Policies and Legalities surrounding Capital Radio

Capital Radio is the first private broadcaster in Zimbabwe. It has been broadcasting since 28 September 2000 in the absence of any broadcasting regulatory framework and following a Supreme Court ruling on 22 September which nullified the state's broadcasting monopoly. Police on the night of October 4 located and raided the studios of the broadcaster at Harare's Monomotapa Hotel. Various workshops on the liberalisation of the airwaves have prepared this statement, clarifying much of the confusion around the legalities of Capital Radio broadcasts and the regulations currently in place.

authors: Mike Auret and Gerry Jackson

History 
The directors and shareholders of Capital Radio have both been prevented from broadcasting by the ZBC at various times in the past. Gerry Jackson hosted a radio show on Radio 3, which was closed down because she allowed people to talk about the conduct of the police during the riots in 1997. Michael Auret was at various times obstructed or prevented from airing adverts and programmes for the National Constitutional Assembly on constitution making, The Legal Resources Foundation on voter education, the Movement for Democratic Change for its campaign and at other times was charged exorbitant rates to air public health programmes against HIV/AIDS on behalf of the Zimbabwe National Family Planning Council. These should have benefited from a subsidy, as they were part of the public mandate of what was supposed to be a Public broadcaster; nonetheless they actually attracted a higher premium than even commercial broadcasts.

Without any channel to broadcast in the manner they wished, Gerry and Mike decided to make application to the Supreme Court to uphold their right and the right of Zimbabweans to Freedom of Expression by overturning the monopoly of ZBC on broadcasting and set up their own station that would allow Zimbabweans to speak.

Initially at the advice of our legal counsel at that time, the PTC was cited alongside the Minister of Information and the ZBC as respondents because it was believed at that time that the PTC would have a role to play as licenser of frequencies. This proved to be unnecessary, however, because once Section 25 of the Broadcasting Act and section 14 of the Radio communication Services Act were repealed they left a legislative vacuum as regards the licensing of a radio broadcaster and the allocation of a frequency. The Supreme Court thus removed the PTC from the proceedings and it was thus no longer necessary in law to apply to them for a frequency. All Jonathan Moyo’s statements to the contrary were untrue and where they implied that we were acting in a criminal manner they were defamatory for which we will be taking action against him and the publishers of those statements.

Obviously this situation was not ideal because anyone at that stage could use the absence of legislation to choose a frequency and start broadcasting. As a result of this situation the Supreme Court felt that it was in the interests of society that the relevant Ministry be given the opportunity to regulate the frequency allocation before it created the conditions for a free for all. The Supreme Court thus asked the directors of Capital if we could try and settle the matter with the Ministry of Information by proposing that we allow them 60 days in which to prepare the regulations and to license us under those regulations. We made this proposal on the 18th September. 4 days later on our return to court we were told that Jonathan Moyo had said that it would be "over his rotting corpse" that we would get a license and his counter proposal was that we wait for legislation to be passed in 2001. (At a later hearing Jonathan Moyo repeated to our legal counsel that it would be "over his dead body" that Capital would receive a license. Since he has already pre-judged the issue we cannot obviously trust his proceedings).

Government has negligently failed to provide for regulation of frequency allocation when the opportunity was given. It is the duty of the Minister and the Ministry of Information to ensure that they have adequate legislation in place to cover all eventualities and that that legislation conforms to our constitutional values. The Minister and Ministry failed to perform their duties in this regard. As a result the Supreme Court had no option but to strike down section 25 of the Broadcasting Act which guaranteed the ZBC a monopoly and sec 14 of the Radio communication Services Act that prevented anyone from owning a transmitter. By implication section 12 and 13 of the Radio communication Services Act were invalidated as they applied to Radio Broadcasting stations. Section 12 and 13 provided for the allocation of frequencies by the PTC and the inspection of equipment. These were invalidated as regards radio broadcasting but remain in force for other radio communications such as pagers and walkie talkies.

The result was a situation was created where there existed no provision for the allocation of frequencies for broadcasters and no mechanism for regulation. Since we had been waiting for 5 years for the Ministry of Information to act to liberalise the airwaves and had tried on many occasions to help draft the legislation we were not going to wait any further for the Ministry to drag its heels. Since no legislation existed to prevent us from doing so, we imported our equipment lawfully (and have the documentation to prove it) set the equipment up - tested the broadcast on 100 FM, found too much interference and moved to 90 FM. 

