By Isaac Mwanza

“If you put a key under the mat for the cops, a burglar can find it too. Criminals are using every technology tool at their disposal to hack into the people’s accounts. If they know there is a key hidden somewhere, they won’t stop until they find it” – Tim Cook

In Zambia, the questions of access to information (ATI), regulation of non-governmental organisations (NGOs) and the media have been a thorny generational issue which provoke personal, political and professional debates as well as resistance from those likely to be affected by such pieces of legislation.

RELATIONSHIP BETWEEN ACCESS TO INFORMATION AND MEDIA REGULATION

Speaking when he featured on Hot FM Radio’s breakfast show in January, 2023, Zambia’s Justice Minister Mulambo Haimbe, S.C. said Zambians should expect progress on the enactment of the Access to Information Bill once the media themselves, resolve the issue of self-regulation, a matter that didn’t sit well with some media houses.

The Minister’s proposition obviously raises the question as to whether there is any link between access to information and media regulation? During the said programme, the Justice Minister said:

“The Access to Information Bill gives a lot of freedom not only to the media but also the general public in terms of access to information. Building into that, it comes with responsibility intended to be managed through a self-regulatory process with regard to the media…The two go hand in hand… So perhaps we have to look at it as a shared responsibility rather than a responsibility of government alone.”

If enacted, the Access to Information law will give both the media and the general public access to information which is generated or held by the government. For the media, such information is not for storage but to provide content and context to the news and communicating information to the public.

The media would be expected to sort through the information and determine what should be safely communicated to the public as well as how it should be communicated, without causing harm either to government operations, to persons or groups or organisations or to the public itself. This, therefore, certainly comes with huge responsibility.

It would not be wise to state that there is no relationship between freedom of expression, the freedom to access governmental information and freedom of the media. These three freedoms are inter-related and all three, give rise to a duty. Kenya has all these three freedoms enshrined in their Constitution.

Rights and freedoms do not exist without corresponding duties and responsibilities. While it is true that to access information is a human right, responsibilities on the part of those who claim and exercise that right, especially the media and civil society, are a logical consequence of claiming that right.

In order to enjoy the right to information, which we now claim to be a human right, corresponding responsibilities are required on the part of the media, citizens and for the state itself.

Monitoring content, especially that which may be generated from information obtained through the proposed access to information law, plays an important role when considering the role and the place of media accountability in the wider relationship between media freedom and media responsibility in a democratic society.

Government and citizens generally share a direct reciprocal relationship in which citizens elect government officials and must then adhere to laws made by the government which they put in place.

We must acknowledge the basic fact that the power to elect and put a government in place, does not put citizens above that government and the laws it may pass. The laws apply equally to both government and citizens.

Equally, the relationship exist between the media and government in which government must and is under an obligation to create a conductive environment for media freedom and freedom of expression to thrive.

The enactment of access to information law, although beneficial to citizens generally, creates an addition relationship between government and the media as a front in accessing information held by government.

The government will be producing an additional legal framework within which the media will be expected to operate as they access information held by the government.

The media will scrutinise activities of government based on information they would have accessed and then report to citizens who, at present, have a rather limited capacity to hold the media accountable for their activities as there exist a weak relationship between citizens and the media.

This is where media accountability plays a role at the interface among the three freedoms: access to information, freedom of expression and media freedom, all of which impose a duty of care on the part of the media and all who access such information.

So yes, the Minister was right. We need to resolve this issue of accountability of the media, and all other key stakeholders such as NGOs who must access information as a matter of a right, through some form of self-regulation.

ATTEMPTS TO REGULATE NGOS
The first attempt to regulate NGOs was done by means of statutory regulation when Government presented the 2007 NGO Bill to Parliament which was later withdrawn after civil society protested against it on the grounds that it was a draconian piece of legislation that could not facilitate any meaningful growth of the NGOs in the country. NGOs had instead, opted for self-regulation.

Even though the media and NGO fraternity relentlessly fought tooth and nail to stop statutory regulation in preference to self-regulation, government managed to carry out its will and eventually passed the NGO law. A fully-fledged statutory piece of legislation to regulate NGOs was enacted in 2009. The general feeling among activists was that the NGO law was to make the NGO movement weaker, not better.

NGOs later regrouped and challenged this statutory regulation of their movement in court, but later withdrew the action after Government promised to attend to the issues which the NGOs had raised in their action before the courts.

It would appear that, after a lengthy delay, Government will soon be presenting the proposed new NGO Act drafted by the Zambia Law Development Commission (ZLDC) in this session of Parliament which, as far as this author is aware, has failed to respond to earlier demands by NGOs for self-regulation, or to give more voice and power to NGOs. It has even failed to provide for more seats for NGOs on the NGO Registration Board.

The new NGO Bill, if enacted into law, will strengthen statutory regulation of NGOs and has maintained government’s far-reaching powers to approve the area of work for NGOs, and places NGOs to work at the direction of a government minister who will have power to issue statutory instruments for purposes of dealing with any regulatory matter of NGOs, as the minister and his technocrats see fit.

The proposed Bill is as draconian as the 2009 NGO Act, leaving the NGOs in exactly the same place as they were in 2009, which brings into question the wisdom of their decision to discontinue their court action challenging the original NGO Act in 2009.

An examination of the proposed new NGO Bill shows that there are provisions in the proposed statute which give a semblance of self-regulation by blurring the prominence of persons or entities which are being regulated.

The proposed new Act also obfuscates and mixes up certain roles, resulting in confusion among role players and presents what is essentially a false picture of self-regulation when in fact the power to regulate, is vested in the office of the minister, to be exercised by government officials.

The author has not yet seen the final version of the Bill as completed by the Ministry of Justice but NGOs are advised to be on the look out for it, once it is made public. Self-regulation of NGOs which is binding by statute is the way to go but not in a manner it was resolved through the ZLDC-led consultations. What came out from those consultations is far from self-regulation by NGOs.

[To be continued tomorrow]

Published by the Zambian Daily Nation, Feb. 2023

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