…High Court soon to
decide on Veritas case against ZBC, Zimpapers
Moses
Ziyambi
MASVINGO
– The
High Court last week reserved judgement in a case of alleged bias and lack of
objectivity by State controlled media in the run-up, during and after the
harmonised elections last year.
Justice Joseph Mafusire
rejected pleas by the Zimbabwe Broadcasting Corporation (ZBC), Zimpapers,
Zimbabwe Electoral Commission (Zec), Zimbabwe Media Commission (ZMC) and the
Broadcasting Authority of Zimbabwe (BAZ) to throw out Veritas’ case on
technical grounds and agreed to hear its merits.
Represented by Doug
Coltart of Mtetwa and Nyambirai Legal Practitioners, Veritas sought an order
compelling ZBC to report without bias and to give all political parties their
fair share of broadcast time.
Veritas argues that Zec
failed to execute its media monitoring duty as mandated by the Electoral Act, a
situation it claims saw Zanu PF getting over 70 percent of positive ZBC coverage
in the run-up to the July 2018 harmonised elections.
The rights, legal and
parliamentary watchdog claims the biggest opposition MDC Alliance party got
nine percent mostly negative coverage on the public broadcaster. Veritas bases its
arguments largely on findings of a study conducted by Media Monitors – formerly
Media Monitoring Projects Zimbabwe (MMPZ) – after the harmonised elections.
Represented by Evans
Moyo of Scanlen and Holderness, the public broadcaster and other respondents,
however, sought to have the case dismissed on the basis that it had become
‘academic’ as it had been overtaken by events due to the fact that the 2018
elections had come and gone.
They also declared a
material dispute of facts in the case in reference to assertions made by
Veritas in the application. A material dispute of fact arises
when facts put by the
applicant are disputed and traversed by the respondent in such a manner as to
leave the court with no ready answer to the dispute between the parties in the absence of further
evidence.
Coltart, however,
argued that the case had not been overtaken by time and that it was still
relevant as elections were not an event but a cycle, and implored the court to
set a precedence which would ensure best media practice in future elections.
“The relief sought,
Your Lordship, is still very much relevant and applicable to present circumstances
because elections are not an event but a cycle. There are also by-elections
that always happen throughout the electoral cycle and whatever ruling the court
will hand down will have a bearing on all other elections going forward,”
argued Coltart.
Zimpapers were,
however, unrepresented in court as they decided did not oppose the relief
sought by Veritas.
The respondents,
through their various lawyers, argued that Veritas submitted a ‘skeletal’ case
and dismissed the Media Monitors report as hearsay evidence based on flawed
methodology.
They argued that Veritas
had not revealed the Media Monitors research’s methodology in the founding
affidavit thereby depriving them of a fair chance to prepare a response.
They argued that
opposition parties got their fair share of coverage and that where they did not
get coverage, it was not due to any bias or failure to execute duties on the
part of the respondents, but a result of the parties failing to submit their
programmes for airing or failing to apply and pay for advert time in terms of
the electoral regulations of 2008 (SI 33 of 2008).
Veritas later decided
to withdraw its submissions against Zec and BAZ after all parties agreed to bear
their own costs.
Zec was represented by
Tawanda Kanengoni of Nyika, Kanengoni and Partners, who represented the
electoral body against MDC Alliance leader Nelson Chamisa’s ConCourt
application challenging the results of the presidential elections last year.
In the run-up to the harmonised
elections, Veritas started legal proceeding to force the respondents “to comply
with the provisions of the Constitution of Zimbabwe relating to freedom of the
media and access to information and to respect the right to free and fair elections
by complying with the electoral law.”
In their founding
affidavit submitted to the High Court on May 31, 2018, the organisation states
that they want ZBC and Zimpapers – publishers of the Herald and Sunday Mail
among others – to accord free fair and balanced media coverage to all political
parties in accordance with the Electoral Act and the Constitution.
“Specifically, the
Applicants seek an order compelling the First and Second Respondents to ensure
that their broadcasts, reporting and other communications are impartial,
present divergent views and dissenting opinions and that their editorial
content is determined independently and an order declaring that failure to do
so constitutes a violation of section 61 (4) of the Constitution of Zimbabwe.
Additionally, the Applicants seek an order compelling the First and Second
Respondents to immediately afford all political parties and independent
candidates free access to all of their broadcasting services and for the Third
Respondent to make regulations as prescribed by section 160G(2) of the
Electoral Act to facilitate that access,” the document reads.
Veritas wanted Zec to
be ordered to disclose how it was going to monitor and ensure compliance by the
State-controlled media that were alleged to be biased in favour of Zanu PF in
the run-up to the elections.
The organisation also
wanted an order compelling ZMC and BAZ, as the regulators of print and
broadcast media respectively, to render any assistance needed by Zec to perform
the monitoring duty.
Veritas later submitted
a supplementary affidavit to buttress its case in view of the new developments and
as the elections had come and passed.
The case against ZMC
was largely based on Section 160K of the Electoral Act which states that Zec, “with
the assistance, at its request, of the Zimbabwe Media Commission established by
section 100N of the Constitution, and the Broadcasting Authority of Zimbabwe
Page 5 of 9 established by section 3 of the Broadcasting Services Act [Chapter
12:06] {No. 3 of 2001}, shall monitor the Zimbabwean news media during any
election period to ensure that political parties, candidates, broadcasters,
print publishers and journalists observe the provisions of this Part.”