There was no irresponsibility in this conduct because we had given the Minister the opportunity to be able to put in place the regulations to regulate frequency allocation and he had refused. We knew that this was not an ideal situation but we were not going to be prejudiced because the Ministry refuses to do its job. The Ministries refusal to make its legislation conform to the constitution had continued for 5 years. Every year we were told that broadcasting would be liberalised to bring it in line with the constitution and every year we went to workshops with the Ministry and helped them draft legislation and lobbied them around different aspects but they steadfastly refused to make the policy into law. We were not going to be continually prejudiced by the negligence and obduracy of the Ministry of Information.

Jonathan Moyo's assertions, therefore that we were irresponsible and in fact criminal for allocating ourselves a frequency are untrue. In fact it was he who was irresponsible for allowing legislation to be struck down (which he knew would happen from months before, because it was common knowledge that the Econet case provided the precedent for the success of our application) without taking the opportunity to put in place the right legislation.

Jonathan Moyo then said he would arrest us for not complying with sec 12 and 13 of the Radio Communication Services Act, which, as already stated, no longer applied to us. This was confirmed By High Court Judge Elizabeth Gwaunza in her judgment granting us an order preventing the Chief of Police and the Minister of Information from interfering with us or our equipment. Despite confirmation of the legal position and the order itself the police and the Minister raided our premises for which the policemen in charge now face contempt of court charges. Their actions were basically illegal in light of the court order obtained by us and thus the Police present were guilty of breaking and entering and theft.

As a result of the confiscation of all our equipment we are now applying for all our equipment to be returned except for the transmitter and antenna which we are now once again not allowed to own under the new regulations. We are also going to take action against the Minister for defamation. Finally we will be going back to the Supreme Court to uphold our rights to freedom of expression by striking down the unconstitutional regulations that have been put in place.

Our next application to the Supreme Court will first contest the manner in which the regulations have been promulgated, that is we will contest the constitutionality of the Presidential Powers (Temporary Measures) Act itself which allows the president to rule by decree for a period of 6 months. The Act allows the President to make law, which only has to be brought before parliament within 6 months. It was this act that was used to promulgate the new regulations and we believe the act to be contrary to our democratic rights as they are protected in the constitution.

The Regulations 
In coming up with the new regulations the Minister did not consult with all stakeholders in the industry as promised, in fact he did not even consult the wealth of information given to the Ministry over the last 5 years by stakeholders and consultants at Ministry workshops. All he did was to ask the law firm of Hussein Ranchod to come up with regulations. The lawyers at this firm had never, to my knowledge, participated in the discussions and lobbying around broadcasting over the previous 5 years and thus they just researched different regulations all over the world basically to find precedents for the different provisions Jonathan Moyo had put on his wish list. We will go through these with our objections.

Cross ownership
The Minister has said that nobody who owns an advertising agency, a television production house or a newspaper should also be allowed to operate a broadcasting station. There seems to be absolutely no reason for the provisions regarding advertising agencies and production houses. Broadcasting is a business like any other and those involved in broadcasting may well be involved in production or in an advertising agency in the same way that garage owners may be involved in businesses that supply fuel, fix cars, sell fast food and any other that they feel like. They are not restricted from being in other businesses by legislation. Since people have never been able to broadcast in the past it is logical that they have been involved in other media related industries such as television and radio production or advertising. To make this illegal means that these people have to sell these businesses just for a chance to broadcast which may never come about. This can only be described as completely absurd and is contrary to our rights and freedoms as contained in our constitution in that they restrict what businesses we may be engaged in for no apparent reason.

Although some countries do prohibit the ownership of newspapers and broadcasting there is no good reason to do so here. The reason that these are sometimes prohibited in other countries is that where giant media empires exist like those of Berlusconi in Italy, Ted Turner In the United States and Rupert Murdoch in the whole world, the state has to ensure that not just one private voice is heard but that there are many. Currently in Zimbabwe there are no private broadcasting voices and so this is not a problem. In addition if the state were to give out all available frequencies which is what we recommend then there would be enough viable players for this not to be a problem. 

These provisions are once again unfair in that they do not apply to the state media. The state already owns ZBC and Zimpapers and is cross subsidizing them and yet the provisions do not apply to them.

Local Content 
We approve of local content quotas but not where they exist merely to make it impossible to broadcast in a viable fashion. Local content quotas are designed to ensure the growth of the local television and radio production industry, which is very much needed and has been successfully used in Australia to grow their industry. In Australia the local content quotas introduced in the 1950s have ensured a growing local production industry and a growing audience for local production which has translated into a viable international film and television production industry. The percentages, however, have to be reasonably achievable by the local production industry and also the desire for local content and the appreciation of it amongst the audience is something that has to be grown over time.

