+A STUDY ON THE POLICIES AND LAWS RELATING TO FREEDOM OF PRESS AND EXPRESSION IN ZANZIBAR CHAPTER ONE

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1 +A STUDY ON THE POLICIES AND LAWS RELATING TO FREEDOM OF PRESS AND EXPRESSION IN ZANZIBAR CHAPTER ONE 1.0 BACK GROUND OF THE PROBLEM 1.1 Introduction Freedom of expression is a fundamental human right recognized in Article 19 of the United Nations Declaration of Human Rights , by stating that everyone has the right to freedom of opinion and expression. This right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Also Article 19 of the International Covenant on Civil and Political Rights (ICCPR) 2 guarantees the right to freedom of opinion and expression in very similar terms to the UDHR. These guarantees allow for some restrictions on freedom of expression and information but only where these are prescribed by law, pursue a legitimate aim and are necessary in a democratic society to protect that aim. It should be borne in mind that the guarantee of freedom of expression applies with particular force to the media, including the broadcast media. It is the mass media that make the exercise of freedom of expression a reality. 3 Press freedom and access to information feed into the wider development objective of empowering people by giving them the information that can help them gain control over their own lives. It is this empowerment that supports participatory democracy by giving citizens the capacity to engage in public debate and to hold governments and others accountable. The above statements emphasize that freedom of expression is both a fundamental human right and also key to democracy, which can flourish only in societies where information and ideas flow freely. However, such flow of communication does not happen automatically, but 1 UN General Assembly Resolution 217A (III), adopted 10 December UN General Assembly Resolution 2200A (XXI), 16 December 1966, in force 23 March Compulsory Membership in an Association Prescribed by law for the practice of Journalism, op cit., Para 34. 1

2 has to be fostered by a free, pluralistic, independent and professional media, and through national policies founded on four key principles, which are freedom of expression, quality education for all, universal access to information and knowledge, and respect for linguistic 4. While freedom of expression is an important right, it is not absolute. Both international law and most national constitutions recognize that freedom of expression may be restricted. However, any limitations must remain within strictly defined parameters. Article 19(3) of the International Covenant on Civil and Political Rights lays down the benchmark, stating as follows: 19(3) - The exercise of rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subjected to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals. Article 9 of the African Charter on Human and Peoples Right 1979 also provides for the guarantee of freedom of expression and information by stating that every individual shall have the right to receive information and right to express and disseminate his opinions within the law. Although it is well accepted that Press Freedom and Freedom of Information are the founding principles for good governance, development and peace; and that the new technology can provide enormous information benefits, but the later should be underpinned by measures that empower people to make use of it. It is therefore essential for Governments in power to commit themselves to remove all obstacles to Press Freedom so as to improve conditions for independent and professional journalism, and to empower citizens to engage in public debate. 5 4 Koichiro Matsuura, Director General of UNESCO, on the occasion of World Press Freedom, 3 May Koichiro Matsuura, Op cit. 2

3 Zanzibar is part of the United Republic of Tanzania. 6 Zanzibar merged with the then Tanganyika to create the United Republic of Tanzania. However, Zanzibar has exclusive jurisdiction over non union matters on its territory and has its own Executive, a House of Representatives and a Judiciary. Information is among non union matters. Each part of the Union has its own laws dealing and regulating the Information sector. Tanzania has a dualist system 7 requiring the state to incorporate international treaties to which it is a signatory into domestic law. The Union Government by signing an international treaty commits its two governments to a particular set of values and principles. In Zanzibar, international and regional treaties are not part of our domestic laws and therefore cannot directly be invoked in our courts. It is therefore upon the authorities in Zanzibar to identify international principles and standards that are desirable for application in Zanzibar and take initiatives (with necessary modifications) to domesticate those principles and standards in our laws so that the courts could apply directly. This kind of consideration is recognized by the Zanzibar Constitution Under its section 10(9), the Constitution provides that all Government s organs and its servants shall adhere and follow the international treaties on human rights and good governance. Then the issue is how far these rights under international/regional treaties have been realized particularly when right to information is an agenda. 1.2 Terms of reference The terms of reference provided in this task are: To make an immediate review to the Broadcasting Act reforms and recommend accordingly; To conduct a desktop study and make an in-depth review on the Zanzibar Constitution 1984, Media laws as well as other related laws, and policies 6 Article 1 of the Constitution of Zanzibar, Tanzania Human Rights Report 2007 incorporating Specific Part on Zanzibar, pg

