Bulawayo journalist, Zenzele Ndebele, has taken the Zimbabwe Media Commission (ZMC) to court over its failure to facilitate access to information held by public bodies by not publishing regulations governing that as provided for in the recently enacted Freedom of Information Act.
Enacted in July last year, the Freedom of Information Act is one of the pieces of legislation that repealed the draconian Access to Information and Protection of Privacy Act (AIPPA).
While the act provides for access to information held by public entities, Section 40 (1) leaves out the regulations to ZMC.
In an application filed at the Bulawayo High Court on 31 March 2021, Ndebele through his lawyers, Ncube Attorneys, requested the court to issue an order compelling ZMC to make the regulations envisaged in section 40(1) of the Freedom of Information Act within 45 days.
ZMC chairperson Ruby Magosvongwe, ZMC and Information Publicity and Broadcasting Services Minister, Monica Mutsvangwa are cited as first, second and third respondents respectively in the 11-page application.
Ndebele, who is employed by the Centre for Innovation and Technology (CITE), an online publication, said while the Freedom of Information Act provides for citizens to apply for information held by public bodies, the absence of regulations renders the provision nugatory hence an infringement on his right to access information.
“Consequently, the Commission (ZMC) has failed to act in line with the law by failing to enact such regulations considering that the Act was gazetted in July 2020 (8 months ago),” argued Ndebele.
“The Commission was supposed to carry out this duty within a reasonable time. Failure to do so within the past 8 months means the Commission has failed to carry this duty within a reasonable time. Even the fact that there have been lockdowns owing to the coronavirus cannot be a reasonable excuse as the state has not stopped functioning with Parliament working at times virtually. Incidentally, the lockdown measures have been relaxed now and then.”
He said he was advised by his legal counsel that an order was thus required to get the ZMC to make the regulations so as to facilitate the right to the enjoyment of the constitutional right of access to information.
“As a journalist, my work involves, oftentimes, the need that I access information that is held by public or statutory bodies so that I can produce fully informed news items,” said the scribe.
“This is in line with the Constitutional Right espoused in Section 61 of the Constitution on freedom of expression and freedom of the media, which bestows the freedom to seek, receive and communicate ideas and other information.”
Ndebele further argued that while the Freedom of Information Act, imposes a legal regime of accessing information held by public bodies, public commercial bodies or statutory bodies, it requires him to apply, only in a ‘prescribed manner’ if he seeks to access information from them or to appeal against a refusal, also in the ‘prescribed form.’
“The Act does not provide these ‘prescribed’ forms and defers them to the regulations and as such, I can only utilise them once the Commission makes the regulations,” he said.
“It is thus necessary to seek the remedy of mandamus to compel a public administrative organ to perform a prescribed statutory duty imposed by law. It is also in the public interest that a public organ act in consequence of a law where it imposes a legal duty on it to act.”
The applicant’s lawyers said the respondents (Magosvongwe, ZMC and Mutsvangwa) have only 10 days to oppose Ndebele’s application failure to which it would be set down for hearing without further notice and would be dealt with as an unopposed application.
