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Scanlen and Holderness v Zimbabwe (Communication 297 of 2005)

African Commission on Human and Peoples' Rights · [2009] ACHPR 96 · 2009 Communication Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights challenging the constitutionality of Zimbabwe's Access to Information and Protection of Privacy Act
Decision
Communication declared admissible and found in favour of the Complainants; Respondent State ordered to repeal the impugned provisions and adopt self-regulatory framework for journalists

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that Sections 79 and 80 of Zimbabwe's Access to Information and Protection of Privacy Act violate Article 9 of the African Charter. Compulsory accreditation of journalists by a state-controlled commission constitutes an unnecessary restriction on freedom of expression that is not justified by public order or other legitimate interests in a democratic society. The Commission found that self-regulation by journalists through professional organisations, coupled with existing civil and criminal remedies, provides adequate mechanisms for regulating journalism without the restrictive accreditation regime imposed by the Act.

Outcome

Communication declared admissible and found in favour of the Complainants; Respondent State ordered to repeal the impugned provisions and adopt self-regulatory framework for journalists

Facts

On 18 March 2002, Zimbabwe enacted the Access to Information and Protection of Privacy Act (AIPPA), which established the Media and Information Commission (MIC). Section 79(1) of AIPPA required all journalists to be accredited by the MIC before practicing journalism in Zimbabwe. The MIC was managed by a Board appointed by the Minister of Information and Publicity. Section 80 made it an offence for journalists to publish falsehoods, with penalties including fines or imprisonment for up to two years. The Complainants, representing journalists' associations and human rights organisations, challenged these provisions before the Supreme Court of Zimbabwe, which upheld the constitutionality of compulsory accreditation and the prohibition of false news. Having exhausted domestic remedies, the Complainants brought a communication to the African Commission alleging violations of Article 9 of the African Charter.

Issues

  1. Whether Section 79(1) of the Access to Information and Protection of Privacy Act, which requires compulsory accreditation of journalists, violates Article 9 of the African Charter on Human and Peoples' Rights.
  2. Whether Section 80 of the Access to Information and Protection of Privacy Act, which prohibits and punishes the publication of falsehoods, violates Article 9 of the African Charter on Human and Peoples' Rights.
  3. Whether the Complainants exhausted local remedies as required under Article 56.5 of the African Charter.

Orders

  • Repeal Sections 79 and 80 of the Access to Information and Protection of Privacy Act.
  • Decriminalise offenses relating to accreditation and the practice of journalism.
  • Adopt legislation providing a framework for self-regulation by journalists.
  • Bring the Access to Information and Protection of Privacy Act in line with Article 9 of the African Charter and other international human rights instruments.
  • Report on the implementation of these recommendations within six months of notification.

Rules and key headnotes

Freedom of Expression — Compulsory Accreditation of Journalists — State Control
Compulsory accreditation of journalists by a state-controlled commission constitutes a violation of the right to freedom of expression where the accreditation regime aims to control rather than regulate the profession, and where it creates scope for politically motivated action by authorities.
Freedom of Expression — Registration Procedures — Permissible Conditions
Registration procedures for journalists are not in themselves a violation of the right to freedom of expression, provided they are purely technical and administrative in nature, do not involve prohibitive fees, and do not impose onerous conditions.
Freedom of Expression — Self-Regulation — Professional Autonomy
The regulation of the media should be a matter for self-regulation by journalists themselves through their professional organisations or associations. A regulatory body whose regulations are drawn up by government cannot claim to be self-regulatory, as any act of establishing a regulatory body by law brings the body under the control of the State.
Freedom of Expression — Journalism Distinguished from Other Professions
Journalism cannot be equated to professions that merely grant a service to the public through the application of knowledge or training. The practice of journalism involves the seeking, receiving, and imparting of information, which are activities that define freedom of expression itself. Unlike law or medicine, journalism is an activity specifically guaranteed by freedom of expression provisions.
Interpretation of Rights — 'Within the Law' — International Standards
The phrase 'within the law' in Article 9.2 of the African Charter must be interpreted in conformity with international human rights standards. Domestic legislation must be consistent with the African Charter and other international human rights instruments. A State Party cannot argue that limitations are permissible solely because they exist within its domestic law, as this would leave the exercise of freedom of expression at the discretion of each State and defeat the purpose of international human rights protection.
Freedom of Expression — Dual Dimension — Individual and Collective Rights
The right to freedom of expression has a dual dimension: it protects both the individual's right to impart information and the collective right of society to receive information. When an individual's freedom of expression is unlawfully restricted, it violates not only that individual's right but also the right of all others to receive information and ideas. The two dimensions must be guaranteed simultaneously.
Exhaustion of Local Remedies — Futility Exception
Where the highest court in a jurisdiction has issued a binding decision spelling out the position of the law on the matter in dispute, it would be futile to require further exhaustion of domestic remedies. The futility exception to the exhaustion requirement applies when a binding precedent makes clear that no effective remedy is available.

Legislation cited (15)

  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 27
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 60
  • African Charter on Human and Peoples' Rights Article 61
  • Access to Information and Protection of Privacy Act (AIPPA) Chapter 10:27 s.79
  • Access to Information and Protection of Privacy Act (AIPPA) Chapter 10:27 s.80
  • Access to Information and Protection of Privacy Act (AIPPA) Chapter 10:27 s.78
  • Access to Information and Protection of Privacy Act (AIPPA) Chapter 10:27 s.83
  • Access to Information and Protection of Privacy Act (AIPPA) Chapter 10:27 s.84
  • Constitution of Zimbabwe s.20
  • Constitution of Zimbabwe s.24
  • American Convention on Human Rights Article 13
  • European Convention on Human Rights Article 10
  • International Covenant on Civil and Political Rights Article 19

Cases cited (15)

  • Media Rights Agenda and Others v Nigeria (Communications 105/1993, 128/1994, 130/1994)
  • Association of Independent Journalists and Others v The Minister of State for Information and Publicity and 2 Others (SC 136/02)
  • Constitutional Application No. 252/02
  • Chavunduka and Another v Minister of Home Affairs and Another [2000] 1 ZLR 552
  • United States v Schwimmer 279 US 644 (1929)
  • Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for Information and Publicity and 2 Others (SC 111/04)
  • Association of Independent Journalists and 2 Others v The Minister of State for Information and Publicity and 2 Others (SC 136/02)
  • Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe and Others (SC 128/02)
  • Francis Kasoma v The Attorney General (Zambia High Court Civ. Case No. 95/HP/2959)
  • Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Advisory Opinion OC-5/85)
  • John D. Ouko v Kenya (Communication 232/99)
  • Dawda Jawara v The Gambia (Communications 147/95, 149/96)
  • Alhassane Aboubacar v Ghana (Communication 103/1993)
  • Constitutional Rights Project and Others v Nigeria (Communications 140/94, 141/94, 145/95)
  • Athukorale and others, supra

Full judgment

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Scanlen and Holderness v Zimbabwe (Communication 297 of 2005) [2009] ACHPR 96 (3 April 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.