4 and to identify those which hinders and supports press freedom and freedom of expression. To make research of other jurisdiction laws on right to information and media as a whole for purposes of adopting good practices into Zanzibar legislation. To draft documents on Stakeholders proposals for the Right to information and on Media Services and present the same to the Committee on Freedom of Expression and Press for discussion and inputs and; To make a final Stakeholders proposal on Right to Information and Media Services Bills that consolidate stakeholders and committee inputs that will be tendered to the House of Representatives. 1.3 Methodology of the Work The study encompassed desk research, online research and interviews. Documents related to efforts by a number of jurisdictions in the world to reform their legal regimes relating to Freedom of Press and Expression have been considered. Different stakeholders were participated in the process of conducting this study through stakeholders meeting. 1.4 Structure of the Report This report is divided into five Chapters. Chapter one provides background to the problem. Chapter two of the report deals with policies relating to media. These are the Zanzibar Information Policy and the Zanzibar Broadcasting Policy. In Chapter three of this report, laws relating to media services and right to information are reviewed. In chapter four researchers had an opportunity to look 4

5 other jurisdictions laws on right to information and media as a whole for purposes of adopting good practices into the proposed Zanzibar legislation. Finally, is chapter five which deals with summary, conclusion and recommendations. 1.5 Limitation The study has covered the International and Regional Conventions as well as constitutional provisions on freedom of press and right to information. Relevant provisions of domestic laws of Zanzibar have been reviewed. Failure to cover more issues of media was due to the required terms of the study and time constraints. CHAPTER TWO 2.0 MEDIA POLICIES OF ZANZIBAR Introduction Zanzibar government adopted Information and Broadcasting Policies 2006 and 2008, respectively. The Policies are generally progressive in outlook for the functioning of the information and broadcasting sectors in Zanzibar. They contain a number of positive provisions on freedom of press and expression although include some provisions which are incompatible with International Standards and Zanzibar Constitution which guarantee the freedom of expression. Generally, both policies lack provisions which hinder the exercise of freedom of press and expression. In this chapter such provisions are going to be identified. 2.1 Zanzibar Broadcasting Policy Government media outlets: The Policy recognizes the undisputed reality that government controlled broadcasters violate the freedom of expression, freedom of the broadcasting and editorial independence. It provides that: 5

6 Katika uendeshaji wa vyombo vya Serikali, Serikali ndiyo yenye uamuzi juu ya namna ya kuviendesha vyombo hivyo na pia kuamua juu ya masuala gani yanayopaswa kutangazwa 8 The policy directs for the establishment of the independent Public Service Broadcasting manned with experts and which shall be responsible to the public and ensure that broadcasted programs satisfy the intended public Broadcast regulatory body The African Commission on Human and People s Rights adopted a Declaration of principles on Freedom of Expression in Africa, provides that any public authority that exercises powers in the areas of broadcast or telecommunications regulation should be independent and adequately protected against interference, particularly of a political or economic nature. 10 Again the African Charter for Broadcasting 2001 requires that all formal powers in the areas of broadcast and telecommunications regulation to be exercised by public authorities which are protected against interference, particularly of a political or economic nature, by, among other things, an appointments process for members which is open, transparent, involves the participation of civil society and is not controlled by any particular political party 11. However, the Zanzibar Broadcasting policy is silent on the issue of the independence of broadcast regulatory body Programme Restriction The Policy purports to prohibit/restricts live discussion programs. It provides for the review of interview programs before being broadcasted and that language and message delivered according to existing traditions, customs and culture be considered section 3.1 of Zanzibar Broadcasting Policy 9 ibid 10 Adopted by the African Commission on Human and peoples Rights at its 32 nd Session, October African Charter for Broadcasting 2001, Regulation 2 under the heading General Regulatory Issues. 12 Zanzibar Broadcasting policy under section 5.1(a) (strategies). 6

