Introduction

This assignment will discuss the right to access the media and the right to freedom of information. It will
first define and explain what freedom of information is and then it will further discuss the right to access
the media and the right to freedom of information in reference to the 2016 general elections, especially
during the election campaign and will end with a conclusion.

Freedom of Information

Article 19 of the Universal Declaration of Human Rights (UDHR) , binding on all member states that have
ratified and domesticated this, guarantees the right to freedom of information when it defines freedom
of information as the freedom to seek, receive and impart information and ideas through any media
and regardless of frontiers. Additionally, a Dictionary of Media and Communication defines freedom of
information as a basic right to have access to information of all kinds, from the type held by
governments to that held by media organisations.

To push the argument further, UNESCO defines freedom of information (FOI) as the right to access
information held by public bodies. The General Assembly of the United Nations during its first session
in 1946, unanimously resolved that Freedom of information is a fundamental human right and is the
touchstone of all the freedoms to which the United Nations is consecrated. It is a fundamental right of
every citizen to access information held by state bodies as this is incorporated in the freedom of
expression and information. This freedom of expression and information comes with an obligation on
the part of the state to refrain from actions which might obstruct it. It is the states obligation too to
provide for the access to information by way of legislation.

The right to freedom of information will not be sustained for as long as there is no piece of legislation
supporting it. This has been one of the major drawback to the right to access information. There are
currently no laws that specifically promote and protect the freedom of information in Zambia. In view of
this, it is awfully difficult for both media personnel and the public to access important information that is
of interest to the public. Evan argues that freedom of information and specifically access to information
held by public authorities, is a fundamental element to the proper functioning of a democracy. It is clear
that democracy cannot be fully enjoyed in a state without freedom of information. Zambia does not yet
have a Freedom of Information Act. It is now over fourteen years since media lobby groups started
advocating for the enactment of this piece of legislation. Freedom of information is essential for every
country that has media institutions because it helps to convey important information to the public.

Article IV (1) of the Universal Declaration of Human Rights states that:

Public bodies hold information not for themselves but as custodians of the public good and everyone
has a right to access this information, subject only to clearly defined rules established by law.

Freedom of information is generally understood to convey the notion that there is a right to access
information held by the government. Freedom of information helps to convey important information to
the public.

Right to Access the Media and Right to Freedom of Information in a Democracy

Freedom of information is an intrinsic component of a proper functioning of a modern representative

government. Freedom of information fosters the notion of deliberative and participatory democracy.
When the government practices an open door policy, it will be easier for the public to scrutinize it and
be accountable to its own citizens. Along with adequate information, there will be high levels of public
participation in the governance of a nation. For a proper and effective functioning of a healthy
democracy, access to information is a prerequisite. To cement this is the fact that voting in the
referendum and enhancement of the bill of rights did not yield much due to the failure by the media
especially to educate the voters on the importance of that piece of legislation. The voters lacked access
to information and so could not make informed decisions.

President Johnson once posited that:

... A democracy works best when the people have all the information that the security of the nation
permits. No one should be able to pull the curtains of secrecy around decisions which can be revealed
without injury to the public interest.

It is said that governments represent public rather than private interests and that different
considerations apply to documents produced by government than those which apply to individuals and
private organisations. The 1976 Crossman Diaries case clarified the legal principles where Lord Widgery
CJ said that material would be protected only if public interest in the publication being restrained
outweighed public interest in its publication. The decision was followed in Australia in Commonwealth v
John Fairfax & Sons where Mason J said:

It is unacceptable, in our democratic society, that there should be a restraint on the publication of
information relating to government when the only vice of the information is that it enables the public to
discuss, review and criticize government action ... Unless disclosure is likely to injure the public interest,
[the information] will not be reported.

In July of 2015, Fred Mmembe together with his reporter, Mukosha Funga, were arrested on an
allegation that the duo disclosed classified documents which accusation they denied. Particulars of the
matter were that on 17th April 2015, Fred Mmembe and Mukosha Funga while jointly and acting
together published a letter purportedly written by Anti-Corruption Commission (ACC) director general,
Rosewin Wandi to President Edgar Lungu, informing him that the ACC wanted to commence
investigations on his political adviser, Kaizer Zulu. Now, this is information that concerned the public
and its publication meant to spark a debate or review amongst members of the public. The duo were
arrested on the premise that they disseminated classified information contrary to section 5(1) of the
State Security Act , which states that:

Any person who communicates any classified matter to any person other than the person to whom he is
authorized to communicate it or to whom it is in the interest of the Republic his duty to communicate it,
shall be guilty of an offence and liable on conviction to imprisonment for a term of not less than fifteen
years but not exceeding twenty-five years.

This and other pieces of legislation stifle access to information from public bodies and are inimical to
freedom of information as is enshrined in the Universal Declaration of Human Rights. Although the
African Charter on Human and Peoples Rights does not explicitly guarantee the right to access
information, it nevertheless, protects the right to receive information.

