15 Jul Freedom of Expression and Freedom of the Media
Freedom of expression is a fundamental human right, which is enshrined in section 61 of our constitution. This right underpins most other rights and allows them to flourish. The right to speak your mind freely on important issues in society, access information and hold the authorities, for example, the State, to account, plays a vital role in the healthy development process of any society. The Universal Declaration of Human Rights defines freedom of expression as “the right of every individual to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Section 61 (1) (a) says that every person has the right to freedom of expression, which includes the freedom to seek, receive and communicate ideas and other information; this is because freedom of expression is essential to the development, dignity and fulfilment of every person. Section 61(1) (b) expands on this by including freedom of artistic expression and scientific research and creativity; such free expression allows people to gain an understanding of their surroundings and the wider world by exchanging ideas and information freely with others. Freedom of expression cannot exist without the right to freedom of conscience or the right to freedom of thought as found in section 60 of the constitution, which was discussed in a previous article in this series.
The level of freedom of association enjoyed by any society is related to the levels of education and literacy in that society, the lower the education and literacy levels the more likely, that the right to freedom of expression will conversely be harder to exercise or access. With this link in mind, access to free expression plays a dual role; firstly, it is a vital tool in supporting the community’s development process and secondly, it is a development goal in its own right. Amartya Sen in his book, Development as Freedom perhaps best advocated this connection – where he argued that expansion of freedom is both the primary end, as well the principal means of development. In other words, societies cannot achieve any meaningful development while trampling on fundamental rights and freedoms such as the freedom of expression.
Unfortunately, in practice, the right to freedom of expression is still widely restricted through tactics that include censorship of individuals and the press, use of restrictive media laws, and continued harassment of journalists, activists, and in some countries, bloggers. In some instances, religious laws and customs are also used as a tool used to suppress the freedom of expression of religious minorities or people of differing religious views. Sadly, laws that suppress the right to freedom of expression still exist in Zimbabwean legislation, perhaps most notoriously in the form of sections 31 and 90 of the Criminal Law (Codification and Reform) Act, or section 64 of the Access to Information and Protection of Privacy Act.
Although defamation has been declared unconstitutional in light of Zimbabwe’s previous constitution it is still yet to be struck down from the Criminal Code. The continued existence of these laws along with the disappearance of activists like Itai Dzamara are proof enough that Zimbabwe still has a lot of ground to cover in as far as the promotion of the access to free expression is concerned. The constitution protects the identity of journalistic sources of information, it does this through section 61(2), and this means that a journalist cannot be compelled to disclose their source of information.
This section is meant to promote the supply of information that might primarily be of public interest. Freedom of expression and freedom of the media contribute to the quality of government by, among other things, enabling journalists and activists to highlight human rights issues or abuses and persuade the government to take action to remedy them. Furthermore, media scrutiny of the government as well as the opposition helps expose corruption or other improprieties and goes a long way in establishing a culture of transparency and accountability.
Ironically, section 61(4) says that all state media 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! The irony arises when one considers how openly biased state owned print and digital media is, this constitutional provision is good on paper but it still, in my view, goes largely ignored by state owned media houses which are largely viewed by the greater part of the population as part of the state propaganda machinery.
Lastly, technological advances in general and the internet in particular have greatly impacted on the right to freedom of expression as well as the right to freedom of the media, this is because communication can now take place electronically and not just via traditional or offline channels. This means that our legislation as well as definitions of communication or information related crimes and offences have to be updated and in some instances, completely overhauled to reflect the developments that have been made in the field information communication technology.
Kuda Hove is a Legal Officer at Veritas, he writes in his personal capacity. Email: firstname.lastname@example.org