On 22nd January 2021, the Zimbabwe Media Commission published Access to Information and Protection of Privacy (Registration, Accreditation, and Levy) (Amendment) Regulations, 2021 (No. 1) [SI 22 of 2021]. These regulations purport to set out new fees for accrediting journalists and registering news agencies and media services under the Access to Information and Protection of Privacy Act [AIPPA]. They are available on the Veritas website [link].
We shall deal with the content of the regulations before going on to discuss their validity – or rather, their invalidity.
The New Fees
The regulations enact a new schedule of fees for the accreditation of journalists and the registration of media services, for applications for accreditation and registration, and for the renewal of accreditations and registrations. Some fees are specified in Zimbabwe dollars, some in US dollars:
· in ZWL dollars for mass media services, community mass media services, news agencies and local journalists;
· in US dollars for local journalists working for foreign media houses, for temporary accreditation for foreign journalists [special accreditation fees differentiating between SADC and African journalists and others] and for permission to operate representative offices of foreign mass media services or news agencies, again with special fees for SADC and others.
Examples of the new fees are:
· local journalists: ZWL$600 for a new applicant, $500 for renewal and $500 for card replacement
· new mass media service: application fee ZWL$5 000 plus ZWL$60 000 registration fee
· existing mass media service: renewal fee ZWL$40 000 plus ZWL$20 000 for late renewal
· new news agency: application fee ZWL$5 000 plus ZWL$40 000 registration fee
· existing news agency: renewal fee ZWL$20 000 plus ZWL$5 000 for late renewal
· local journalists working for foreign media house : US$150 accreditation fee
· temporary accreditation for a foreign journalist: US$150, while the fee for extension of accreditation period has been set at US$50 [with special fees for those from the SADC bloc and Africa – who are charged US$30 and US$40, respectively].
Online accreditation and registration
Because of the COVID-19 pandemic, accreditation and registration is being conducted online. Application forms can be downloaded from the Media Commission website: www.mediacommission.co.zw
Validity of Regulations Open to Serious Doubt
According to the preamble to the regulations, “the Commission” – unnamed, but in the context, it must be the Zimbabwe Media Commission – made the regulations with the approval of the Minister of Information, Publicity and Broadcasting Services in terms of section 91 of AIPPA. AIPPA however was repealed by section 41 of the Freedom of Information Act which was gazetted and became law on the 1st July last year as Act 1 of 2020; it can be accessed on the Veritas website [link].
It is as well to spell out the words of section 41 of the Freedom of Information Act:
“(1) Subject to subsection (2) The Access to Information and Protection of Privacy Act [Chapter 10:27] is repealed.
(2) All statutory instruments or [sic] made under the Access to Information and Protection of Privacy Act [Chapter 10:27] shall remain in force as if they had been made under the appropriate provision of this Act and may be amended, replaced or repealed accordingly.”
In other words, as we pointed out when discussing the new Freedom of information Act in Bill Watch 46/2020 of 10th July 2020 [link], section 41 preserved regulations made under AIPPA only to the extent that they could have been made under the appropriate provisions of the new Freedom of Information Act. But there are no such provisions – the Freedom of Information Act makes no provision at all for accrediting journalists or registering media services and news agencies, hence regulations fixing fees for accreditation and registration could not remain in force and cannot now be amended.
While that seems to be the correct legal position, the gazetting of SI 22/2021 indicate that the the Ministry of Information and the Zimbabwe Media Commission apparently think otherwise. But it is noteworthy that they have cited section 91 of the Access to Information and Protection of Privacy as the enabling authority for new regulations. That is an admission that there is nothing in the Freedom of Information Act enabling the regulations to be made.
There is a further ground for treating the regulations as invalid. They purport to operate retrospectively, in that they impose the new fees “with effect from the 1st January 2021” whereas they were published, as we have said, on the 22nd January, three weeks later. Regulations cannot operate retrospectively unless the Act under which they are made expressly permits retrospective regulations to be made. The Freedom of Information Act does not give the Commission power to make retrospective regulations – nor, for that matter did AIPPA.
Although the regulations are almost certainly invalid, media houses and journalists would probably be wise to abide by them until the High Court declares them to be invalid. The sooner a court ruling can be obtained one way or the other, the better for all concerned.
President Mnangagwa’s New Dispensation started on a high note. The Constitution was to be respected, civic freedoms were to be restored, the economy was to be opened up. Since then:
· The Public Order and Security Act [POSA] was repealed, but replaced with the almost identical Maintenance of Peace and Order Act.
· Bills have been presented in Parliament to remove checks and balances on judicial appointments and to centralise power in the President.
· The Indigenisation and Economic Empowerment Act was amended to restrict indigenisation to diamond and platinum mining, but has been amended again surreptitiously so as to allow the whole mining industry to be indigenised.
· AIPPA was repealed, but the new regulations seek to maintain some of its odious aspects.
All this does seem part of a pattern that is regrettable as it contradicts the mantra “Zimbabwe is open for business”.