If the current provisions of 75% local content for television and 50% local content for radio, were implemented, firstly it would be doubtful whether the local production industry would be able to match such quotas having been decimated by the neglect of the Ministry of Information and the Department of Culture for so long. If they were able to meet it, the quality would ensure that audiences freedom of choice would be constrained in that they would be forced to watch badly produced programming in the vein of ZBC, which is what they have been crying for an alternative to. As a result people will exercise their right to watch outside channels via satellite and will still not promote the local industry. 

In addition, anyone in the industry can tell you that the cost of local production is much higher than that of buying international productions and these provisions would immediately make broadcasting non viable and unsustainable and the Ministry will have achieved its objective of constraining freedom of expression since no-one will be able to afford to broadcast under these provisions. The unattainability of the current provisions can be seen from the fact that the national broadcaster itself does not and will not be able to comply with these provisions. Our recommendation would be that stakeholders be consulted, an audit of production capacity taken, and a more modest total imposed which can be grown as the production industry grows.

Composition and process of the Regulatory Authority 
Airwaves are national and public resources which are finite and therefore need to be administered in an impartial manner which will serve all of the public. For this reason their regulation needs to be conducted independently of the state as the state has an interest in the process (as can be seen in our history over the last 27 years). The South African IBA has a publicly appointed body to administer the airwaves. These people are publicly nominated and selected by a panel of respected judges and people of integrity. The selection process is usually transparent as it is broadcast live on radio and television and the candidates are chosen for their knowledge of issues such as culture, production, content, the law, frequencies etc. They cannot be hired or fired by the Minister and final arbitration does not rest with the Minister. They are guaranteed a security of tenure similar to that of the Judiciary in order to prevent state interference.

This is how it should be and the current regulations are only designed to leave control of distribution to one man, which cannot be in the interests of the general public. We have continually lobbied for a publicly chosen, representative body and we have been continually ignored.

Amount Of Frequencies 
Although frequencies are a national resource, there are many of them and we are only currently using a fraction, so to limit national broadcasting to one other broadcaster is ludicrous in the extreme and designed once again to ensure that there is a limit on freedom of expression through broadcasting and control over this station in the way that KANU in Kenya controls its private broadcaster. Licenses should be given for all frequencies available. We have waited for so long for this resource and we are the last country in SADC to provide it.

The Minister has not provided one good reason why all frequencies available should not be given out to broadcasters, whether they are community, national commercial, local commercial, or national public. The only reason the state has (it would appear) is its desire to limit the freedom of expression of the people of Zimbabwe.

Foreign Ownership and ownership by Permanent Residents 
Broadcasting is an expensive undertaking and may require foreign money in order for it to be established and remain viable. This is because either the local investment is not available or it may be more expensive to obtain than foreign investment. There is possibly good reason to limit the amount of this involvement in the ownership of broadcasters by foreigners but certainly no reason to outlaw it completely. To give an example e tv in South Africa has a 20 % stake from Time Warner – this allows them access to all of Time Warner’s programmes and films, which are extensive, and if it wasn’t for this participation they would have to buy these programmes and they would never have survived. Even with the foreign help that they do have e tv have and have had serious viability problems in a market which has much larger advertising budgets. It should be noted here that the rights and freedoms of permanent residents are also protected under our constitution.

Provision for One Hour broadcasting for the State 
This provision is untenable. The state and ZANU PF, which are synonymous, have completely dominated the only broadcaster for 20 years and they have prevented all other voices from being heard (as extensively catalogued by the Media Monitoring Project and MISA). After private broadcasters are allowed to broadcast, the state and the ruling party will still be able to use the state broadcaster in the way it has been used in the past 20 years. Why then should our rights of freedom of expression be constrained by allowing the state to abuse us as broadcasters as well, by coming on air? The Public broadcaster has a public mandate to allow government propaganda to reach the people – the state must thus continue to use these channels for its propaganda and not abuse ours.

These are just some of the objections we have but we are currently working on a more detailed and extensive challenge to the regulations which will be available when they are lodged with the Supreme Court. It is patently obvious to everyone that the legislation would like to return us to the situation that existed prior to the Supreme Court ruling, thus once again trying to overturn, by undemocratic legislation, the order of the highest court in the land. In addition it is clear from the legislation and from Moyo’s statements that he has no intention of treating Capital in a fair and just manner if and when they do apply for a license. He would thus like to once again restrict our freedom of expression and this we do not accept.

We will continue to pursue all legal means at our disposal, but we can only win the battle for a free media if we all stand together.

Source: MDC

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