DISCUSS WHETHER OR NOT

THE ZIMBABWE MEDIA

COMMISSION ACT
[CHAPTER 10:35] AND THE
FREEDOM OF INFORMATION
ACT [CHAPTER 10:33]
PROMOTE FREEDOM OF
EXPRESSION IN ZIMBABWE.
PROMOTING FREEDOM OF
EXPRESSION
• • The Media Commission Act established an independent media commission to
regulate the media which in turn promotes diversity and pluralism. It also outlines the
functions of the Zimbabwe Media Commission, which include upholding, promoting and
developing freedom of the media (Section 249(1)(a)) as outlined in the PREAMBLE.
• • It empowers the Commission to conduct investigations and inquiries into any
conduct or circumstance that appears to threaten the freedom of the media (Section
249(2)(a)).
• - FOIA facilitates research and investigation by providing access to information,
enabling citizens to gather facts and data to support their expressions and opinions.
• • It allows the Commission to take or recommend disciplinary action against media
practitioners who breach any law or code of conduct (Section 249(2)(b)).It states that
the Commission should encourage the formulation of codes of conduct for media
personnel, and where none exist, formulate and enforce one (Section 249(1)(d)).
Cont.
• • It aims to ensure that the people of Zimbabwe have fair and wide access to
information (Section 249(1)(f)). This is also done through the Establishment of the
Media Fund (Section 21) which promotes and contributes towards research and
development in the field of media services, public awareness on the right of access to
information and protection of privacy and capacity building media services.
• - The FOIA allows citizens to request and obtain information from public entities
enabling them to access knowledge and info necessary for informed expression.
• • It promotes the use and development of all officially recognized languages in
Zimbabwe (Section 249(1)(g))
• - FOIA often includes protections for whistleblowers, allowing them to disclose
information without fear of retribution, promoting free expression and accountability.
PREVENTING FREEDOM OF
EXPRESSION
•• The Act gives the Media Commission powers to register and accredit
journalists, as well as to suspend or revoke their licenses. This has raised concerns
about potential government control and censorship of the media.
•• The Act states the Commission members are appointed by the President after
consultation with the Parliamentary committee. This could raise concerns about the
Commission's independence from political influence thereby giving room for
limitations of expressive information that is anti-government as impartiality maybe
problematic. The Act does not explicitly state the Commission should be independent
from government control, unlike the constitutional provisions it references.
•• The Act gives the Commission broad investigative powers, but the scope of
their enforcement actions is not clearly defined. It's unclear if the Commission has
sufficient powers to effectively hold media practitioners and organizations
accountable.
Cont.
• • The act also empowers the Commission to oversee the conduct of journalists
and media houses, and to impose fines or other sanctions for violations of a media
code of conduct. Critics argue this could lead to self-censorship. By empowering the
Commission to develop and enforce media codes of conduct, this could lead to
concerns about over-regulation and restrictions on media freedom. The complaints
process and disciplinary actions outlined could be seen as giving the Commission too
much control over media content and operations. Proponents of the act say it helps
maintain media standards and professionalism. However, media freedom advocates
argue it gives the government too much control over the media landscape.
• • Limited public participation/transparency: The Act does not appear to have
strong provisions for public participation in the Commission's work or transparency
around its operations.
• • Closed hearings violate the right to information access Section 10(1).
• - FOIA exempts certain information from disclosure such as national security, defense
or sensitive information which can broadly be interpreted to restrict access to critical
information.
• - Restrictive definitions. The act defines ‘information’ narrowly, excluding certain
types of data or records which in turn limits the scope of accessible information.
• - FOIA allows for fees and charges to be imposed for accessing information, which
can create a barrier for citizens who cannot afford to pay.
• - The Act sets time limits for processing requests which can be lengthy, delaying