The Media plays a critical role in the development process of any country, more so in a modern
functioning democracy. Without information, citizens are unable to exercise their rights and
responsibilities effectively. The Constitution of Zambia in article provides for access to the media for a
political party and a candidate contesting an election especially so during election campaigns.
Furthermore, the Constitution in article 20 guarantees the freedom of expression when it states:

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 impart 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.

This provision will be discussed in the light of the 2016 general election media coverage. American
president, James Madison stated that:

A popular government, without popular information or the means of acquiring it is but a farce or a
tragedy; or, perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their
own governors must arm themselves with the power which knowledge gives.

Knowledge or information in a democratic society is the lifeblood on any state, for without it the
citizenry cannot participate fully in the decision making that affects them. The media play a vital role
during the democratic processes by educating voters and political parties about major issues. By so
doing it gives the voters and political parties access to information in order that they can make informed
decisions. Pursuant to article 50 of the Constitution, political parties and individuals have a right to
access the media during election campaigns in order to sell themselves to the masses and inform them
of what their candidate and the party are offering. Unfortunately, for the 2016 general elections, the
political playing field was unequal. In Zambia the media has become a source of contention pre and
during elections. Other political parties but the incumbent party were denied a right to access the media
as is guaranteed by the Constitution. There should be an enabling legislation and regulation to give
effect to Article 50 of the Constitution. The article does not specify how the various political parties can
have access to the public media especially the electronic. Usually, the ruling party abuses the public
media to serve the interest of the incumbent. There should be a clear mechanism in place showing
whether political parties will have free or paid for access to both public electronic and print media
during election campaigns. That way, there will be no hegemony such as the one exuded by the ruling
party and its candidate. The media does play a vital role in any elections. It helps candidates
communicate their message to the voters. Public media in Zambia is owned and controlled by the
government and pre during and after the elections it is still controlled by the government and political
party in power. The public print and electronic media has largely been partial and not independent of
government while the private print and electronic media has always been threatened with closures.

One of the most significant challenges to opposition parties during the pre-election period was the lack
of equitable coverage by and access to public media. Public media outlets, both print and electronic,
strongly favoured the incumbent and his party in their coverage. United Party for National
Development, hereinafter the UPND, alleged that the party faced significant hurdles in accessing public
media for various programs and paid for political advertisements. As a result of this, the UPND sought
legal redress in the court of law citing abrogation of section 29 of the Electoral Process Act, subsections
(1) and (2). They sued Zambia National Broadcasting Corporation (ZNBC) for failing to cover the rallies of
its presidential candidate, Hakainde Hichilema. On August 9, 2016, ZNBC was ordered by the High Court
to air a documentary on Hichilema before the close of the campaign period. However, this was way too
late in the campaign for it to have any measurable effect on his candidacy. Media Institute of Southern
Africa too commenced legal action against ZNBC regarding its bias in political coverage. The matter was
not resolved before election day.

Furthermore, the European Electoral Observer Mission (EUEOM) noticed that the electoral campaign
was marred by systematic bias in state media, which failed to provide fair and equitable coverage of the
campaigns of opposition political parties, and by restriction on or stifling of private media, to wit, The
Post. The EUEOM recommended a complete overhaul of ZNBC into a public service broadcaster with full
editorial autonomy from the government and enhanced oversight of the ECZ of the public media. The
report recommended that:

ZNBC should be transformed into a public service broadcaster enjoying full editorial independence from
government. Protection of tenure of the board of directors and senior management should be
guaranteed, who should be appointed in a transparent manner, with the involvement of media
professionals and civil society organisations. News and content management staff should also be
appointed in a manner protected from political interference and be subject to public interest rules.

The ruling Patriotic Front (PF) party, led by President Edgar Lungu actively worked to deny media
coverage to the opposition. They vowed that no form of media should be given to the UPND in the form
of news or campaign advertisements and that massive efforts should be made to eliminate coverage of
UPND campaigns and their presidential candidate, Hakainde Hichilema. The period before and after the
August 2016 general elections has arguably been the most turbulent period in the history of the media
in Zambia in terms of state interference and outright violations against the medias independence and
freedom to conduct itself in a safe and favorable environment. This has been largely due to the
unprecedented heavy handedness by the state that saw the suspension of licences at once for three
broadcast stations by the Independent Broadcasting Authority (IBA). The stations in question are Muvi
Television Limited Company, Komboni Radio of Lusaka district as well as Itezhi-tezhi Community Radio
Station of Central Province. All this happened against the backdrop of the raid against the Post
Newspaper by the Zambia Revenue Authority for alleged tax non-compliance by the firm which has seen
the newspaper liquidated. Freedom of information and access to media has become even more elusive
now.

