaranteed in the Bill, with a specific entrenchment of the protection of journalists' sources of information and the freedom to establish broadcasting and other electronic means of communication.
"More importantly and especially pertinent in this context is that broadcasting and other electronic media of communication have freedom of establishment, subject only to State licensing procedures that are necessary to regulate the airwaves and other forms of signal distribution; and are independent of control by government or by political or commercial interests.
"Likewise all State-owned media of communication must be free to determine independently the editorial content of their broadcasts or other communications; be impartial; and afford fair opportunity for the presentation of divergent views and dissenting opinions," he said.
What to expect in the new BillA person who controls a newspaper may not have control of a commercial broadcasting licence; a person who controls a newspaper may not have control of a commercial broadcasting licence in an area where the newspaper has a circulation of 20 percent of the total newspaper readership if the licence area and the circulation area overlap by 50 percent or more.
A 20 percent shareholding in a commercial broadcasting service constitutes control. Changes to the provisions of this section may be made following recommendations by the authority, after a public hearing, tabled by the minister in the National Assembly for its determination.
Clause 8 of the Bill amends section 10 of the principal Act mainly to introduce transparency in the applications for, grant or refusal of grant of licences. At present applications for licences can only be made at the invitation of the Authority through a public notification.
This is an unnecessary control which only serves to fetter the exercise of the freedoms guaranteed under section 61(3) of the Constitution.
Clause 9 of the Bill repeals section 11(5) of the principal Act to remove the current requirement that commercial broadcasting licensees allocate an hour weekly to explain government policies, free of charge.
Under the new section 23A, a person may not: exercise control over more than one broadcasting licence, or be a director of a company or companies which can exercise control over more than one commercial broadcasting licence, or be in a position to control a commercial broadcasting licence and at the same time be a director of any company which can exercise control over any other commercial broadcasting licence.
Exemptions from this provision may be granted on good cause shown but subject to compliance with the objectives of the Act.
Clause 16 of the Bill amends paragraph 9 of the Fourth Schedule to the principal Act to provide that the appointment of the chief executive officer and senior staff of the authority will be subject to sections 17 to 21 and section 23 of the Public Entities Corporate Governance Act which specify, among other things: a maximum of two fixed-term performance contracts for the chief executive officer, each term not exceeding five years; performance contracts of all other senior staff; the advertising of the post in a newspaper circulating in the area of the entity's activities; that appointments should be primarily on merit, with due regard to regional and gender representation; the filling of the post of chief executive officer within six months of a vacancy occurring.