access to information and potentially stifling timely expression. The appeals process can
also be lengthy and cumbersome, making it difficult for citizens to challenge denied
requests or restricted information.
• - FOIA imposes criminal penalties for unauthorized disclosure or use of information,
which can create a chilling effect on free expression and whistleblowing.
cont.
•- The Act prioritizes state interests over public interest, allowing
the government to withhold information deemed sensitive or
classified, potentially suppressing critical information
 2. Discuss about the safety of journalist and
other media practitioners- Highlight provisions
that protect journalist and media practitioners,
if any. See the Declaration of principles of
freedom of expression in African states
(Declaration 20), also see the case of Nobert
Zongo (African Court on Human and Peoples’
Rights) and the case of Hopewell Chin’ono.
2.1. Provisions that protect journalists and media practitioners.
• The Declaration 20, adopted by the African Commission on Human and
Peoples' Rights in 2019, is a comprehensive instrument that addresses
various aspects of freedom of expression and access to information in Africa.
• Regarding the safety of journalists and media practitioners, Principle 20 of
the Declaration is particularly relevant.
• Principle 20 in summary states that:
"States shall take effective legislative, administrative, and other measures to
prevent, investigate and address attacks, threats, and harassment against
journalists and other media practitioners."
Continue……
• Moreover, it calls on states to:
"ensure that perpetrators of such acts are brought to justice through
impartial, speedy, and effective investigations and prosecutions."
• The Declaration also states that states shall be liable for the conduct of
law enforcement, security, intelligence, military and other personnel
which threatens, undermines or violates the safety of journalists and
other media practitioners.
• This principle recognizes the crucial role that journalists and media
practitioners play in promoting democracy, good governance, and
human rights, and the need to ensure their safety and protection while
carrying out their work.
2.2 Analysis on the safety of journalists and media practitioners
• Attacks and intimidation of journalists including arrests and imprisonment deprives
them of their freedom of expression which is a constitutional right. See section of the
Constitution of Zimbabwe.
• It also deprives the public their right to access information which is also a
constitutional right in terms of Section of the Constitution.
• In Zimbabwe, attacks and intimidation are prevalent when journalists are covering
political cases.
• Police officers and state security agents have been named as perpetrators in some of
the cases.
• However, despite the culture of impunity, perpetrators rarely account for these
violations despite being reported to the police. This culture of impunity negatively
endangers the lives and safety of journalists.
2.3 The Case of Nobert Zongo
• Jurisprudence of the African Court on Human and Peoples’ Rights on the case of Nobert Zongo is
instructive.
• Norbert Zongo, a Burkina fasso journalist was killed in 1998. The African Court on Human and Peoples'
Rights found the government of Burkina Faso responsible for the death of Norbert Zongo and ordered the
state to conduct an effective investigation, prosecute the perpetrators, and provide reparations to the
victim's family.
• The Court found that Burkina Faso “failed to act with due diligence in seeking, trying and judging the
assassins of Norbert Zongo and his companions”
• Despite the complaints of threats by the victim, the state failed to investigate to protect him. The African
Court decision, affirms the responsibility of the stateto protect journalists and other media practitioners
especially in ensuring access to justice and protectionof fundamental rights.
• The case is a significant example of how the African human rights system has addressed the issue of
journalist safety.
• This landmark ruling by the African Court sent a strong message that attacks on journalists will not be
tolerated and that states have a duty to protect and ensure the safety of media practitioners.
2.4 The case of Hopewell Chin'ono
• The case of Hopewell Chin'ono is a significant one in the context of the protection of journalists in Africa.
Chin'ono is a Zimbabwean journalist who has faced repeated arrests and detentions for his critical
reporting on issues of corruption and governance in the country.

