Human rights are those basic standards without which people cannot live in dignity as human beings. Human rights are inherent and all human beings are automatically entitled to these rights. These rights do not have to be given, bought or earned. No one may deprive people of these rights. Human rights are the foundation of freedom, justice and peace. Their observance allows individuals and communities to develop fully. The development of human rights has its roots in the struggle for freedom and equality worldwide.
It is the duty of all judges to uphold the Constitution of Zimbabwe. Section 3 of the Constitution provides that the Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. In Zimbabwe the fundamental rights of Zimbabweans are enshrined in the Declaration of Rights provisions of the Constitution. The Supreme Court in particular is given the vitally important responsibility of ensuring the protection of the fundamental rights of the people of Zimbabwe contained in the Declaration of Rights. It is this court that has the primary function of deciding whether a law is inconsistent with the Constitution.
The Supreme Court also is given extensive powers to provide appropriate remedies to persons whose fundamental rights have been violated. In terms of s 24 of the Constitution it has very wide powers to grant effective remedies where a person’s rights have been or are being violated or where it is likely that they will be violated in the future. (emphasis added)
All legislation passed by Parliament must conform to the Bill of Rights provisions of the Constitution. If a legislative provision is inconsistent with the Bill of Rights, the courts will declare it to be void and of no force and effect. This function primarily vests in the Supreme Court. When there are doubts about the constitutionality of new legislation, persons affected should be entitled to obtain a ruling from the Supreme Court as to whether or not the legislation is constitutional.
In the case of Associated Newspapers of Zimbabwe Pvt Ltd v Minister of State in the President’s Office and Ors S-20-03 a newspaper company [“ANZ”] that operated a large national daily newspaper, The Daily News, approached the court for a ruling on the constitutionality of legislation imposing various controls over the operation of newspapers in Zimbabwe. The court refused to give a ruling on the merits, finding that the applicant could not be heard on the merits because it was openly defying the law. The court said it would be denied legal relief until it complied with this law. This article critically examines the basis of this decision.
The chequered history of AIPPA
In 2002 the Access to Information and Protection of Privacy Act [Chapter 10:27] [“AIPPA”] was passed and came into operation on 15 March 2002. The Access to Information and Protection of Privacy (Registration, Accreditation and Levy) Regulations, 2002 (SI 169C of 2002) were gazetted on 15 June 2002.
The Parliamentary Legal Committee made an adverse report on the AIPPA Bill, indicating that several of the provisions violated fundamental rights provisions of the Constitution, but it withdrew this adverse report after government agreed to make certain amendments to the Bill. The legislation was fast tracked through Parliament despite vigorous opposition to it from members of the main opposition party.
This new legislation proved to be extremely controversial and attracted considerable criticism both inside and outside Zimbabwe. The critics saw the legislation as an attempt to rein in the private media and subject it to heavy-handed political control. ANZ obviously shared this view.
Following the outcry over this legislation, the Zimbabwean government apparently gave undertakings to the Nigerian and South African governments that it would repeal or amend this legislation. The Act was also very poorly drafted and inevitably it had to be brought back to Parliament to be tidied up. In 2003 an amendment Bill proposing extensive amendments to AIPPA came before Parliament. Again the Parliamentary Legal Committee gave an adverse report on this Bill, but again this report was withdrawn after government agreed to withdraw or amend certain sections of the Bill. The Access to Information and Protection of Privacy Amendment Act, 2003 (No 5 of 2003) was approved by Parliament on 11 June 2003. However as at 18 September 2003, the Amendment Bill as agreed to by Parliament had not been published in the Government Gazette and accordingly it was still not yet law as at that date.
Several constitutional challenges have been mounted to AIPPA. Some of these have been in response to criminal prosecutions brought against journalists under the Act. One of these led to the striking down of a criminal provision by the Supreme Court after the state conceded that the provision in question was unconstitutional. The Independent Journalists Association of Zimbabwe group also brought a case in the Supreme Court challenging various sections of AIPPA that affect media practitioners; it is still awaiting the judgment in this matter.
