By Dr Tafataona Mahoso
TWO of the functions of the Zimbabwe Media Commission are provided for in Section 249 (1) (c) and (d) of the Constitution as follows:
(c) to monitor broadcasting in the public interest and, in particular, to ensure fairness and diversity of views broadly representing Zimbabwean society;
(d) to encourage the formulation of codes of conduct for persons employed in the media and, where no such code exists, to formulate and enforce one;
Significantly, these two functions do not set up a dichotomy between State-owned media and broadcasting services, on one hand, and private media and broadcasting services on the other.
Indeed, regardless of recent past history, this unity is what one would expect in terms of future media development.
The following are some of the reasons for assuming one national media terrain as an ecosystem in which citizens will be expected to exercise and enjoy their various mediated freedoms:
λ First, the idea of one media ecosystem in terms of citizen rights is consistent with the technical growth of what is referred to as convergence. This is the situation where one device, say a computer, can serve interchangeably as a production studio, a telephone, a television and radio receiver.
We are told, for instance, that, with the arrival of streaming technology, broadcast monopolies are a thing of the past.
λ Second, although in Zimbabwe there has been a tendency to view allegations of partiality, discrimination and propaganda as applying only to the public broadcaster, the global trend is for these allegations to be directed against private media conglomerates.
Allegations of peddling fake news, incitement, hate speech, racism and misogyny are daily levelled against ‘private’ players, some of the latest being against YouTube.
λ In the third place, when it comes to the struggle to safeguard free and fair elections, the biggest offenders, for instance in US elections, have been private players.
See, for instance, Robert Spero’s classic book The Duping of the American Voter: Dishonesty and Deception in Presidential Television Advertising.
λ Last but not least, African relational philosophy itself has always treated a society’s whole communication structure as one ecosystem symbolised usually by the call-and-response dariro.
According to African philosophy, the best celebrated resolutions of conflict, dispute or controversy are not the judgments of individual judicial officers which, in Roman-Dutch law, often bear the name of the presiding judge.
The best precedents are set in those cases of difficult-to-resolve conflicts and disputes which are solved, however, without going to court.
It is obvious that in terms of the linear values of Roman-Dutch law, the question that would be asked is: How then do you build the court record if the best precedents are those which do not reach the courts?
The African would say the record or evidence is the solidarity, the peace, the co-operation and mutual understanding prevailing among those who once fought or disagreed with one another.
The peaceful community is the proof.
Peace is the proof.
Even in the Western system, there has arisen the insight that disputes which have caused war in history should never be taken through the adversarial process of litigation because such a process is likely to inflame passions and worsen the disputes.
Put another way, the court record of cases judged in terms of traditional Roman-Dutch law is a celebration of adversarialism and therefore a foregrounding of failures by ordinary people and communities to resolve disputes for and among themselves.
This approach ensures that, sooner rather than later, communities forget how to resolve disputes among themselves without resorting to adversarial law.
Long before the invention of interactive digital technologies, Africans designed the dariro as the best structure to be used by those in search of mutual understanding and reconciliation.
The African circle, dariro, is a moral, judicial and aesthetic structure of such great flexibility that it had to be repeated in almost all African architectural structures, including Great Zimbabwe and related monuments.
Professor Chimundu in Duramanzwi Guru ReChiShona defined dariro as: “Denderedzwa rinotamba vanhu mukati.
Dariro kurongana kwevanhu kana zvimwe pachibuda mucherechedzo wedenderedzi unosara pakati. (The dariro defines the people’s stake as open ground in its middle).
Kana vanhu vari mudariro vose vanenge vachionana meso avo. (In the dariro, all participants can see one another).”
The African circle as an aesthetic structure puts the performer and the audience in one continuum.
The performer is part audience and part performer.
The roles can also be inter-changed.
The link between the two lies in the so-called ‘call-and-response’ mechanism (Kuparura or kushaura nekutsinhira kana nekugadzirisa zvisinga tsinhirike kuti zvizotsinhirika).
Therefore, the dariro is a political, educational, moral and aesthetic structure which embodies the relationship between those chosen by the same dariro/dare to lead (kuparura/kushaura), on one hand, and those who have chosen them and who confirm their leadership through response (kutsinhira or kugadzirisa).
Given the preceding, Section 61 (4) of the Constitution of Zimbabwe is problematic, since it appears to entrench polarisation by setting up a dichotomy between ‘private’ and State-owned media while also appearing to contradict itself, as follows:
Section 61 (4) All State-owned media of communication must –
(a) be free to determine independently the editorial content of their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinions:
This provision appears to have been motivated by immediate political needs and resentments which perhaps should not skew the drafting of a long time document such as the Constitution of Zimbabwe.
To demonstrate, let us imagine that a new administration decides that the State will no longer own or run any mass media services which then become all private.
What then happens to this provision?
Is the nation then supposed to imagine that the values of independence, diversity and impartiality now no longer matter because there are no longer any Sate-owned media of communication?
And what is intended by first granting that: “All State-owned media of communication must…be fee to determine independently the editorial content of their broadcasts,” and then commanding the same to be ‘impartial’ and to “…afford fair opportunity for the presentation of divergent views and dissenting opinions,” determined from outside their editorial policy?
This provision begs the question: If “All State-owned media of communication must…be free to determine independently the editorial content of their broadcasts,” who, in his right state of mind, would want and dare to regulate the same ‘independently’ determined content?
And how is that supposed to be done?
This is no laughing matter.
One organisation decided recently to sue every entity which has anything to do with media regulation and the monitoring of election coverage, using Section 61 (4). In Firinne Trust and Valerie Ingham-Thorpe and Brian Desmond Crozier versus Zimbabwe Broadcasting Corporation and Four others:
The judge twice invited plaintiff’s counsel to present the sort of draft order which the High Court could issue to respondents within the confines of the Constitution.
Twice the Court rejected the draft order, stating that:
“By virtue of the Constitution and various pieces of legislation referred to above, the applicants, like any other citizen of this country, have a clear right to receive fair, unbiased and divergent views to enable them to make informed choices.
Partisan broadcasts and skewed reporting lead to polarity and threaten national peace.
There can be no other remedy but to interdict wrongful conduct.
But an order of court must be efficacious.
It should not be a pious exhortation.
It must be enforceable.
Mr (D) Coltart evidently realised that the applicants’ amended draft order, as was the original one, was impractical and incompetent.
He applied to amend it further.
The application was granted on condition that if any of the respondents wished to respond to the further amendment they were free to do so before I wrote the judgment.
But the final draft order is no better than the previous two.
The relief sought is imprecise and seeks nothing more than what the Constitution and the legislation already provide.”
Elsewhere in the same judgment, the judge had said:
“As pointed out already, the applicants’ affidavits are long-winded.
They are argumentative.
Much the same points could have been made with far less verbiage.
Admittedly pleading is a matter of style and differs from pleader to pleader.
But in this matter the pleadings are burdensome.”
Three things seem clear.
First, the lawyers for complainants are testing the waters, wielding a new Constitution, and are being excessively adversarial.
Second, in view of the Constitution’s own Chapter Two on National Objectives, Section 61 (4) (a), (b) and (c) is problematic.
The judge’s finding that: “Partisan broadcasts and skewed reporting lead to polarity and threaten national peace,” cannot be restricted to State-owned media alone, even if for now the Constitution appears to say so.
Polarity or polarisation, by its nature, manifests at least two sides.
In the third place, it seems obvious that if Section 61 (4) (a), (b) and (c) is not improved, there will be more problematic cases as muddled as HC23/18 (High Court Case held in Masvingo).