Arther Chatora and Malvern Mkudu

The arrest of Sunday Mail editor Mabasa Sasa, the paper’s investigations editor Brian Chitemba and reporter Tinashe Farawo over a story implicating police officers and parks authorities in the poisoning of at least 60 elephants, has ignited debates around media freedom, protection of sources, regulation models, professionalism and ethics in journalism.

The trio were detained at Harare Central Police Station, accused of writing and publishing false-hoods. According to the journalists’ defence lawyer, James Muzangaza, the three were arrested for “refusing to disclose the source of their story”. The journalists are being charged “with contra-vening Section 31 paragraph (a) sub-paragraph 2 of the Criminal Law (Codification and Reform) Act Chapter 9.23, which is basically the publication of falsehoods,” according to their lawyer.

There have been a few cases in the past few months where journalists have been accused of writ-ing falsehoods.

In May, the then Media and Information minister Prof Jonathan Moyo stated that the constitution “doesn’t protect falsehoods” and in cases of unprofessional and unethical journalism, “the law will assist them [erring journalists]”. The comments were made in reference to a Newsday article that President Robert Mugabe allegedly owed expelled Zanu-PF party member Ray Kaukonde US$30 million quoting “impeccable sources”. However, Professor Moyo refuted these claims as a fabrica-tion.

In another case, the Newsday received sharp criticism from Professor Moyo after the paper falsely reported that cabinet had skipped nine meetings because of President Mugabe’s foreign trips quot-ing a “Zanu PF politburo member”. However, after meeting Professor Moyo who “provided a sche-dule showing that Cabinet had met nine times”, the paper issued an apology. The retraction read “President Robert Mugabe chaired his ninth Cabinet meeting yesterday contrary to our report on Tuesday imputing that Cabinet had skipped several meetings as a result of Mugabe’s foreign tra-vels…We unreservedly retract the erroneous story and apologise”. Indeed, this retraction speaks to media professionalism, or lack thereof and poses questions on how ethics can be enforced.

These cases can be linked to debates on source protection and media regulation. Source protection received attention early this year with the raid on The Source, a business news agency by tel-ecommunications company Econet Wireless and Steward Bank using a High Court order. The raid was widely viewed by journalists and media freedom advocates as a failure to recognise and re-spect the protection and confidentiality of news sources. As the case exemplified, the media’s watchdog role and goals of promoting transparency and accountability in the public interest are gravely compromised if courts in collusion with corporates continue to enjoy the discretion to com-pel journalist to disclose their sources.

These cases also raise important questions on truth, public interest and source protection, which has regulatory and legal (criminal defamation) implications. Professor Moyo’s comments that the constitution “doesn’t protect falsehoods” and “the law will assist them [erring journalists]” were flagged as worrying. The threat was seen and castigated by media civic groups such as MISA-Zimbabwe who argued that while they do “not condone unethical journalism… criminal defamation stifles media freedom and freedom of expression”. The enduring questions to ask are: how will the law “assist” the journalists without infringing on their fundamental rights? What is the best regulatory model to adopt given the perceived lack of professionalism?

Section 61(2) of the Constitution guarantees “…protection of the confidentiality of journalists’ sources of information”. Interestingly, in the case between The Source and Econet, Professor Moyo came out in support of the publication tweeting, “@ProfJNMoyo Econet raid of The Source violates s61(2) of Constitution on “…protection of the confidentiality of journalists’ sources of infor-mation”. However, with the “cabinet leaks” the practice of journalism and principle of source protec-tion were threatened with the veiled threats of using the “law” to assist journalists who use “invented and therefore non-existent” sources.

Similarly, with the case involving the three Sunday Mail journalists, the police are infringing on the media’s constitutional right to freedom of expression and protection of sources. As Loughty Dube, director of the Voluntary Media Council of Zimbabwe (VMCZ) said, “The police should simply have asked for a retraction, issued a statement with the correct position or registered their complaint through VMCZ”.

Indeed, there should be no place for unethical journalism in the country and it would be imprudent to defend unethical and unprofessional practices. However, threats from government, the police, coupled with the existence of information retention instruments and secrecy laws make it difficult for journalists to practice effectively. This existing restrictive legal framework includes the Access to Information and Protection of Privacy Act (AIPPA), the Official Secrets Act, the Public Order and Security Act (POSA), and the Criminal Law (Codification and Reform) Act which limits the practice of journalism. As a recent study commissioned by UNESCO on the state of journalistic source protection noted, “acts of journalism should be shielded from targeted surveillance, data retention and handover of material connected to confidential sources”.

Professional, ethical and accurate journalism depends on access to information and an enabling operating environment. When relevant and important information in the public interest is willfully withheld from journalists and media organisations, they rely on speculation and “anonymous or impeccable sources” which can affect the professionalism and integrity of the practice.

To engender professionalism and promote high ethical standards, as recommended by the Infor-mation and Media Panel of Inquiry (IMPI) report, there should be a “national Code of Ethics that should demonstrate the commitment of journalists and media stakeholders to ethics and profes-sionalism in the way they report issues in the public interest”.

While Professor Moyo’s comments that the law should and will “assist” unprofessional journalists are in-line with co-regulation model recommended by the IMPI report, it raises questions on how the law should be applied. The IMPI report notes that to guard against interference by media owners and professionals and to promote professionalism and ethics, “there should be a system of co-regulation of the media – statutory and voluntary”. However, there are concerns that constituting a statutory media council “that will be responsible for the enforcement of a media code of conduct” could serve to promote government interests. Furthermore, there are concerns over the constitu-tion, funding and expertise of the proposed council.

The alarming comment made by police spokesperson Charity Charamba on the arrest of the Sun-day Mail journalists cannot go unchallenged. Charamba reportedly said, “The editors and reporters cannot be allowed to hide behind the privilege of press freedom to peddle falsehoods,”

“Our investigations show that the trio is lying”. The comment begs the question, is the police force now the de facto media regulatory authority? As the VMCZ says, the police ought to have re-quested for a retraction, issued a statement with the correct position or registered their complaint through the regulatory body, instead of harassing journalists.

In an environment in which access to information is generally restricted, in order to engender pro-fessionalism and promote ethical reporting, the government must not create unnecessary hurdles through restrictive laws and practices. Press freedom advocates should also continue fighting for reforms and respect of section 61 and 62 of the Constitution which protect journalists and sources and promotes access to information and press freedom.
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