The Review of the Information and Media Policy with emphasis on a detailed memorandum on the following:
a. The sufficiency of legal and policy framework within which the media industry operates regarding the modern methods of information gathering and dissemination;
b. Guidelines that have been put in place regarding the new media by;
i. general public
ii. professionals and
c. What challenges being faced regarding the use of modern methods of news information gathering and dissermination;
d. What strategies have been put in place to promote responsible use of the modern methods of information gathering and dissemination; and
e. Making recommendation to the Executive on the way forward.
are the main focus of this article.
The presentation, focuses mainly on the legal and policy framework within which the media industry operates in the 21st century, based on the Zambian Constitution and Literature review on the works done by the late Professor Francis Peter Kasoma, the late Professor Alfred Chanda and the late Honorable George Kunda. Apart from expounding on the theoretical and practical aspects, problems and hopes on the above issues, a comparative analysis of policy related to information and media in general is analyzed.
No discussion about the Review of the Information and Media Policy can be complete without a reference to the Zambian Constitution with emphasis on the Freedom of Expression and Freedom of the Press. Freedom of Expression plays a vital role in democracy. Part III of the Zambian Constitution, Protection of the Fundamental Rights and Freedoms of the individual provides that:
It is recognized and declared that every person in Zambia has been and shall continue to be entitled to fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place and origin, political opinions, color, creed, sex or marital status, but subject to the limitations contained in this Part, to each and all of the following, namely:-
b. Freedom of conscience, expression, assembly, movement and association;
LEGAL AND POLICY FRAMEWORK WITHIN WHICH THE MEDIA OPERATES
Article 20 of the Zambian Constitution guarantees Freedom of Expression and the Press.
20 (1) provides that:
Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impact and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.
On the other hand, Article 20 (2) protects freedom of the press as provided:-
“subject to the provisions of this Constitution a law shall not make any provisions that derogates from freedom of the press”.
It is a known fact that the broad legal framework within which the media operates derives in the first instance from international law. The Universal Declaration of Human Rights (UDHR) is Customary International Law, which forms the way in which all other law is interpreted. In Article 19, the UDHR provides a fundamental guarantee of the right to freedom of the media. This is echoed and elaborated in Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
It provides that:
“Everyone shall have the right to freedom of expression; the right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.”
This is a treaty, which is binding upon any state that ratifies it. But of course, at national level, freedom of expression and of the media will be affected by laws at several different levels, that is, the constitution as the basic or supreme law of the land; statutes, passed by the legislature or Decrees, regulations or other statutory instruments which will usually have lesser force than statuary law.
On the face of it, the guarantee afforded by Article 20 (1), in accordance to the Zambian Constitution, seems very broad. In providing for freedom of expression so broadly, the Constitution has recognized the important role freedom of expression plays in a democratic process. Similarly, by prohibiting the legislature from passing laws that may derogate from the freedom of the press, the Constitution underscores the dispensable role the press plays in the realization of freedom of expression. Without a free press, freedom of expression will just be an illusion.
In principle, the Constitution, Statues and Decrees will relate to each other in a harmonious fashion. If a country has ratified the ICCPR or its regional human rights treaty, then its provision will be reflected in the constitution, which in turn will determine the content of subsidiary law or indeed provide policy direction.
In consideration of the Neo multiparty model of the press in relation to broad legal framework within which the media operates is derived, Kasoma’s hypothesis states that if the donor community today exerts substantial control over the economic and political spheres of recipient countries in the name of multipartysm, democracy and good governance, then it follows that it should exert the same influence over the press, which according to the donor community’s own admission, plays a decisive role in supporting multiparty politics, democracy and good governance as illustrated in the model given below;
Freedom of expression just as the other right is not absolute. Society is entitled to place some legitimate restrictions on the exercise of freedom of expression in order to prevent its abuse. Even International Human Rights instruments recognize the need for restrictions. Such restrictions must however firstly be provided by Law, secondly must serve as one of the legitimate purposes expressly enumerated in the text and lastly any restriction must be shown to be necessary.