The response of ANZ to AIPPA
After the Access to Information and Protection of Privacy Act came into operation, the ANZ believed that its fundamental rights would be seriously prejudiced if it registered under the Act. It was of the opinion that if it subjected itself to the controls contained in the Act its right to freedom of expression would be drastically curtailed and it would be hamstrung in disseminating information to its readers. It believed that the Minister and the Commission responsible for applying the controls were partisan and highly biased against the private media in general and the Daily News in particular and that the controls would therefore be applied in a biased and prejudicial way against it.
The ANZ did not, however, adopt the stance that it would simply ignore the new law and dare the authorities to prosecute them. Instead it approached the Supreme Court for a ruling upon the constitutionality of the law. Essentially it challenged the provisions relating to the registration of newspapers and control of newspapers by the government appointed the Media and Information Commission. It also raised objections to the requirement for registration that it disclose its private business operations and financial details, and that it submit the curricula vitae of all its managers and directors, and to disclose the political affiliations.
The Supreme Court decision
The Supreme Court decided that in terms of s 24(1) of the Constitution the newspaper company had locus standi to challenge the constitutionality of the AIPPA. However, it had openly defied the law by failing to register as required by this law. This meant that the applicant had “dirty hands” and a litigant with dirty hands will be denied relief.
In coming to this conclusion the court reasoned as follows: There is a presumption that a law is valid unless and until a court of law declares it to be invalid. Until a court declares the law to be invalid, it must be obeyed. A citizen who disputes the validity of a law must first obey it and argue about its legality afterwards. There is no difference in principle between a litigant who defies a court order and a litigant who defies a law. Dishonesty, fraud or moral obliquity is not an essential ingredient for the application of the dirty hands doctrine. In the absence of good cause being shown, the court will not grant relief to the litigant. The fact that the applicant had disclosed to the court its defiance of the law was totally inadequate to purge its contempt of the law. It was not impressed by applicant’s assertion that it could not in good conscience apply to register. The requirement to register was not blatantly unconstitutional and the other impugned sections of the Act were not “totally repugnant.” Additionally, the applicant’s company was apparently the only media house that had refused to register on conscientious grounds and if the Act “was as morally repugnant as the applicant would have the court believe one would have expected more than one conscientious objector.” It was untenable for applicant to contend that is not bound by a law it considers to be unconstitutional. A situation where citizens are bound by only those laws they consider constitutional is a recipe for chaos and a total breakdown of the rule of law. A court of law cannot connive at or condone the applicant’s open defiance of the law. The applicant was thus not entitled to be heard on the merits of its constitutional challenge until it desisted from breaching the law. It could either comply by submitting an application for registration or desist from carrying on the activities of a mass media service. Authority relied on by the Supreme Court In reaching its conclusion that the applicant must be denied relief because it had dirty hands, the Supreme Court relies heavily upon the English decision of F. Hoffman-La Roche & Co A.G. & Ors v Secretary of State for Trade and Industry [1975] AC 293. [The decision in this case was upheld on appeal to the House of Lords although Lord Wilberforce gave a dissenting judgment. The House of Lords case is reported as of F. Hoffman-La Roche & Co A.G. & Ors v Secretary of State for Trade and Industry [1974] 2 All ER 1128 (HL) ] The facts of the Hoffman case were that the Monopolies Commission had inquired into and reported on the profit levels of a pharmaceutical company. Based upon that report, the Secretary of State had placed before Parliament a statutory order requiring the company to reduce its prices and Parliament had approved this order. The company informed the Secretary of State that it would not obey this order. It claimed that the procedures of the Monopolies Commission contravened the rules of natural justice and that the order itself was ultra vires. The Secretary of State responded by claiming an interim injunction to restrain the company from charging prices above the prices specified in the order. The company was only prepared to submit to interim injunction if the Secretary of State gave an undertaking to pay damages to the company should the company succeed in its arguments relating to the invalidity of the order. The court ruled that had the Crown been seeking to assert a proprietary or contractual right, the normal rule in English law would have applied, namely that the litigant would have had to have given an undertaking to pay damages should the opposing party succeed in the main action. It was different, however, where the Crown was seeking through an interim injunction to enforce the law. Where the Crown has commenced proceedings for an injunction to enforce the law in a manner prescribed by a statute, the person against whom the injunction is sought