• In July 2020, Chin'ono was arrested and charged with inciting public violence after he had called for anti-
government protests on social media. This arrest was widely condemned by press freedom organizations
and human rights groups as a blatant attempt to silence a critical journalist.
• The case of Hopewell Chin'ono highlights several important issues regarding the protection of journalists
in Africa:
1. Criminalization of journalism: The charges against Chin'ono, such as inciting public violence, are common
tactics used by some African governments to criminalize legitimate journalistic activities and criticism of
those in power.
2. Arbitrary arrests and detentions: Chin'ono has been arrested and detained multiple times, often without
due process, in clear violation of his right to freedom of expression and press freedom.
3. Lack of effective legal protections: Despite the existence of legal frameworks like
the African Commission's Declaration of Principles on Freedom of Expression and
Access to Information in Africa, the reality is that many African states fail to
effectively implement and enforce these protections for journalists.

4. Broader crackdown on media freedom: The targeting of Chin'ono is part of a

broader trend of repression and attacks on media freedom in Zimbabwe and other
African countries, where journalists face harassment, threats, and violence for their
work.
• The case of Hopewell Chin'ono has garnered significant international attention and condemnation, with
various human rights organizations and press freedom groups calling for his protection and the respect
of his rights.
• While the African human rights system, through mechanisms like the African Court on Human and
Peoples' Rights, has the potential to provide redress and hold states accountable for violations of
journalists' rights, the reality is that the implementation of these rulings remains a challenge in many
countries.
• Ultimately, the case of Hopewell Chin'ono underscores the urgent need for African states to truly
uphold and protect the safety and rights of journalists, in line with their obligations under regional and
international human rights frameworks. Effective legal protections, independent and impartial
investigations, and a genuine commitment to press freedom are crucial to ensuring that journalists can
carry out their essential work without fear of reprisals.
2.5 Sexual harassment in the media industry
• Journalists fall victim to their superiors.
• Declaration of Principles of Freedom of Expression includes the issues of harassment of female
journalists. It states that:
“states shall take specific measures to ensure the safety of female journalists and media practitioners by
addressing gender-specific safety concerns, including sexual and gender-based violence, intimidation and
harassment”.
• Some female journalists manage to navigate the toxic and predatory environment but it is important
to note that female journalists cannot meaningfully exercise their right to freedom of expression if
they are surrounded by a scourge of sexual harassment which violates their dignity and make them
feel degraded, humiliated, intimidated or threatened.
• it is imperative for Zimbabwe to adopt measures that will to ensure that journalists regardless of their sex
or media affiliation practice their profession without fear or intimidation in line with the African
Commission’s position that:
“freedom of expression, press freedom and access to information can only be enjoyed when journalists and
media practitioners are free from intimidation, pressure and coercion” and that “media actors on all
platforms are entitled to enjoy the fundamental right to freedom of expression and to the safe exercise of
this right.
• Thus, there is an expectation that the Zimbabwe Media Commission (ZMC) will live up to its
constitutional obligation promote freedom of expression and media freedom and approach the
investigations on media rights violations with due diligence. This will enhance media freedom and the
right to freedom of expression.
2.6 Conclusion
• while the Declaration 20 and the rulings of the African human rights system provide
important legal frameworks for protecting the safety of journalists and media
practitioners, the reality on the ground remains challenging in many African
countries. Continued advocacy, institutional reforms, and political will are necessary
to ensure that journalists can carry out their work without fear of reprisals.
• Hence, more work is needed to translate these principles into tangible and effective
safeguards for media professionals across the African continent.
 Discuss about the freedom of
expression online in Zimbabwe.
Highlight provisions in the Cyber
and Data Protection Act of 2021.
Question interpretation:
• The gravamen of this part of the essay presentation as per the
demands of the question is an exploration of how the current legal
framework in Zimbabwe carters and provides for the online freedom
of expression, particular attention of course being made to the
provisions of the Cyber and Data Protection Act of 2021.
What is Freedom of Expression Online?
• Generally, the notion of freedom of expression online entails to the ability to
express oneself freely on the internet, without the fear of censorship,
retribution or persecution by State authorities. In essence, this notion includes
the following aspects;
•Posting opinions, thoughts, and ideas on social media platforms like Facebook, X
(formerly known as twitter), instagram et cetera, as well as blogs or other
websites.
•Sharing information, news, and perspectives through online platforms.
•Creating and disseminating digital content, such as videos, images, and podcasts
•Participating in online discussions, debates and forums for instance participation
•Accessing and receiving information from various online sources.
Cont.
• In the Zimbabwean legislative framework, this freedom of expression
online is impliedly provided for in Section 61 (1) of the 2013
Constitution which stipulates that every person has the right to
freedom of expression, which includes freedom to seek, receive and
communicate ideas and other information; freedom of artistic
expression and scientific research and creativity; and academic
freedom.
Why is Freedom of Expression online
important in Zimbabwe?
Freedom of expression online is essential for the following reasons:

• It enhances political discourse and participation of citizens in

socio-political issues grappling the nation.
• It promotes social and cultural exchange
• It improves access to information and knowledge
• It promotes artistic and creative expression
• It promotes personal development and self-expression
The essence of Cyber and Data Protection Act [Chapter
12.07] vis-à-vis the notion of freedom of expression online
• The Act through Section 35 thereof introduces Section 163D to the
Criminal Law Code which criminalizes unlawful disclosure of data
code. In essence this provision provides that any person who
unlawfully and intentionally communicates, discloses or transmits any
computer data, programme, access code or command or any other
means of gaining access to any programme or data held in a computer
or information system to any person not authorised to access the
computer data, programme, code or command for any purpose; shall
be guilty of an offence and liable to a fine not exceeding level 12 or
imprisonment for a period not exceeding ten years or both such fine
and such imprisonment.
Cont.
• The Act through the same section also introduces Section 164 to the
Criminal Law Code which criminalizes transmission of data message
inciting violence or damage to property. In essence this provision
provides that any person who unlawfully by means of a computer or
information system makes available, transmits, broadcasts or
distributes a data message to any person, group of persons or to the
public with intent to incite such persons to commit acts of violence
against any person or persons or to cause damage to any property
shall be guilty of an offence and liable to a fine not exceeding level 10
or to imprisonment for a period not exceeding five years or to both
such fine and such imprisonment.
Cont.
• The Act further introduces Section 164A to the Criminal Law Code
which criminalize sending threatening data message. In essence this
new provision in the Criminal Law Code provides that any person who
unlawfully and intentionally by means of a computer or information
system sends any data message to another person threatening harm
to the person or the person’s family or friends or damage to the
property of such persons shall be guilty of an offence and liable to a
fine not exceeding level 10 or to imprisonment for a period not
exceeding five years or to both such fine and such imprisonment.
Cont.
• The Act through the same section once again also introduces Section 164B in
the Criminal Law (Codification and Reform) Act which criminalises cyberbullying
and harassment. It states that any person who unlawfully and intentionally, by
means of a computer or information system, generates and sends any data
message to another person, or posts on any material whatsoever on any
electronic medium accessible by any person, with the intent to coerce,
intimidate, harass, threaten, bully or cause substantial emotional distress or to
degrade, humiliate or demean another person or to encourage a person to
harm himself or herself shall be guilty of a criminal offence. In terms of this
section, it is a criminal offence to generate and circulate data messages with the
intention to coerce, intimidate, harass, threaten, bully or cause substantial
emotional distress, or to degrade, humiliate or demean another person through
any electronic medium
Cont.
• The Act also introduces Section 164C to the Criminal Law Code which
criminalises the transmission of false data message intending to cause
harm. In terms of this new Section in the Criminal Law Code, any
person who unlawfully and intentionally by means of a computer or
information system makes available, broadcasts or distributes data to
any other person concerning an identified or identifiable person
knowing it to be false with intend to cause psychological or economic
harm shall be guilty of an offence and liable to a fine not exceeding
level 10 or to imprisonment for a period not exceeding five years or to
both such fine and such imprisonment.
Cont.
• The Act further introduces Section 164E to the Criminal Law Code which
criminalises transmission of intimate images without consent. Any
person, in terms of this new provision in the Criminal Law Code, who
unlawfully and intentionally by means of a computer or information
system makes available, broadcasts or distributes a data message
containing any intimate image or video of an identifiable person without
the consent of the person concerned or with recklessness as to the lack
of consent of the person concerned, with the aim of causing the
humiliation or embarrassment of such person shall be guilty of an
offence and liable to a fine not exceeding level 10 or to imprisonment for
a period not exceeding five years or to both such fine and such
imprisonment.
cont
• The Act also introduces Section 164F to the Criminal Law Code which criminalises
the production and dissemination of racist and xenophobic material. In terms of
this new section, any person who unlawfully and intentionally through a computer
or information system produces or causes to be produced racist or xenophobic
material for the purpose of its distribution; offers, makes available or broadcasts
or causes to be offered, made available or broadcast racist or xenophobic material;
distributes or transmits or causes to be distributed or transmitted racist or
xenophobic material; uses language that tends to lower the reputation or feelings
of persons for the reason that they belong to a group of persons distinguished on
the grounds set out in section 56(3) of the Constitution or any other grounds
whatsoever, if used as a pretext for any of these factors; shall be guilty of an
offence and liable to a fine not exceeding level 14 or to imprisonment for a period
not exceeding ten years or to both such fine and such imprisonment.
International instruments
that promote freedom of
expression online
a) Universal Declaration of Human Rights
(UDHR)
• The Universal Declaration of Human Rights (UDHR) is a landmark international document
that was adopted by the United Nations General Assembly in 1948. It sets out
fundamental human rights to be universally protected.
• Article 19 of the UDHR states that "everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers."
• This establishes freedom of expression as a basic human right, which includes the freedom
to hold opinions, and to seek, receive and share information and ideas through any media.
• Freedom of expression is closely linked to other rights, such as the right to freedom of
thought, conscience, and religion, as well as the right to freedom of peaceful assembly and
association.
• Although the UDHR is not a legally binding treaty, it has become a key reference point for
the interpretation and application of human rights law worldwide.
Cont.
• Many of the rights enshrined in the UDHR, including freedom of
expression, have been incorporated into legally binding international
treaties and domestic laws.
• While the UDHR was drafted before the internet era, its principles
have been interpreted to apply to online expression and activities.
This has been affirmed by UN resolutions and the rulings of human
rights bodies, which have recognized that freedom of expression
online is protected under the UDHR.
b)International Covenant on Civil and Political Rights (ICCPR)