7 2.1.4 Content and other restrictions: The Policy provides some restrictions such as prohibition of provocative language 13 and censorship of programmes before being broadcasted for the protection of customs, values and culture. 14 This is a good thing to have in the policy. The experience shows that political parties are not given equal right in government broadcasting. The Policy unsatisfactory rectifies the same but recognizes the realization of this right during the General election only. 15 Generally, the Zanzibar Broadcasting Policy to some extent is in line with the International Standard as far as the establishment of the Public Service Broadcasting is concerned. It contains a number of positive provisions on freedom of press and expression although it includes some provisions which are incompatible with International Standards and Zanzibar Constitution which guarantee the freedom of expression. It recognizes the undisputed reality that government controls broadcasters. The policy is silence on the issue of the independence of broadcast regulatory body. It should conform with the African Commission on Human and People s Rights which adopted a Declaration of principles on Freedom of Expression in Africa, as well as the African Charter for Broadcasting 2001 which require any public authority that exercises powers in the areas of broadcast or telecommunications regulation be independent and adequately protected against interference, particularly of a political or economic nature. It is therefore recommended that the Policy should explicitly guarantee the establishment of the independent broadcasting regulatory body so as to conform to International Standards on the protection of the freedom of expression and of the broadcasting, as provide by the Charter on African Broadcasting Policy alone does not suffice in protecting press freedom and freedom of expression. 13 Paragraph 5.1(a) (Strategy). 14 Paragraph 5.2 (a). 15 Paragraph 4.1: Policy objectives. 7

8 A legal instrument is required to be enacted so as to give effect to the implementation of the policy. It is therefore recommended to enact the Zanzibar Media Services Act for better implementation of the policy. 2.2 ZANZIBAR INFORMATION POLICY Among the features which need reconsideration in the Information Policy are the following: Government media outlets: The Policy states that Zanzibar Government owned media outlets. The Policy fails to mention that these media outlets should be independent from government and they protected against interference; especially political and economic interference. 16 It is well established that international and constitutional guarantees of freedom of expression prohibit government or party control over public media. The Supreme Court of Ghana, provides a succinct and powerful statement of this principle: The state-owned media are national assets: they belong to the entire community, not to the abstraction known as the state; nor to the government in office, or to its party. If such national assets were to become the mouth-piece of any one or combination of the parties vying for power, democracy would be no more than a sham. 17 It is recommended that the Policy should make a commitment in both law and practice: to transform all government media into public service media. the public service media should be independent from government interference, protected against political and commercial interference. public media outlets should be governed by a board which is protected against interference. public media outlets should be established and regulated through the legislature rather than the government. the editorial independence of public service media should be guaranteed; and 16 The comment base on the Declaration of Principles on Freedom of Expression in Africa, Principle VI. 17 New Patriotic Party v. Ghana Broadcasting Corp., 30 November 1993, Writ No. 1/93, p

9 the Policy shall specify the time limit for the establishment of the public service media Professional Codes of Ethics: the Policy provides professional codes of ethics one among them is to protect peace and build unity between citizen and the foreigners (section 8.3(xi)). In the light of the freedom of expression this is not the obligation of the journalists, provided that he or she is not infringing peace and unity. The stipulated ethic is a social or moral obligation. It is recommended the mentioned obligation to be reviewed or the Policy should be expressly state that this obligation should not have legal effect just is encouragement Protection of confidential sources of information The protection of journalists sources are not accorded specific protection in the Constitution, legislations and in the Policy, while in human right context there are explicit recognition of the importance for the freedom of expression in journalists not disclosing confidential information. In Goodwin v United Kingdom (1996) 22 EHRR 123, the European Court of Human Rights held that the protection of journalistic sources is one of the basic conditions of press freedom. However, the Court did not rule out disclosure completely and in all circumstances, instead it imposed very strict conditions; based on necessity and proportionality (i.e. the restriction must be proportionate to the legitimate aim pursued). Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest, and limit the ability of the media to function effectively. The goodness of Zanzibar Information Policy provides for the non disclosure of the sources of information as the journalist responsibility under the code of ethic. However it fails to provide it as a right and also it limit non disclosure for the true information only. 18 This limitation is contrary to the international standard which imposed very strict conditions on limiting the human rights based on necessity and proportionality. 18 See section 8.3(v) of the Zanzibar Information Policy. 9

10 It is recommended that the Policy shall explicit provides the protection of confidential sources of information as a journalist and media outlets right and commit itself for the legislative protection of the confidential source of information and review law which is contrary to this right Accessibility of public information The UN bodies have noted the public s right to know and to access information held by public authorities, as an aspect of the right to freedom of expression. For example, in his 1998 Annual Report, the UN Special Rapporteur on Freedom of Opinion and Expression declared: [T]he right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems. 19 In his 2000 Annual Report, the Special Rapporteur made the following observations on the nature of the right to freedom of information: 44. On that basis, the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles. Among the considerations of importance are: Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information; information includes all records held by a public body, regardless of the form in which it is stored; Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest, for example, operational information about how the public body functions and the content of any decision or policy affecting the public; 19 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and Expression, UN Doc. E/CN.4/1998/40, 28 January 1998, Para. 14. These views were welcomed by the Commission on Human Rights. See Resolution 1998/42, 17 April 1998, Para