would have to show a strong case for granting the injunction subject to a condition that the Crown give an undertaking to pay damages. This is because there is a presumption of validity in respect of a statutory instrument. A statutory instrument is, unless and until successfully challenged, the law of the land. If and when it is successfully challenged it will be retrospectively null and void. In the ANZ case the Supreme Court bases its judgment upon dicta from Lord Denning in the Court of Appeal decision in the Hoffman case at pp 321-322: The Secretary of State has made, under the authority of Parliament, an order which compels the plaintiffs to reduce their prices greatly. That order has been approved, after full debate, by both Houses of Parliament. So long as that order stands, it is the law of the land. When the courts are asked to enforce it, they must do so. . . . They argue that the law is invalid, but unless and until these courts declare it to be so, they must obey it. They cannot stipulate for an undertaking as to the price of their obedience. They must obey first and argue afterwards. I would allow the appeal and grant the injunction as asked without requiring any undertaking from the Crown as to damages. From these dicta, the Zimbabwe Supreme Court derives the principle that “ a citizen who disputes the validity of a law must obey it first and argue afterwards.” With respect, it is simply not possible to derive from the Hoffman case and the dicta of Lord Denning the principle that the Supreme Court enunciates and proceeds to apply in a case that involves a constitutional challenge. The Hoffman case did not involve a constitutional challenge and the dirty hands doctrine was not in issue at all. The main issue was whether the Crown was obliged to give an undertaking to pay damages in the event of the statutory instrument in question being later ruled to be invalid. It was in this context that the court made its statements about the presumptive validity of laws, and the obligation of the company to obey the law without stipulating conditions for compliance. The courts in the Hoffman case certainly did not rule that a person who is arguing that a law requiring compulsory registration was a violation of his fundamental rights must first comply with that law before he is entitled to a ruling from a constitutional court regarding the constitutionality of that law. It should be pointed out that towards the beginning of the Supreme Court judgment in the ANZ case, the court refers to the legal arguments of counsel for first and second respondents. Counsel argued that an Act if Parliament is presumed to be valid and constitutional until the contrary is shown and where an Act is open to more than one construction, the court will adopt the construction that will reconcile the statute with the Constitution. A starting presumption of constitutionality, however, does not lead on to a conclusion that a litigant must comply with a law that he is arguing seriously violates his fundamental rights. If his argument that the law is unconstitutional succeeds in court, he will have rebutted any presumption of constitutionality and the law will be void. The question is whether he is entitled to be heard by the court and have the matter determined. It is disturbing that one of the main cases relied upon by the applicant to combat the clean hands argument is not dealt with at all in the judgment of the Supreme Court despite the fact that this case is far more relevant than the Hoffman case. The case in question is Minister of Home Affairs v Bickle 1983 (1) ZLR 99 (S), an earlier decision by the Zimbabwe Supreme Court. This case involved Ministerial order made in terms of Emergency regulations declaring the property of Bickle to be forfeited on the basis that he was an enemy of the state. The main basis of the challenge was that this order violated his constitutional rights. The Minister took the preliminary point that Bickle had no right to approach the court for relief as he had put himself physically beyond the jurisdiction of the court and was therefore a fugitive from justice. The Supreme Court ruled that it would only be in the most exceptional circumstances that the court would deny a litigant access to the courts. Fieldsend CJ expressed this view as follows at said this at 106C-D: [The argument of the respondent] involves a misconception of the role of the Courts. Their duty is, of course, to enforce the law of the land and to rule against or punish anyone who acts contrary to it. But in the normal way they do this only in cases brought before them to enforce the law, whether it be civil or criminal. If the courts are to fulfil the obligations put upon them by the Constitution, they cannot, save in the most exceptional circumstances, deny an aggrieved person access to them. Section 18 (1) of the Constitution provides that every person is entitled to the protection of the law and section 18 (9) provides that every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations. He went on to say at 106G-H –107A: The public policy consideration in this case appears to me to be governed by s 24 of the Zimbabwe Constitution. . . . This grants to any person who alleges that the Declaration of Rights has been or is likely to be contravened in relation to him the right to apply to the Supreme Court for relief. The constitutional right of access should prevail unless it is plain that contempt of which the applicant may be guilty itself impedes the course of justice. As Denning LJ said in Hadkinson v Hadkinson [1952] 2 All ER 567 (CA) at 574: It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance. The specific