According to the European Court of Human Rights in order for the restriction to be “prescribed by law “it must be “adequately accessible” and foreseeable, that is, formulated with sufficient precision to enable the citizen to regulate his conduct. To have a legitimate aim, a restriction must be in furtherance of and genuinely aimed at protecting one of the permissible grounds listed in Article 10(2) of the European Convention. To be ‘necessary’ a restriction does not have to be “indispensable “but it must be more than merely “reasonable’ or ‘desirable’.
Article 20(3) of the Constitution of Zambia provides:
Nothing contained in or done under the authority or any Law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the Law in question makes provision:
a. That is reasonably required in the interest of defence, public safety, public order, public morality or public health; or
b. That is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or the registration of, or regulating technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; or
c. That imposes restrictions upon public officers;
and except so far as that provision or, the thing done under the authority thereof as the case may be is shown not to be reasonably justifiable in a democratic society.
It is quite evident that Article 20(3) provides a very wide derogation clause, where if broadly constructed, completely emasculates the protection of freedom of expression and the press contained in clause 1 and 2 respectively.
According to article 20(3), in order for a restriction on freedom of expression or the press to be valid, it must meet the three criteria earlier looked at. The “interest” especially these in clause (a) are expressed in very broad and vague terms. There is no definition of “public safety” “public order” or “defence” Almost any restriction can be justified on any of these grounds. A timid judge will, for instance, uphold all restrictions imposed by the state by giving a broad interpretation to this clause.
Furthermore, the restriction need only be “reasonably” required to protect the listed interests as opposed to being “necessary” as under Article 10 of the European Convention, Article 19 of the International Convention on Civil and Political Rights and the Universal Declaration on Human Rights. The Zambian standard is less stringent than that in international instruments. In Zambia , all that needs to be shown is that the restriction is “reasonable” or desirable and not necessary to demonstrate a “pressing social need” or to give relevant and sufficient reasons for the restriction. Under Section 20(3) the restriction must be reasonable, justifiable in a democratic society. However, what constitutes a democratic society is not defined by the constitution. In comparison, the European court of Human Rights has laid down standards for evaluating what constitutes a democratic society. as envisaged by the courts a democratic society is an evolutionary society founded upon freedom of expression.
So far, the above presentation, and I submit, creates a foundation upon which an analysis of whether or not the legal and policy framework within which the media industry operates is sufficient regarding the modern methods of information gathering and dissemination. It is therefore also important to revisit what is meant by the modern methods of information gathering and dissemination.
Modern methods of information gathering and dissemination encompasses Information and Communication Technologies which is an umbrella that includes radio, television, cellular phones, computers and network hardware and software, satellite system etc. as well as various services and applications associated with them such as video conferecing and distance learning.
In setting up guidelines, regarding the use of new media, one can not over look the position of the county’s legal and policy framework within which the media industry operates.
Information gathering as an act of conveying or relying or communicating the message to the audience, on the professional angle refers to the activity of researching news / items for the purpose of broadcast or publication, an activity in this particular case commonly done by journalists or reporters. ICT is useful in information gathering. A news media that is using the ICT’s in news gathering may not survive the current revolutionary trend in the mass media industry. It is used in different aspects of the news gathering such as interview, investigation, provision of background information and monitoring of news from other media houses, news agencies and social media sites. These could be through email or internet phone etc.
On the general public or student end, as sources of news, these also tip the media houses on news stories through email internet phone calls and the social media. The social media also serve as a good source of breaking news stories to the news media. Eye witness immediately post news stories and pictures of events on their pages such as twitter, facebook, youtube etc.
Information dissemination as an act of conveying or relaying or communicating the message to the audience is the distribution of information to the general public. The process ultimately makes information available to the public.
Guidelines regarding the use of new media should attain the ultimate purpose of operation within the legal and policy framework within which the media operates. This however is also contingent upon how far government respects the rule of rule of law in practice.
Guidelines Challenges, strategies and recommendations can only be amply devised once a clear road map of legal and policy framework within which the media industry operates is established.
Information gathering and dissemination hinges upon freedom of expression and freedom of the press. Freedom of expression is in fact the life-blood of any democracy.
Media in society plays a pivoted role in the quest for change ,dialogue, culture modeling and indeed, development.