11 As a minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government; A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest; All public bodies should be required to establish open, accessible internal systems for ensuring the public s right to receive information; the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal; The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself; The law should establish a presumption that all meetings of governing bodies are open to the public; The law should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions; the regime for 11

12 exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it; Individuals should be protected from any legal, administrative or employment-related sanctions for releasing information on wrongdoing, viz. the commission of a criminal offence or dishonesty, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty or serious failures in the administration of a public body. 20 Zanzibar like most countries of the world has no specific legislation or provision for provision of information as a statutory duty. The government officials have been reluctant to afford citizens access of public information due to regulation 114 of Government Order known in Kiswahili as Kanuni za Utumishi Serikalini. It is therefore recommended that the Policy should commit itself to adopting an effective freedom of information law, in line with the principles set out by the UN Special Rapporteur on Freedom of Opinion and Expression and commit itself that public information is easily accessible, guaranteed by law, to all citizens, including journalists. The policy gives a wide power to the government to abstain from releasing public information Media outlets and government s policies: The Policy requires the media to abide with and take positive actions to achieve the implementation of the government policies. 21 This is contrary with the very nature of the freedom of expression and the freedom of media. The media have the right to support or criticize the policies for construction purpose. Thus it recommended that the Policy should state clearly that any reference to media responsibility in relation with the government policies is a social and moral obligation which shall not in any way have the legal effect. 20 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and Expression, UN Doc. E/CN.4/2000/63, 18 January 2000, Para See

13 CHAPTER THREE 3.0 LAWS RELATING TO MEDIA AND RIGHT TO INFORMATION Introduction The media law is a wide subject. It includes Telecommunications, Information Technology, Defamation, Broadcasting, Copyright, Advertising, Confidentiality, Contempt, Privacy, Censorship, Firm Law, Freedom of Information, Internet and On-line Services. For the sake of this research and the context of Zanzibar, this study will concentrate on the under mentioned applicable laws that affects the Freedom of Expression and Freedom of Press. The study will highlight the legal weaknesses or gaps, the strength and the recommendations in accordance with the principles of laws. The following are the summary of the under mentioned laws. Other details concerning the laws in question are annexed at the end of this work. 3.1 Constitutional Framework In order to ensure enforceability of human rights conventions in our country, fundamental rights and freedom were entrenched in the Zanzibar Constitution, These rights and freedoms include equality of individuals, equality before the law, right to life, right to personal freedom, right to privacy and personal security, protection of freedom of movement, protection from deprivation of property, freedom of expression, right to freedom of religion, protection of freedom of assembly and association, freedom to participate in public affairs and right to work, and receive remuneration. With respect to right to freedom of expression, the legal and regulatory framework are stemmed from the very Constitution of Zanzibar Section 15 of the Zanzibar Constitution protects the right to privacy and security of an individual as follows: 13

14 Right to privacy and personal security 15.(1) Every person is entitled to respect and protection of his person, the privacy of his own person, his family and his matrimonial life, and respect and protection of his residence and private communication. (2) For the purpose of preserving the person s right in accordance with this Article, the state authority shall lay down legal procedures regarding the circumstances, manner and extent to which the right to privacy, security of his person, his property and residence may be encroached upon without prejudice to the provisions of this Article. The right to privacy is a broad set of rights which include the right to protection from violence and security threat. It also covers protection from encroachment by private individual or institution. The State is duty bound to ensure that there is adequate legal and regulatory framework which ensures protection of this right. Section 18 of the Zanzibar Constitution protects freedom of opinion and of speech and the right to information as follows: The freedom of expression 18.(1) Without prejudice to the relevant laws of the land, every person has the right to freedom of opinion and expression, and to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers and also has the right of freedom from interference with his communications. (2) Every citizen has the right to be informed at all times of various events in the country and in the world at large which are of importance to the lives and activities of the people and also of issues of importance to society. 14