exceptional circumstances that the court had in mind are dealt with earlier in the judgment. The first category of cases where relief has been denied is those cases in which convicted persons have become fugitives from justice. Such persons are denied the right to proceed with their appeals if they have escaped from custody and or have estreated their bail and become fugitives from custody. The court points out that there are numerous cases in Zimbabwe and South Africa in which the accused have been denied the right to proceed with their appeals in these circumstances. It also refers to one civil case where in a civil case a person was denied relief because, when he brought the civil case, he had become a fugitive from justice whilst on bail pending appeal. Two other cases where relief was denied are referred to. The first involved a person who was denied relief because he had disobeyed an order restricting him to restriction area and the second in which a litigant was denied relief because she was in contempt of a court order. In the ANZ case, the applicant was certainly not a fugitive from justice and it had committed no contempt of court that itself impeded the course of justice. It was not a case in which the State was seeking to enforce the law. Granted the ANZ had refused to register, but the reason for this was that it believed that the requirement of registration, together with the restrictions after registration, was unconstitutional and violated its right to freedom of expression. It therefore approached the Supreme Court hoping that the Supreme Court would settle the matter by making a ruling on this matter. This was surely not an exceptional circumstance where the litigant should be denied access to the court. Cases from other jurisdictions on the clean hands doctrine The clean hands doctrine has been rejected in a number of constitutional cases from other jurisdictions. In United States of America one important case is that of People v Hawkins 181 Ill 2d 41 NE2d 999 (1998) In this case the defendants were being tried for murder. They had attempted unsuccessfully to bribe the judge before whom they were being tried. This judge did not recuse himself after the attempted bribery but proceeded to find them guilty and sentenced them to death. The defendants then applied to have the decision set aside and for there to be a new trial. The basis of this application was that their attempted bribery of the judge had compromised the fairness of the trial. The State accepted that the fairness of the trial was doubtful in the circumstances but argued that the application should be dismissed because the defendants had unclean hands, as it was their act of attempted bribery that had compromised the trial. The Illinois Supreme Court granted the application. It rejected the State’s argument. The defendants had a fundamental constitutional right to a fair trial and that right could not be taken away because they themselves had compromised the fairness of the trial by their act of attempted bribery. The constitutional right could not be taken away because it was their fault that the fairness of the trial had been undermined. The defendants had not had a fair trial and the acceptance of the State’s argument would have meant, in effect, that the defendants would have executed for bribery. This American case establishes that in constitutional cases the overriding consideration must be to uphold the constitutional rights of a person and these rights cannot be forfeited because he has dirty hands. There is also an important decision from the European Court of Human Rights in the case of Van der Tang v Spain (1996) 22 E.H.R.R. 363. In that case the applicant had complained of the unreasonable length of pre-trial detention. The applicant had absconded and evaded trial after being released on bail. The Spanish Government argued that that the applicant was not entitled to bring a case against the very State whose justice he had evaded. They referred to the “clean hands” doctrine in international law, according to which the responsibility of a State is not engaged when the complainant himself has acted in breach of the law. The alleged violation of the Convention by the Spanish authorities occurred before the applicant had absconded in breach of his undertakings. While he remained “within [the] jurisdiction” of Spain, and in particular in custody, the applicant was entitled to expect that the rights and freedoms set forth in the Convention would be secured to him in accordance with Article 1 of the European Convention. His subsequent act of flight, albeit wrongful, did not render illegitimate his interest in obtaining from the Convention institutions a ruling on the violation he is alleging. In the light of these cases, the overriding consideration in the ANZ case should have been to ensure that ANZ’s fundamental rights were not violated. The Supreme Court could have ensured this by making a ruling on the constitutional issues rather than refusing to hear them because of their failure to comply with the very law it was challenging. Challenge before and after prosecution It is well-established law that a person being criminally prosecuted for contravening a law is entitled to raise the defence that the law is invalid because it violates that person’s fundamental constitutional rights. The person can ask the court dealing with the matter to refer the issue of constitutionality to the Supreme Court for determination. On referral the Supreme Court will have to decide this matter. It is obliged to make a ruling because if it violates one or more provisions of the Declaration of Rights, such a law is void and of no force and