• a multilateral treaty adopted by the United Nations General Assembly

in 1966. It entered into force in 1976 and has been ratified by 173
countries as of 2023.
• Article 19 of the ICCPR guarantees the right to freedom of expression,
including the "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 means states must take positive measures to protect and
promote freedom of expression, and refrain from interfering with or
restricting this right in an arbitrary or disproportionate manner.
Cont.
• The ICCPR is monitored by the UN Human Rights Committee, which
reviews periodic reports from states and can make recommendations
and issue general comments on the interpretation and application of
the treaty.
• Individuals can also file complaints against states for alleged violations
of the ICCPR through the Optional Protocol to the ICCPR.
• The UN Human Rights Committee, which monitors implementation of
the ICCPR, has issued interpretive guidance affirming that Article 19
applies to the internet and other digital technologies. This has helped
establish freedom of expression as a fundamental human right in the
digital age.
c)African Commission on Human and
Peoples’ Rights (ACHPR) Declarations.
• The ACHPR has played a significant role in promoting freedom of expression
online. In 2019, the ACHPR adopted the Declaration of Principles on Freedom of
Expression and Access to Information in Africa, which highlights the importance of
universal access to the internet for realizing freedom of expression and access to
information. This declaration addresses issues such as internet intermediaries,
content removal requests, personal data protection, and communication
surveillance.
• In addition to declarations and resolutions, the ACHPR conducts monitoring
activities to assess compliance with human rights standards related to freedom of
expression online in African countries. Through its mechanisms such as country
visits, communications procedures, and thematic reports, the ACHPR works to
hold states accountable for violations of freedom of expression online and
recommends measures to promote respect for this right.
c)Convention on Cybercrime (Budapest
Convention)
• • This is the first international treaty addressing crimes committed via the Internet and other
computer networks. a significant international treaty that addresses crimes committed via the
Internet and other computer networks. It was adopted by the Council of Europe in 2001 and
entered into force in 2004.
• • It sets standards for domestic laws on cybercrime and investigative powers, while also
promoting the protection of human rights, including freedom of expression online.
• • The convention aims to harmonize national laws on cybercrime, facilitate the investigation
of such crimes, and promote international cooperation in this area.
• • It covers a range of offenses, including illegal access, system interference, misuse of
devices, and computer-related fraud and forgery.
• • The convention explicitly states that it shall be interpreted and applied in a manner that
respects human rights and fundamental freedoms, such as the right to freedom of expression.
• • It requires that the powers and procedures established under the convention be subject to
conditions and safeguards provided for by domestic law
Summary
• While Zimbabwe is not a party to the Convention on Cybercrime
(Budapest Convention), it is bound by the principles of the Universal
Declaration of Human Rights and has ratified the International
Covenant on Civil and Political Rights, which includes provisions
related to the protection of freedom of expression.
 United Nations Human
Rights Council Resolution
HRC/RED/20/8 of 2012 in
media law
• The United Nations Human Rights Council (UNHRC) adopted
Resolution HRC/RED/20/8 in 2012, which focuses on the promotion,
protection, and enjoyment of human rights on the Internet. This
resolution is significant in the context of media law as it underscores
the importance of freedom of expression and access to information
online. Here are the key aspects and implications of this resolution:
Key Aspects