15 The obvious question may be whether the freedom of press is incorporated in the freedom of expression. Othman Masoud, 22 in his paper Legal and Regulatory Framework of the Media in Zanzibar having cited several decided cases from India concluded that freedom of speech and right of information enshrined in the Zanzibar Constitution 1984 cover also the right to free press. Subsection (2) of section 18 of the Zanzibar Constitution 1984 guarantees every citizen with a right to be informed of various events in the country and in the world at large which are important to the society. Thus, right to information is a part of fundamental rights under section 18 of the Zanzibar Constitution Limitation of enjoying freedom of press and expression Although Article 18 of the Zanzibar Constitution seems to guarantee freedom of press and expression, it is clear that there cannot be such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. Under the very Constitution, all guaranteed rights and freedoms are enjoyed subject to limitations provided by laws and the Constitution itself. In A.K. Gopalan v. State of Madras 23 it was held that the whole purpose of these limitations is two folds, namely the freedom are not absolute but are subject to regulations and secondly, these put a limitation on the power of the legislature to restrict or limit these freedoms. In other words any limitation must be within the purpose and purview intended by the Constitution. Under the Zanzibar Constitution, the freedom of press and expression are enjoyed subject to certain restrictions. The words Without prejudice to the relevant laws of the land used in section 18(1) are intended to limit enjoyment of such freedoms by using relevant laws which are in force in Zanzibar. This clawback clause permits the restriction of guaranteed freedom since it is enjoyed subject to existing laws, which as they stand, impose extreme restrictions to such right. It is therefore commented that the very right is given by the right hand and taken away by the left hand. 22 Othman Masoud Othman, Legal and regulatory framework of the Media in Zanzibar, pg. 1 and 2, a paper presented in the Media Council office of Tanzania Zanzibar Office on the Occasion of World Press Freedom Day 3 rd. May AIR 1950 S. C. 27 quoted by Othman Masoud, Op. Cit pg. 2 15

16 Secondly, the limitation upon enforcement and the preservation of basic rights and freedoms provided under Article 24 of the Zanzibar Constitution, 1984 effectively stands as a blanket validation of all laws that offend the Bill of Rights. Article 24(1) of the Zanzibar Constitution 1984 provides: 24.(1) The human rights and freedoms, the principles of which are set out in this Constitution can be restricted by the law enacted by the House of Representatives save only to the extent that are necessary and acceptable in the democratic system. In any way that restriction shall not: (a) interfere with the right to freedom from torture, inhuman and degrading treatment; (b) interference with the human rights principles; (c) cause more effect to the society from the act that restriction is intended. From the above provision, it is clear that, the Constitution still allows the House of Representatives of Zanzibar to enact laws violating human rights if doing that is necessary and agreeable in the democratic state. Since there is no unanimous definition of democracy, there will never be a clear definition of democratic state 24. We are of the view that entrenchment of fundamental rights in the Zanzibar Constitution was not done in vain. It was done with intention that such fundamental rights and freedom should be exercised. It is therefore recommended that in order to guarantee freedom of press and expression in Zanzibar, claw-back clause under article 18 should be removed. Besides, having a guaranteed provision in the Constitution does not suffice. The Constitution provides just a framework and fleshes need to be filled in that framework by having specific law guaranteeing freedom of press and expression. Without having specific Act providing for procedures, manner and extent of enjoying such freedom will remain in media policies without being accessed by citizens. 24 Even historical dictators have been declaring in the State s Constitutions to be democratic. 16

17 3.3 Other Legislation Zanzibar Broadcasting Commission Act, No 7 of This Act, No 7 of 1997, enacted for the purpose of providing for the establishment of the Zanzibar Broadcasting Commission and for other matters related to it. It repealed the Zanzibar Broadcasting Corporation Decree No 25 of Section 3 of the Act provides that it shall apply to all persons carrying on business which involves:- the offering for sale, selling, letting on hire or dealing otherwise in broadcasting apparatus; the ownership and operation of a broadcasting service; the ownership and operation of a satellite dishes, busters and other equipment of that nature. The Minister may, by order published in the Gazette, exempt from the provisions of the Act any business or any category of businesses involving broadcasting; or any person carrying on any business or any category of such persons. The Zanzibar Broadcasting Commission is established under section 5 of the Act as an autonomous body corporate, with perpetual succession and a common seal, capable of suing and being sued using its name and capable of acquiring, holding and disposing of movable and immovable property in its corporate name. It is constituted of a Chairman who is appointed by the President, executive Secretary who is the Chief Executive Officer and also appointed by the President. Other members of the Commission are: not less than four nor more than eight other members appointed by the Minister, one of them being a representative of the frequency management office and one be an expert in broadcasting ; and a State Attorney from the Attorney-General s Office Zanzibar Broadcasting Commission 1997, Section 6. 17