effect. See In re Munhumeso & Ors 1994 (1) ZLR 49 (S). This would apply even if the accused openly proclaims that he is not going to obey the law because he believes it is unconscionable and violates his fundamental rights. If this person is prosecuted for contravening that law, he is still entitled to a ruling from the Supreme Court as to whether the law is void because it is unconstitutional. The court cannot decline to decide the constitutional issue because the accused person has acted in blatant and open defiance of the law. This matter must be determined and the most appropriate court to make this determination is the Supreme Court. Thus, in effect, a constitutional challenge to a criminal provision freezes the criminal process pending the determination by the constitutional court. Thus if a prosecution had been brought against ANZ the newspaper would have defended itself by challenging the constitutional validity of the provision under which the prosecution was brought and the matter would have been referred to the Supreme Court which then would have been obliged to make a ruling on the issue of constitutionality. A person who believes that a new law is unconstitutional and that compliance with it will lead to violation of his or her rights should surely not be in a worse position that the person being prosecuted under that law. Rather than wait for a prosecution, the ANZ had approached the Supreme Court in order to obtain a ruling on the constitutionality of the law. The ANZ did not simply ignore the requirement to register under the law; it instituted a constitutional challenge to the registration provision and various other provisions of the Act. It was entitled to expect that the Supreme Court would decide whether or not the provisions are constitutional. If the Supreme Court had ruled the law to be unconstitutional, the paper would have been vindicated. If the Supreme Court had ruled it to be constitutional, the paper would then have been obliged to comply with the law. Just as the lodging of a challenge to a criminal provision will halt the criminal process until the constitutionality of the provision is decided, so too a constitutional challenge prior to a prosecution under a law that contains penal sanctions for failure to comply with it should freeze the application of the law until the constitutionality of the law has been determined. Such cases should, of course, be dealt with on a reasonably expeditious basis. Contempt of court and defiance of the law The Supreme Court maintained that there was no difference in principle between a litigant who defies a court order and a litigant who defies the law. With respect, there is a considerable difference between a person who refuses to obey a court order on the one hand and, on the other hand, a person who declines to obey a law because he believes that compliance with a law will lead to a serious violation of his or her fundamental human rights and approaches the constitutional court for a ruling on this matter. In the first situation a court has made an order and the person against whom it is made is obliged to obey that order. In the second situation the person has approached the appropriate court to seek guidance from that court as to whether the legislative provisions violate his or her fundamental rights. Effect of requiring compliance with law later ruled unconstitutional A law that violates human rights unconstitutionally is null and void. To require compliance with an objectionable law before any ruling on constitutionality is given will mean that a person will only be able to obtain a ruling that a law is void and of no force and effect after he or she has complied with the law or has stopped doing something that he is constitutionally entitled to do. This could result in grave prejudice and serious violation of a person’s rights. Until the law is finally struck down as being unconstitutional a person will lose his or her fundamental rights. These fundamental will be regained when the law is struck down but in the meantime he or she may have suffered serious harm. In the ANZ case the Supreme Court stated that ANZ must first purge its contempt of the law. It could do so by registering or it could “desist from carrying on the activities of a mass media service illegally.” In other words, it either had to do the very thing it considered to be a serious violation of its rights, namely register or it had to close down its newspaper until the Supreme Court finally decided upon the constitutionality of AIPPA which would be seriously financially prejudicial. If the Supreme Court finally decided that the registration requirement was unconstitutional the time and effort spent on registering would have been wasted. There is an even greater problem. If a newspaper decides to seek registration in order to be able to pursue its constitutional challenge further, having initially declined to comply with the law, the body responsible for deciding whether to register may refuse to register it because it had seen fit to disregard the law and therefore had dirty hands! The logical consequence of this approach is that a person may suffer grave harm as a result being forced to comply with a law that is later ruled to be unconstitutional or to desist from doing something by that law that he or she is constitutionally entitled to do. For example, if a law ordered the immediate closure of a newspaper simply because it had criticised government, this would amount to an unconstitutional violation of the right of freedom of expression and the newspaper should be able to challenge the law without first complying with it. To take an extreme hypothetical