Curran proffers that the right to access the media can be enhanced by freedom of information on
government bodies and public institutions. Sadly, freedom of information bill has often been met with
resistance by authorities. A bill for freedom of information was first submitted to parliament in 2002 to
give the people the right to access information from both government and public agencies. The bill
could not be passed successfully despite receiving some overwhelming support during the second
reading. However, government withdrew the piece of legislation attributing the reason for doing so to
the countrys security. Since there is no freedom of information legislation in place, it is difficult for
anyone to access information. Furthermore, there is no legislation that protects confidential sources of
information and whistle blowers. Publication of leaked government information is prohibited. The legal
and political landscape makes it difficult to know how far a media house can go in digging for
information and dispersing it. Lack of freedom of information law in the country has impacted access to
information and media personnels role in a democracy negatively. On the other hand, this has exposed
media personnel to arbitrary arrests and intimidation. To buttress it all, journalist and media personnel
have been harassed by the very public figures who should be protecting them, flouting the Electoral
Code of Conduct, section 3 (g). A case in point is one in which a Patriotic Front official, Michael Tembo,
was convicted on 21 June, 2016 for assaulting two journalists. He was fined on two counts of assaulting
by occasioning actual bodily harm on Peter Sukwa, a was a correspondent with the Post Newspaper and
one Kelvin Phiri a Feel Free FM station radio journalist.

There are however, principles that should guide the legislation of freedom of information. Article 19 of
the UDHR has published a set of these principles, The Publics Right To Know: Principles on Freedom of
Information Legislation. A key guiding principle central to the right to information is the principle of
maximum disclosure. The Principle of maximum disclosure emanates from primary guarantees of the
right to information and sums up the fundamental meaning of the right to information. It therefore,
implies that the scope of the right to information should be broad as concerns the range of information
and bodies covered, as well as individuals who may claim the right. The Joint Declaration of the special
mandates on freedom of expression contains a strong and explicit statement on maximum disclosure:

The right to access information held by public authorities is a fundament human right which should be
given effect at the national level through comprehensive legislation (for example Freedom of
Information Acts) based on the principle of maximum disclosure, establishing a presumption that all
information is accessible subject only to a narrow system of exceptions.

More specifically, the UN Standards note: Public bodies have an obligation to disclose information and
every member of the public has a corresponding right to receive information; information includes all
records held by a public body, regardless of the form in which it is stored. Here the definition of
information is so broad and it encompasses any information in written, visual, aural, electronic or any
other material form. A public body has been defined to mean:

[The definition] should include all branches and levels of government including local government,
elected bodies, bodies which operate under a statutory mandate, nationalized industries and public
corporations, non-departmental bodies or quangos (quasi non-governmental organisations), judicial
bodies, and private bodies which carry out public functions (such as maintaining roads or operating rail
lines). Private bodies themselves should also be included if they hold information whose disclosure is
likely to diminish the risk of harm to key public interests, such as the environmental and health. Inter-
governmental organisations should also be subject to freedom of information regimes based on the
principles set down in this document.

The definition of a public body is very clear and does not exclude any government agency, for as long as
that agency is in existence by virtue of the enactment of a statute.

Conclusion

There is a dichotomy regarding what is obtaining on the ground and what is provided for in the statutes
concerning the right to access the media and right to freedom of information. The government flouts a
lot of media laws due to lack of legislation that protects media personnel and media houses. There
should be a legal framework to ensure that all political parties and candidates have access to the media
and are treated equitably by stated owned or controlled media, so that there are no unreasonable
limitations placed on the right of political parties and their candidates to access the media and freedom
of expression during election campaigns.
Bibliography

Statutes

The State Security Act, Chapter 111 of the Laws of Zambia.

The Constitution of Zambia, Amendment Act No. 2 of 2016.

The Electoral Process Act No. 35 of 2016.

International Instruments

African Charter on Human and Peoples Rights.

Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948.

Judicial Decisions

Attorney General (UK) v Jonathan Cape [1976] QB 752 at 770.

Commonwealth v John Fairfax & Sons [1980] 147 CLR 39.

Books

J. Curran, Media and power, London Routledge.

Marcel Danesi, Dictionary of Media and Communications M.E. Sharpe, Inc., 2009 London.

R. Evan, Media Law and Practice in Southern Africa, Lancaster House, 33 Islington High Street London N1
9LH, United Kingdom.

R.P. Meagher, M.W.C. Gummow & J.R.F. Lehane, Equity: Doctrines and Remedies 3rd edn.,
Butterworths, Sydney, 1992 at 883.

Journals

A. Mason, The relationship between freedom of expression and freedom of information in Beatson J
and Cripps Y (eds.) Freedom of expression and freedom of information. 2009 Oxford, Oxford
University Press.

EUEOM Final Report on 2016 Zambia General Elections and Referendum, August 2016.

F. Banda, Newspapers and magazines in Zambia: A question of sustainability. Lusaka, Media Institute of
Southern Africa.

MISA Zambia: State of the Media in Zambia for the Second Quarter (April-June) 2016.

P. Matibini, The Struggle for Media Law Reforms in Zambia, 2010 Lusaka: Misa.

Policy Brief on Media Law and Policy in Zambia, MISA Zambia.

Statement by President Lyndon of the USA when he signed the Freedom of Information Act in 1966.
Website

Communication and Information http://www.unesco.org/new/en/communication-and-

information/freedom-of-expression/freedom-of-information/ accessed 6 April 2017.

Zambia shutters the Post Newspaper ahead of elections https://ipi.media/zambia-shutters-the-post-

newspaper-ahead-of-elections/ accessed 7 April 2017.