18 Qualifications of members of the Commission include being a Tanzanian, not being bankrupt, and not being previously convicted of an offence involving morale turpitude or for which he was sentenced to imprisonment for a term of six months or more. Apart from a lawyer and an expert in broadcasting, education is immaterial on being member of the Commission 26. The term of office of the members is three years but eligible for reappointment for another period of three years. However, the Chairman holds office at the pleasure of the President. Section 7 of the Act provides for functions of the Commission which are:- issuing broadcasting licences; regulating and supervising broadcasting activities, including but not limited to, the relaying of sound, radio and television programmes from places in Zanzibar to places outside Zanzibar with the intention that such broadcasts are received regularly in the United Republic or any part of it maintaining a register of all persons licensed as broadcasters, dealers in broadcasting stations; Regulating the activities of broadcasters and their conduct of broadcasting as well as that of dealers in broadcasting apparatus; be responsible for the standardization, planning and management of the frequency spectrum available for broadcasting and to allocate such spectrum resources in such manner as to ensure the widest possible diversity of programming and optimal utilization of the spectrum resources, giving priority where possible to the broadcaster transmitting the maximum number of hours per day and to community-based broadcasters; 26 Ibid. 18

19 protecting policy, security, culture and tradition of Zanzibar not to be destroyed; inspecting institutions which carry on broadcasting business; and giving any direction to the broadcasting business which in its opinion deem necessary. The Commission shall also perform any other function which may be assigned to it by the President in writing under his hand or by or under any other written law. There shall be a Registrar who performs his functions under the supervision of the Commission. The Registrar is appointed by the Minister and may be a person holding an office of emolument in the public service and holds and vacates office in accordance with the terms of his appointment 27. According to section 10(4), the functions of the Registrar include:- to register all institutions which carry on broadcasting business in accordance with this Act; to issue a registration certificate to the operator of the broadcasting business; to cancel or not to register any institution which carries on broadcasting business which fails to comply with the specified conditions; to keep the register of the registration of institutions and owners of broadcasting business. Transmitting or receiving and transmitting, or otherwise operating a broadcasting service, dealing in broadcasting apparatus or doing or permitting anything to be done for which a licence is required under the Act, is not allowed unless an appropriate licence is possessed 28. Application may only be made by 29 :- 27 Ibid. Section Ibid. Section Ibid. section 12 19

20 a Zanzibari or Tanzanian; a Company registered in Zanzibar at least 20% of whose share holding is beneficially owned by Zanzibar Government; a Company not registered in Zanzibar but at least 30% of whose share holding is beneficially owned by Zanzibar Government which is not, directly or indirectly, controlled by persons who are not Zanzibaris. Under section 13 (3) of the Act, where the Commission decides to grant an application for a licence, it may attach conditions to the licence in relation to:- the frequencies that may be used in the operation of a station, the power limitations in respect of a station, the technical servicing and inspection of a station and any other technical specifications; the prevention of electric and other disturbances of radio reception or the transmission over any telegraph line; the broadcasting or non-broadcasting of reports, announcements, news or other information which is required to be broadcast in the public interest; and the location of a transmitter station, when applicable, and the specific geographical area to which the broadcast may be made. Any person aggrieved by a decision of the Commission granting or refusing an application may appeal to the Minister in the form and manner to be prescribed in regulations. The Minister may, from time to time, upon advice of the Commission, specify other matters or activities connected to broadcasting or apparatus in relation to which a licence shall be required in accordance with this Act Ibid. section 13 20

21 Section 15 of the Act provides for duties of licence holder and programme content. These includes:- to present all news in a factually accurate, impartial and non-partisan manner as allowed by the law; to present current affairs in a balanced, clear, factual, accurate and impartial manner; to encourage the development of Zanzibar and Zanzibari expression by providing a wide range of programming that reflects Zanzibar opinions, ideas, values and artistic creativity by displaying Zanzibar cultures and entertainment programmes; to serve the needs and interests and reflect the circumstances and aspirations of Zanzibar men, women and children in a democratic Zanzibar society; to produce and maintain programmes of high standards; to make maximum use of Isles creative and other resources in the creation and presentation of programming; to limit advertisements to a maximum of 30% percent of the total daily broadcasting time; to contribute through programming to shared national consciousness, identity and continuity; to provide programming that caters for culture arts, sports and education pertaining to Zanzibar and Africa; to comply with generally accepted standards of journalistic ethics in the editing of any programme to be broadcast as formulated in the Code of Conduct for the Media Professions; 21