example, what if a law was passed requiring the Chief Justice to resign immediately, without any hearing being held to investigate whether there were good grounds for the forced resignation. What if the failure to comply with this law was made a criminal offence and what if the law further laid down that the Chief Justice must forfeit all his pension entitlements. According to the Supreme Court’s ruling, the Chief Justice would have to resign first and then approach the Supreme Court to have the law declared to be unconstitutional. The response by the Supreme Court to this extreme example, and to the previous example of the law closing down a newspaper, would presumably be that the law is so blatantly unconstitutional and so totally repugnant that it would not require compliance with the law prior to ruling on its constitutionality. But as shown above, whether and to what extent a challenged law is unconstitutional can only be reliably established by delving into the merits of the case. Consequences of allowing non-compliance pending constitutional determination The Supreme Court asserts that it would be “a recipe for chaos and a total breakdown of the rule of law” to allow a situation to prevail where citizens “are bound by only those laws they consider constitutional”. It is submitted that deciding the constitutionality of an impugned law in the sort of situation that prevailed in the ANZ case would not lead to a breakdown of the rule of law. As pointed out earlier, the ANZ was arguing that the requirements of the law it was challenging violated its fundamental rights and the very act of compliance with that law would be to surrender those rights. It therefore asked the Supreme Court to determine this matter first. As pointed out previously where a citizen refuses to obey a criminal law that he considers to be a flagrant violation of his constitutional rights and he or she is prosecuted under that law he or is entitled to challenge the constitutionality of the criminal law. So too in the ANZ situation, the challenger should be entitled to a ruling regarding the constitutionality of the law. With respect, it is a misplaced concern that allowing constitutional challenge without prior compliance in the type of situation found in the ANZ case will lead to citizens generally to disregard laws which they consider to be unconstitutional. The ANZ did not simply disregard the law based on its own interpretation of the constitutionality of the law. What it did was to back up its belief that the law was unconstitutional by approaching the Supreme Court with detailed arguments, well supported by authority, as to why it considered the law to be unconstitutional and asking the court to make a ruling so the matter could be settled. Such constitutional challenges are an expensive business and few persons can afford to bring such matters so that few such cases are brought before the court. When serious constitutional challenges are brought before the Supreme Court, however, it is important in the public interest that the constitutional issues raised be determined as soon as possible. There is also a filter device to screen out frivolous and vexatious constitutional challenges. In terms of s 24(4)(b) of the Constitution, the Supreme Court has the power to filter out frivolous or vexatious constitutional challenges without having to have hearings in respect of such cases. Thus if a litigant brings a spurious constitutional challenge simply to avoid having to comply with the law, the Supreme Court can throw out the case under this provision without a hearing and can also award costs against the litigant. This is a deterrent to spurious litigation. Procedural anomalies One of the key cases upon which the Supreme Court relied in arriving at its conclusion in the ANZ case was the case of F. Hoffman-La Roche & Co A.G. & Ors v Secretary of State for Trade and Industry [1975] AC 293. This case was not referred to by either counsel in their arguments in court and must therefore have been found after the hearing by one of the Supreme Court during the process of preparation of the judgment. Applicant’s counsel was not subsequently given an opportunity to address arguments to the court about this case. This was a very unfair because applicant’s counsel may well have been able to advance compelling arguments to show that this case was not applicable to the situation of the ANZ. (In fact, on close analysis this case does not support the proposition for which it was used as authority by the court.)The unfairness of this approach is highlighted by this statement by Dumbutshena AJA in the case of Kauesa v Minister of Home Affairs & Ors 1996 (4) SA 965 (NmSC) at 973-974: It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a Judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such circumstances to inform counsel on both sides and invite them to submit arguments either for or against the Judge’s point. It is undesirable for a Court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel. By contrast, as pointed out earlier, no reference whatsoever is made in the judgment to a Zimbabwean Supreme Court judgment upon which applicant’s counsel placed heavy reliance. Blatant unconstitutionality Although the Supreme Court declined to allow argue on the merits of its constitutional challenge, it nonetheless made observations about the strength of the constitutional challenge. The provision requiring registration of newspapers, it said, is “not blatantly unconstitutional”. “At worst”, its said, “its constitutionality is debatable.” It went on to say: “Indeed the licensing of the media particularly the electronic media has been adjudged