1. Affirmation of Online Freedom of Expression:

• The resolution reaffirms that the same rights people have offline must also
be protected online, particularly freedom of expression.
• It emphasizes that freedom of expression is a fundamental human right that
applies regardless of frontiers and through any media, including the Internet.
2. Access to Information:
• The resolution highlights the importance of facilitating access to information
on the Internet.
• It calls upon all states to promote and facilitate access to the Internet and
international cooperation aimed at developing media and information
literacy.
Cont.
3 Protection Against Censorship:
• The resolution condemns measures that intentionally prevent or disrupt access to
information online.
• It urges states to refrain from adopting or implementing laws or policies that
unduly restrict individuals’ ability to seek, receive, or impart information online.
4 Role in Democracy:
• The resolution recognizes the global and open nature of the Internet as a driving
force in accelerating progress towards development in its various forms.
• It acknowledges that an open Internet can contribute significantly to democracy
by enabling greater participation in public affairs.
Cont.
5. Human Rights Defenders:
• The resolution acknowledges the role played by human rights
defenders in promoting human rights online.
• It calls for their protection against harassment, intimidation, or
reprisals for their activities related to human rights on the Internet
Implications for Media Law
1. Legal Frameworks:
 Countries are encouraged to review their legal frameworks to ensure they align with
international standards regarding freedom of expression online.
 This may involve repealing or amending laws that impose undue restrictions on online
speech or access to information.

2. Regulation vs. Censorship:

 While regulation is necessary for issues like cyber security and combating hate speech,
it must be balanced against potential censorship.
 Legal provisions should be clear, precise, and not overly broad so as not to infringe
upon legitimate expressions.
Cont.
3. Support for Digital Rights Activists:
 Legal protections should be extended to digital rights activists who work
towards safeguarding freedoms on the Internet.
 States should ensure these activists can operate without fear of retaliation.

4. International Cooperation:
 The resolution encourages international cooperation in promoting best
practices for protecting human rights online.
 This includes sharing knowledge about effective legal frameworks and
technological solutions that enhance access while protecting users’ rights.
Discussing the African Commission's Resolution
362 on the Right to Freedom of Information and
Expression on the Internet in Africa.
• Adopted in 2016, Resolution 362 is a significant development in the African human
rights system's approach to protecting the rights of internet users and safeguarding
freedom of expression online.
The key provisions of the resolution are:
1. Reaffirmation of the right to freedom of expression and access to information online:
The resolution reaffirms that the right to freedom of expression and access to
information, as enshrined in the African Charter on Human and Peoples' Rights, is
equally applicable to the online space.
2. Condemnation of internet shutdowns: The resolution strongly condemns the practice
of intentionally disrupting or limiting access to the internet or electronic
communications, which it considers a violation of the right to freedom of expression.
3. Call for legal and regulatory frameworks: The resolution calls on African states to
develop legal and regulatory frameworks that protect freedom of expression and access
to information online, while also ensuring that any restrictions on online content are
necessary and proportionate.
4. Protection of marginalized groups: The resolution recognizes the particular
challenges faced by marginalized groups, such as women, youth, and persons
with disabilities, in exercising their rights online, and calls on states to address
these challenges.
5. Promotion of digital literacy and access: The resolution emphasizes the
importance of promoting digital literacy and ensuring universal and affordable
access to the internet, as a means of empowering citizens and enabling their
effective participation in the digital age.
• The adoption of Resolution 362 was a significant step forward in the African human
rights system's efforts to keep pace with the rapidly evolving digital landscape and
to ensure that the fundamental rights of internet users are protected.
• However, the implementation of the resolution remains a challenge, as some
African states continue to impose internet shutdowns, enact restrictive laws
targeting online speech, and fail to address the digital divide and the unique
vulnerabilities of marginalized groups in the online space.
• Ongoing advocacy, collaboration between civil society and state actors, and the
continued development of jurisprudence by the African human rights mechanisms
will be crucial in ensuring that the principles enshrined in Resolution 362 are
translated into tangible protections for internet users across the African continent.
Highlight cases that support
freedom of expression
online in Zimbabwe
1. Hopewell Chin’ono v Guwuriro N.O & Others HH690-21 (THE
CHIN’ONO CASE)
In this case Hopewell Chin’ono faced the following charge in the
Magistrates Court which IS reproduced verbatim hereunder for good
measure:
“INCITEMENT TO COMMIT PUBLIC VIOLENCE AS DEFINED IN SECTION
187(1) (a) AS READ WITH 36(1) (a) OF THE CRIMINAL LAW
CODIFICATION AND REFORM ACT CHAPTER 9:23
CONT
• In that during the period extending from May 2020 to July 2020 and in
Harare Hopewell Chin’ono communicated to the general public through
his twitter handle @daddyhope messages intending by such
communication to persuade or induce members of the public to a
serious extend disturb the peace, security or order of the public or any
section thereof.
• However, upon review of the matter at the High Court after the
magistrate court had dismissed Hopewell Chin’ono’s application for an
exception to the charges, it was held that the charges which Hopewell
Chin’ono faced disclosed no offence at all.
•
The Fadzai Mahere case *(FADZAI MAHERE V STATE