22 to keep and store sound and video recordings of all programmes broadcast for a minimum period of three months after the date of transmission of the broadcast, or for such further period as the Commission may direct; to disclose the name of the producer of every programme at the end of transmission of a programme; and to respect copyright and neighboring rights obligations in respect of any broadcast material. Breach of any of the conditions entitles the Commission after giving an opportunity to be heard to issue any of the following orders 31 :- warning the licence holder; directing the licence holder to effect a programme charge within a period not longer than thirty days from the date of receipt of the directions; directing the licence holder to disclose, free of charge and in such manner as the Commission may direct, the finding of the Commission; imposing a fine on the licence holder, not less than one million shillings (1,000,000/=); suspending the broadcasting licence for a period determined by the Commission; or revoking the broadcasting licence. Section 17 is about right and obligations of broadcasting. These include broadcasting a counter version presented by any person or body of persons 31 Ibid. section

23 affected by an assertion of fact in any programme transmitted that the assertion of fact is in fact false. However, a licence holder is not under obligation to transmit a counter version if:- the person or organization concerned has no direct interest in the transmission of the counter-version; or The counter-version is not of reasonable length, and in particular, if it is substantially longer than the part of the broadcast which dealt with the false assertion of fact. The funds and resources of the Commission shall consist of 32 :- such sums as may be provided for the purposes of the Commission by House of Representatives, either by way of grant or loans; such sums as the Commission may receive by way of grant-loan from any person or organization; such sums as the Commission may, from time to time, with the consent of the Minister, borrow for the purposes of the Commission; such sums as the Commission may, in any manner, become payable to or vested in the Commission either under the provisions of this Act or any other written law, or incidental to the carrying out of its functions; 40% of the revenue collected by the Commission. Under section 25 of the Act, the Minister may, by writing under his hand, give the Commission directions of a general or specific nature and the Commission shall comply with every such direction. Section 26 of the Act provides for a list of offences. These are:- carrying on the business of a broadcaster, or a dealer in broadcasting apparatus without an appropriate licence; 32 Ibid. Section

24 contravening or failing to comply with the conditions of a broadcasting or other licence under the Act; failing or refusing to furnish a return or to supply information in the manner and in the time prescribed or furnishing a false or in complete return or supplying false or incomplete information; or on being required to do so, failing or refusing to produce to an inspector or a police officer a licence or a book, record or document relating to any broadcasting apparatus which is in his possession or under his control; or interfering with or obstructing the transmission or reception of any radio communication; Intentionally, delaying or obstructing an inspector or a police or other authorized officer in the exercise of powers conferred upon him by or under this Act; failing or refusing to comply with any order or direction lawfully given to him by the Commission; failing or refusing to comply with the terms and conditions of the licence he holds; making a declaration or statement which he knows to be false in any material particular or does not know or believe to be true, or knowingly making use of a declaration or statement or document containing the same, Penalty for the above offences is fine not less than five million shillings (5,000,000/=) or to imprisonment for a term not exceeding twenty four months or to both that fine and imprisonment. A court convicting a person of an offence under the Act may, in addition to any penalty that it may impose, shall order the forfeiture to the government of any broadcasting apparatus or other material in relation to or in connection with or by means of which the offence was committed. 24

25 RECOMMENDATIONS: The Act encourages poor performance, lack of reasonability and inefficiency. It encourages interference, lack of independence and defeat the concept of separation of powers. It gives wide discretionary powers to the minister, registrar, the Commission and the right to be heard is not given contrary to the principle of natural justice. It also contravenes section 18 of the Constitution of Zanzibar, 1984 and restricts the flow of information The Registration of News Agents, Newspapers and Books Act 1988 Section 3 of the Act empowers the Minister responsible for information to appoint the Registrar of Books and Newspapers to perform the duties and exercise the powers imposed and conferred upon the Registrar by the Act and rules made there under. The Act however does not provide for qualifications of the Registrar. Section 7(2) of the Act empowers the Minister to exclude any specified person or class of persons or institution from the operation of all or any of the provisions of the Act in respect of registration, either absolute or subject to such conditions as he may think fit. This provision leads to double standards and discrimination and is contrary to a constitutional principle of the equality before the law as advocated under section 12 of the Zanzibar Constitution Part IV of the act concerns bonds that no person shall print or publish any newspaper in Zanzibar unless there is in force, duly executed, registered and delivered by him to the Registrar a bond in the prescribed form in such sum as may be specified in the notice with one or more sureties as may be required and approved by the Minister 33. According to section 17(1) of the Act, printing in respect of any newspaper by or on behalf of any political Party registered under the Act no. 5 of 1992 of the United Republic or of the Revolutionary Government of Zanzibar is excluded from this requirement. Further more, the Minister is vested with discretionary powers to exclude any person from this requirement 33 The Registration of News Agents, Newspapers and Books Act no. 5 of 1988, Section 18(1). 25

