Alert Update
26 March 2008
Supreme Court declares ban against journalist null and void

Chief Justice Godfrey Chidyausiku on 26 March 2008 set aside and declared the state-controlled Media and Information Commission’s (MIC) ban against senior journalist Brian Hungwe from practicing journalism null and void.

The Supreme Court’s ruling comes hard on the heels of High Court judge Justice Chitakunye’s dismissal of an urgent application by Hungwe seeking nullification of the one-year ban imposed by the MIC in terms of the repressive Access to Information and Protection of Privacy Act (AIPPA).

However, on 12 March 2008, his lawyer Selby Hwacha engaged by MISA-Zimbabwe under its Media Defence Fund facility, immediately filed an appeal with the Supreme Court following Justice Chitakunye’s ruling.

Said Chief Justice Chidyausiku in his ruling in chambers today: “I am satisfied that in suspending the applicant (Hungwe) the then MIC did not comply with Section 85 (3) of the Access to Information and Protection of Privacy Act. The requirements of Section 85 (3) of the Act are peremptory (compulsory) and the failure to comply with them renders the actions of the MIC a nullity.

“In terms of Section 25 (2) of the Supreme Court Act, a judge of this court has powers to review proceedings of inferior tribunals such as the first respondent (MIC). In the exercise of such powers the respondents’ suspension of the applicant is and is hereby set aside on the grounds that it is a nullity.”

The ban against Hungwe was imposed in terms of Section 79 of AIPPA which deals with accreditation of journalists yet a journalist can only be punished or banned in terms of Section 85 (3) of AIPPA.

In that case a journalist will be notified in writing of the proposed action and be given opportunity to show cause within a reasonable time as to why the intended disciplinary measures should not be taken. Thereafter, the Commission will afford the journalist in question a fair hearing and consider representations made before taking action it considers appropriate.

In Hungwe’s case the mandatory disciplinary process was not complied with. It is further noted that the AIPPA Amendment Act which came into law on 11 January 2008, dissolved the MIC in whose place should now be the Zimbabwe Media Commission empowered to deal with the matters in question. The ZMC is still to be constituted.

Meanwhile, Hwacha told MISA-Zimbabwe that in his ruling Chief Justice Chidyausiku noted that the Supreme Court as the superior court has powers to set aside the proceedings of an inferior court or tribunal where it considers that that there have been irregularities in those proceedings.

background

Hungwe filed an urgent application with the High Court after the MIC which had been given until 5 February 2008 to reverse its ban failed to respond to the letter written to that effect by his lawyer. In his application Hungwe was arguing that the ban was imposed without compliance with the disciplinary procedures specifically set out in terms of AIPPA.

On 3 March 2008, Hwacha wrote to the MIC arguing that its letter of 26 February 2008 notifying Hungwe of the one-year ban from practicing journalism is “clearly not lawful”.

Said Hwacha in his letter to the MIC: “We request you to confirm urgently that the blanket ban on our client is ineffective and that there is no impediment to his practice as a journalist. The denial of means of sustenance is inherently urgent given especially that our client had been given to understand that the ban would be lifted.

“Should we not hear from you by or before 10.00am on Wednesday 5th February 2008, we will have little choice other than take the matter to court urgently,” said Hwacha.

In his letter to the MIC, the lawyer noted that the Commission imposed the ban in terms of Section 79 of the repressive Access to Information and Protection of Privacy Act (AIPPA) which deals with the accreditation of journalists. Hungwe applied for accreditation around the 5th of January 2007. Six months later, in July 2007 he received notice to appear before a hearing in respect of the application.

On 18 September 2008 following notification of the hearing for his accreditation, he received a letter from the Commission to which was attached “disciplinary determination” which found Hungwe guilty of contravening Sections 79 (5) and 90 of AIPPA Chapter 10:27. The determination resulted in the one-year blanket ban against Hungwe.

End
 
For any questions, queries or comments, please contact:
 
Nyasha Nyakunu
Research and Information Officer
MISA-Zimbabwe

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