constitutional in some jurisdictions.” In support of this it cited the case of Athukorale & Ors v Attorney-General of Sri Lanka (1997) 2 BHRC 610. The various other sections impugned by ANZ, it said, were not “totally repugnant and would need careful consideration to determine their constitutionality.” What this seems to imply is that if the Supreme Court had considered that the registration provision was “blatantly unconstitutional” or the other sections challenged were “totally repugnant”, it would have been prepared to make a ruling on the merits even though the applicant had refused to obey the law. If this is what the Supreme Court was implying, it is submitted that it would be very difficult to decide when an impugned law reaches the threshold of being “blatantly unconstitutional” or “totally repugnant”, bearing in mind that the litigant will be complaining that his or her fundamental rights have been or will be violated. In the present case the contention of ANZ was that not only the registration requirement but also the various controls operated by a government appointed body that constituted a serious violation of its fundamental right to freedom of expression. The extent to which there was a violation of fundamental rights can only surely be decided after listening to the arguments from counsel and an examination of the merits. If the constitutionality of a statutory provision is debatable, it needs to debated before conclusions are reached. In any event, the descriptions “not blatantly unconstitutional” and “not totally repugnant” are strange. Either a provision is constitutional or it is not. It does not have to be “blatantly unconstitutional” to be invalid. If something is repugnant it is repugnant; it does not have to be “totally repugnant” to be objectionable. At the core of the argument being advanced by ANZ was that the entire statutory scheme of control over the print media was constructed so that it could be used by the ruling party as a political weapon to silence or completely hamstring the private media which in the past had been critical of government and exposing wrongdoing on its part. It therefore was arguing that the scheme as a whole would wreak havoc with its fundamental right to freedom of speech, including the right to disseminate information to the public. It was arguing that the Minister who was the architect of this legislation had often publicly expressed his antipathy towards the private press. This Minister appointed all the members of the Media Commission and he had appointed persons likely to be biased against the private press. This was the basis upon the registration and provisions that applied after registration were being attacked. It was not just an argument that ANZ should not be obliged to register; it was an argument about the nature and extent of the control system contained in AIPPA. The starting point in any discussion about state restrictions upon the media must be the importance that is attached to freedom of expression. Freedom of expression is one of the most precious of all the freedoms and is a vitally important right and an indispensable condition for a free and democratic society. Freedom of expression is an essential ingredient of a democratic society. The UN General Assembly has said that it “is a fundamental human right and . . . the touchstone of all other fundamental rights and freedoms.” This has been accepted by courts around the world, including Zimbabwe and is incorporated into democratic constitutions. The African Commission on Human and Peoples’ Rights has said freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of public affairs in his country. Paragraph 1.1 of the Declaration of Principles on Freedom of Expression in Africa , provides: Freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy. Freedom of expression envisages free flow of information in a society. Democracy can flourish only in societies where information and ideas can flow freely. Free flow of information requires that the press be free to disseminate information and that the public have a right to receive information disseminated by the press. In a democracy the press will operate as a watchdog on behalf of the governed and will expose abuse of power, corruption and maladministration. A democracy will allow a diversity of information and opinions to be disseminated. Paragraph 3 of the Declaration of Principles on Freedom of Expression in Africa, thus provides that freedom of expression “imposes an obligation on the authorities to take positive measures to promote diversity” and this includes “availability and promotion of a range of information and ideas to the public” and “pluralistic access to the media and other means of communication.” In a democratic society the press should only be subject to restrictions that are reasonably required in a democracy. State registration of media institutions and other state controls over the media can be, and often are used as a mechanism for political control. They can be used to silence or unduly restrict sectors of the press that the government perceives as hostile. AIPPA not only requires newspapers to register with a state appointed body; it gives that body, which is appointed by the Minister and is under his control, vast powers of control over the print media It is strongly arguable that these provisions curtail the right to freedom of expression to an extent that is totally incompatible with a democracy. Although international law does not at present rule out purely technical registration schemes, it is recognised that if the Government does decide to require media organisations to register, this must be a purely