26 either absolutely or subject to such conditions as he may deem fit. Again this is against the principle of equality before the law guaranteed under the Constitution. Section 30 of the Act empowers the Minister to suspend publication of any newspaper if he is of the opinion that it is in the public interest or in the interest of peace and good order so to do. In the same view, the Minister under section 31 is empowered to prohibit publication of newspaper. It shall be an offence under section 33 for any person, after such orders have been made to print or publish or cause to be printed or published the newspaper so prohibited. Also it is a crime to sell, offer for sale or expose for sale, distribute or exhibit the prohibited newspaper. Section 34 of the Act empowers the President to prohibit the importation of publication or importation of any part or future issue thereof, if he is of the opinion that the importation of such publication would be contrary to the public interest. Such discretionary powers of the President and the Minister are exercised without giving the other party an opportunity to be heard which is contrary to section 12(6) (a) of the Zanzibar Constitution. Section 39 of the Act gives restrictions on collection and distribution of news and news material in Zanzibar. The section provides: 39 (1) No person other than the holders of written authorizations issued by the Director in that behalf shall: (a) Collect or cause to be collected in Zanzibar any news or news material for the purpose of dissemination; or (b) Distribute or cause to be distributed, whether within or outside Zanzibar any news or news material intended for dissemination collected within Zanzibar; Provided that no person shall be entitled to a written authorization unless he is: (i) a local news reporter (ii) a freelance reporter; (iii) a foreign news agent. 26

27 Section 39(2) of the Act gives the Director of Information Services discretion to issue to any person, after application and upon payment of the prescribed fees if any, issue in writing authorization upon such conditions as may consider fit provided that the Director may, without assigning any reasons thereof refuse to issue any authorization or suspend or revoke any authorization issued by him. A person aggrieved by any refusal by the Director to issue an authorization, or any condition specified in the authorization may appeal to the Minister whose decision shall be final and conclusive and shall not be subject to review by any court 34. Section 40 of the Act empowers the Minister to revoke any authorization issued by the Director. Section 48 of the Act creates seditious offences as follow: 48(1) Any person who- (a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; (b) utters any word with a seditious intention; (c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; (d) imports any seditious publication, unless he has no reason to believe that it is seditious, shall be guilty of an offence and shall be liable upon conviction to a fine of not less than five thousand shillings but not exceeding fifty thousand shillings or imprisonment not exceeding five years or to both such fine and imprisonment and such publication shall be forfeited to the government. Sedition has far reaching effect in so far as freedom of speech is concerned and such, the regulation of media content because it touches matters relating to Government and politics. The experience in most African countries shows that sedition is widely invoked to confront political statements and statements in the press which are viewed as against the establishment. The offence has been the 34 Ibid. section 39(3) and (4). 27

28 subject of extensive discussion and major law revision in various countries. It has one of the vaguest definitions, as such; obtaining conviction for the offence is always an uphill task for any prosecutor. In Boucher v. The King (1951) 2DLR 369; 382 Mr. Justice Kellock of Canada stated that Probably no offence has been left with such vagueness of definition. It is there recommended to be repealed. Other offence under section 48(2) is being in possession of any seditious publication without lawful excuse. Also a printing machine 35 used for or in connection with the printing or reproduction of a seditious publication may on conviction be ordered to be forfeited to the government. Also under subsection (6) of section 48, when the proprietor, publisher or editor of a newspaper is convicted of printing or publishing a seditious publication in a newspaper, the court may, in addition to any other penalty it may impose, make an order prohibiting any further publication of a newspaper. Part VIII of the Act concerns defamatory offences. Section 53 defines the offence of libel, that any person who, by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words or other sounds unlawfully publishes any defamatory matter 36 concerning another person, with intent to defame that person, shall be guilty of the offence termed libel. If the published matter is true and that it was for the public benefit that it should be published, or that it is privileged on one of the grounds mentioned in the Act, the offence can not stand. Section 57 of the Act provides for cases in which publication of defamatory matter is completely privileged. These are: 35 According to section 48(11) of the Registration of News Agents, News Papers and Books Act 1988, printing machine includes a printing press, copying press, typesetting machine, photographic, duplicating or engraving apparatus, or other machine or apparatus used for or in connection with printing or reproducing publications, and type, appurtenances and equipment thereof. 36 According to section 54(1) of the Act, defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person, in his profession or trade and by injury to his reputation, and it is immaterial whether at the time of the publication of defamatory matter the person concerning whom such, matter is published is living or dead. 28