• Fadzayi Mahere was convicted on 5 April 2023. Mahere was charged

under section 31 of the Criminal Law Reform and Codification Act
with “publishing or communicating falsehoods” after she posted on
Twitter a viral video of a woman tussling with a police officer with a
motionless baby in her hands in January 2021. Mahere was convicted
and sentenced to pay a fine of $500 USD for publishing or
communicating false statements prejudicial to the state. However on
appeal she was acquitted as it was held that the crime of which she
was charged was outlawed and did not exist. In essence the of which
she was charged was outlawed in Chimakure & Othrs v Attorney
General of Zimbabwe SC 14/13
continued
In essence, in the Chimakure case it was held that While it is intended
that there should be freedom of expression it is also intended that in
the exercise of the right, conditions should not be deliberately created
for the undermining of the maintenance of the public order or
preservation of public safety. There is a direct and vital relationship
between the exercise of freedom of expression and the preservation of
public peace and tranquillity
continued
• It was further held that a law cannot be used to restrict the exercise
of freedom of expression under the guise of protecting public order
when what is protected is not public order. This is because the
maintenance of public order or preservation of public safety is
synonymous with the protection of fundamental human rights and
freedoms. The State cannot therefore violate fundamental human
rights and freedoms under the cover of maintaining public order or
preserving public safety.
 JOINT DECLARATION ON
FREEDOM OF EXPRESSION
AND THE INTERNET (2011)
Background
• It was adopted on 1 June 2011
• The declaration was issued by
• The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression,
Larue
• The Special Rapporteur on Freedom of Expression of the Inter- American Commission
Human Rights (ACHR) of the organization of American States (OAS),Catalina Botero
• The Organization for Security and Cooperation in Europe (OSCE) Representative on F
the Media, Dunja Minjatovae
• The African Commission on Human and People’s Rights (ACHPR) Special Rapporteur
Freedom of Expression, Faith Pansy Tlakula
Cont.
• The joint declaration establishes guidelines to protect freedom of
expression on the internets
• It considers Article 19, Global Campaign for Free Expression and the
Centre for Law and Democracy
Guidelines considered
• Recalling and Reaffirming of previous joint declarations from 1999 to
2010
• Emphasizing the fundamental importance of freedom of expression
including principles of diversity and independence
• Stressing the transformative nature of the internet in giving voice to
billions of people, enhancing access to information and pluralism and
reporting
• Cognisant of the power of the internet to promote the realization of
rights and public participation
 Cont.
• Welcoming the growth of access the internet around the world while noting
that billions still lack access or have second class form of access
• Noting that some governments have put in place measures with specific
intentions of unduly limiting freedom of expression on the internet contrary
to international law
• Recognising that freedom of expression may be subject to limited
restrictions prescribed by law and are necessary eg. Prevention of crime
• Concerned that many governments fail to consider the special characteristics
of the internet and end up unduly restricting freedom of expression
Cont.
• Noting the mechanism of the multi-stakeholder approach of the UN
Internet Governance Forum
• Aware vast range of actors who act as intermediaries for the internet
and attempts by some States to deputise responsibility for harmful
actors to these actors
Guidelines Established in the Declaration
1. General Principles
• Freedom of expression applies to the internet as it does to all the forms of
communication. Restrictions are only acceptable if they comply with
international standards established by law and that they are necessary to
protect an interest recognized under international law.