administrative matter, akin to company registration. The information required should be lodged with an administrative body and registration should be automatic upon the submission of the relevant documents. In a case from Nigeria [Media Rights Agenda and Others v Nigeria, 21 October 1998, Communication Nos. 105/93, 128/94, 130/94 and 152/96, para.52.] the African Commission on Human and Peoples’ Rights had to decide upon the legality of a legal requirement for newspapers to register, with discretion on the part of the authorities to refuse registration. The Commission stated: A payment of a registration fee and a pre-registration deposit for payment of penalty or damages is not in itself contrary to the right to the freedom of expression. The government has argued that these fees are ‘justifiable in any democratic society’, and the Commission does not categorically disagree…. Of more concern is the total discretion and finality of the decision of the registration board, which effectively gives the government the power to prohibit publication of any newspapers or magazines they choose. This invites censorship and seriously endangers the rights of the public to receive information, protected by Article 9.1. There has thus been a violation of Article 9.1 of the African Charter on Human and People’s Rights. Principle VIII of the Declaration of Principles on Freedom of Expression in Africa on the print media states that: “any registration system for the print media shall not impose substantive restrictions on the right to freedom of expression.” Within the United Nations, the Human Rights Committee has on several occasions made it clear that licensing systems for either the press or journalists which afford discretion to refuse licenses are contrary to the guarantee of freedom of expression. The Human Rights Committee is the body officially responsible for supervising State compliance with their obligations under the International Covenant on Civil and Political Rights. Zimbabwe is a State party to this Covenant. In 1999 the Committee noted, in respect of Lesotho’s regular report that the Committee was “concerned that the relevant authority under the Printing and Publishing Act has unfettered discretionary power to grant or to refuse registration to a newspaper, in contravention of article 19 of the Covenant.” [Concluding Observations on Lesotho’s Initial Report, 8 April 1999, CCPR/C/79/Add.106, para. 23.] Also in 1999 it expressed concern about the newspaper licensing laws in Cambodia. [Concluding Observations on Cambodia’s Initial Report, 27 July 1999, CCPR/C/79/Add.108, para. 18.] It has been said that a technical registration scheme for mass media organisations is compatible with the guarantee of freedom of expression only if it meets the following conditions: • the authorities should have no discretion to refuse registration once the requisite information has been provided; • registration should not impose substantive burdens and conditions upon the media; and • the registration system should be administered by bodies which are independent of government. The last criterion is important. It is now well established that any regulatory body must be independent of government. Constitutional courts in several countries have affirmed this point. This was pointed out in the very case that the Zimbabwe Supreme Court referred in its judgment in the ANZ. In the case of Athukorale & Ors v Attorney-General the Supreme Court of Sri Lanka, faced with a Bill providing for a Broadcasting Authority, some of whose members would be Government appointees, stated: Since the proposed authority, for the reasons explained, lacks independence and is susceptible to interference by the minister, both the right of speech and freedom of thought are placed in jeopardy…We are of the opinion [that the bill’s provisions] are inconsistent with … the Constitution. It is strongly arguable that the Media Commission in Zimbabwe completely fails to meet these standards. The Commission is not an independent body. The Minister appoints all its members and he has control over it and can sack Commissioners on vague grounds. The present composition of the Commission strongly points to the conclusion that it is a partisan body and is not independent. One further point must be made about the Athukorale case. The Zimbabwe Supreme Court purports to use this case for the proposition that registration of the media has been found to be constitutional in some jurisdictions. It is correct that this case did accept that statutory regulation of the broadcast media is not in itself unconstitutional. However, there are legitimate reasons for statutory regulation of broadcast media, provided that this is done on a non-political basis by an independent body. One of these is the limited availability of broadcast frequencies. Regulation of the print media cannot be legitimised by reference to the justifiable need for regulation of broadcasting and all around the world it is accepted that regulation of the print media must be far less prescriptive. Conclusion The approach adopted in the ANZ case was not, as claimed by the court, founded on “sound authority and practical common sense.” The judgment does not cite any case law that lays down that in a constitutional case, a constitutional court will deny an applicant the right to obtain a ruling because it has declined to comply with a provision of a law which it contends violates his or her rights. It is not a matter of practical common sense that the court should decline to decide the matter on the merits until the defiance of the law has been purged. In fact this approach can produce grave injustice and serious harm.