This statement was originally published by misa.org on July 12, 2016.
MISA-Zimbabwe notes with great concern escalating threats by government to “regulate” social media in a statement issued by the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) and echoed by senior government officials.
The vagueness of the warnings and threats on what constitutes ‘abuse’ of social media, pose serious ramifications on citizens’ enjoyment of constitutionally guaranteed rights. Equally hazy, and yet to be clarified is what amounts to “gross irresponsible use of social media and telecommunications platforms”, as reportedly expressed by the Deputy Minister of Information, Media and Broadcasting Services Thokozile Mathuthu.
Without such clarity, the public is bound to be fearful in exercising their right to freely express their opinion and thought. This is particularly so given that the imprecise warnings leave the determination of what constitutes criminal conduct on social media at the subjective discretion of government and law enforcement agents or any other persons for that matter.
The effect of the POTRAZ notice and subsequent statements by Deputy Minister Mathuthu and her superior Chris Mushohwe, is to instill fear and self censorship on the exercise of constitutionally guaranteed rights of freedom of expression, access to information and freedom of conscience.
While MISA-Zimbabwe is mindful of democratic limitations to the enjoyment of fundamental rights, these should be fair, reasonable, necessary and justifiable in a democratic society as outlined in Section 86 of the Constitution and regional instruments on protecting human rights.
MISA-Zimbabwe further reminds the government and the public of the very critical parameters of the rights to freedom of expression and conscience, which must be equally respected and balanced alongside the limitations outlined in the constitution.
For example, freedom of conscience as outlined in section 60 of the constitution is to be exercised by “every person” and the freedom includes:
- Freedom of thought and opinion.
- Freedom to practice and propagate and give expression to their thought and opinion
- Freedom to express thought and opinion in public or in private and individually or with other persons.
In addition, Zimbabweans have the constitutional freedom to hold, receive or disseminate contrary thoughts and opinions through platforms of their choice on any subject of public interest including the country’s governance and politics.
It is MISA-Zimbabwe’s well considered view that there is no justification, whatsoever, for excessive limitations of these fundamental rights.
The non-negotiable imperative of promoting freedom of expression is outlined in the constitution and regional and international instruments that Zimbabwe is party to such as the International Covenant on Civil and Political Rights [ICCPR] and the Banjul Declaration of Principles of Freedom of Expression.
The latter for example, clearly outlines key benchmarks for the enjoyment of the right to freedom of expression, which government must remain mindful of in its exercise of duty. These include that;
- Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary and in a democratic society.
- No one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances;
- Public figures shall be required to tolerate a greater degree of criticism;
- Freedom of expression should not be restricted on public order or national security grounds unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression.
Former UN Special Rapporteur on Freedom of Opinion and Expression Frank La Rue reiterated similar benchmarks in his report to the 17th Session of the UN Human Rights Council. He noted that the right to freedom of expression “includes expression of views and opinions that offend, shock or disturb”, adding that “restrictions should never be applied, inter alia, to discussion of Government policies and political debate; reporting on human rights, Government activities and corruption in Government; engaging in election campaigns, peaceful demonstrations or political activities, including peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups”.
Sentiments expressed by the constitutional court of Zimbabwe in the case of Chimakure & Kahiya v the Attorney General of Zimbabwe [SC13/2013] in respect of the exercise and extent of limitation of the right to freedom of expression are also instructive. The bench noted that;
- The nature and scope of the right to freedom of expression covers every activity which conveys or attempts to convey a message in a non-violent form, without fear of censure.
- The right to freedom of expression applies to ideas and information of any kind.
- Ideas and information are imparted and received for mental digestion and acceptance or rejection.
- Freedom of thought means that the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest;
- That the battle of minds and the free debate of ideas and information enjoy the benefits of the protection of freedom of expression.
- Freedom of expression finds its true meaning when its enjoyment is protected from interference by Government.
- The only limitation on the “freedom” or “liberty” is the duty not to injure the rights of others or the collective interests listed in the Constitution.
- The exercise of the power to limit the exercise of the right to freedom of expression is not only required to be constitutionally justified. It is itself restricted by the principle of proportionality.
- It is only the prohibition of those acts in the exercise of freedom of expression by the speaker, writer, publisher, or actor shown to pose danger of direct, obvious, and serious harm to one or more of the public interests listed in the Constitution, which is justifiable.
- The State cannot violate fundamental human rights and freedoms under the cover of maintaining public order or preserving public safety.
Against these insightful observations by judges of the country’s highest court, MISA-Zimbabwe implores government to lawfully balance competing interests and act and speak in a manner that promotes the full enjoyment of all rights and freedoms guaranteed by the Constitution of Zimbabwe. Anything done outside the supreme law of the land will be patently undemocratic and a brazen violation of citizens’ basic liberties.