• The impact of the restriction on the ability of the internet to deliver positive
freedom of expression must be weighed against its benefits in terms of
protecting other interests

• Approaches to regulation of other means of communication eg broadcasting

need to be specifically designed for it
Cont.
• Greater attention should be given to developing alternative, tailored
approaches, which are adapted to the unique characteristics of the
Internet, for responding to illegal content, while recognizing that no
special content restrictions should be established for material
disseminated over the Internet.
• Self-regulation can be an effective tool in redressing harmful speech,
and should be promoted.
• Internet literacy should be fostered
2. Intermediary liability
• Technical internet services provider should not be held liable for
content generated by others using their services, as long as they do not
specifically intervene in that content or refuse to obey a court order to
remove that content, where they have the capacity to do so (‘mere
conduit principle’).
3. Filtering and Blocking
• Mandatory blocking of entire websites, IP addresses, ports and
network protocols is an extreme measure which can only be justified
in accordance with international standards eg where necessary to
protect children against sexual abuse.
• Content filtering systems which are not end-user controlled are a form
of prior censorship and are not justifiable as a restriction on freedom
of expression.
• Products designed to facilitate end-user filtering should be required to
be accompanied by clear information to end-users about how they
work and their potential pitfalls in terms of over-inclusive filtering.
4. Criminal and Civil Liability
• Jurisdiction in legal cases relating to Internet content should be
restricted to States to which those cases have a real and substantial
connection. Private parties should only be able to bring a case in a
given jurisdiction where they can establish that they have suffered
substantial harm in that jurisdiction.
• Standards of liability, including defences in civil cases, should take
into account public interest in protecting both the expression and the
forum in which it is made
• The single publication rule
5. Network Neutrality
• There should be no discrimination in the treatment of Internet data and
traffic, based on the device, content, author, origin and/or destination
of the content, service or application.
• Internet intermediaries should be required to be transparent about any
traffic or information management practices they employ, and relevant
information on such practices should be made available in a form that
is accessible to all stakeholders.
6. Access to the Internet
• imposes an obligation on States to promote universal access to the
Internet necessary to promote respect for other rights, such as the right
to free elections
• Cutting off access to the Internet, or parts of the Internet, for whole
populations or segments of the public (shutting down the Internet) can
never be justified, including on public order or national security
grounds. The same applies to slow-downs imposed on the Internet or
parts of the Internet.
Cont.
• Denying individuals the right to access the Internet as a punishment is
an extreme measure, which could be justified only where less
restrictive measures are not available and where ordered by a court,
taking into account the impact of this measure on the enjoyment of
human rights.
• Imposing registration or other requirements on service providers, are
not legitimate unless they conform to the test for restrictions on
freedom of expression under international law.
• States are under a positive obligation to facilitate universal access to
the Internet. At a minimum, States should:
Cont.
i. Put in place regulatory mechanisms – which could include pricing regimes,
universal service requirements and licensing agreements – that foster
greater access to the Internet, including for the poor and in ‘last mile’ rural
areas.
ii. Provide direct support to facilitate access, including by establishing
community-based ICT centres and other public access points.
iii. Promote adequate awareness about both how to use the Internet and the
benefits it can bring, especially among the poor, children and the elderly,
and isolated rural populations.
iv. Put in place special measures to ensure equitable access to the Internet for
the disabled and for disadvantaged persons.
Cont.
• To implement the above, States should adopt detailed multi-year
action plans for increasing access to the Internet which include clear
and specific targets, as well as standards of transparency, public
reporting and monitoring systems.