ZIMBABWE INTRODUCTION This research comes more than a year after Zimbabwe enacted a new Constitution, but the government is dragging its feet in aligning legislation with the new Constitution. Despite the enactment of a progressive Constitution that guarantees freedom of expression and access to information, Zimbabweans are yet to fully enjoy these rights as government delays either repealing or reforming old laws that are inconsistent with the spirit of the new Constitution. Sections 61 and 62 of the new Constitution are more comprehensive compared to the former Lancaster House Constitution. Under the Constitution the following rights are explicitly guaranteed: 61 Freedom of expression and freedom of the media (1) Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive and communicate ideas and other information; (b) freedom of artistic expression and scientific research and creativity; and (c) academic freedom. (2) Every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists’ sources of information. (3) Broadcasting and other electronic media of communication have freedom of establishment, subject only to State licensing procedures that— (a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government or by political or commercial interests. (4) All State-owned media of communication must— (a) be free to determine independently the editorial content of their broadcasts or other communications; (b) be impartial; and (c) afford fair opportunity for the presentation of divergent views and dissenting opinions. (5) Freedom of expression and freedom of the media do not include— (a) incitement to violence; (b) advocacy of hatred or hate speech; (c) malicious injury to a person’s reputation or dignity; or (d) malicious or unwarranted breach of a person’s right to privacy. 62 Access to information (1) Every Zimbabwean citizen or permanent resident, including the Zimbabwean media, has the right of access to any information held by the State or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability. (2) Every person, including the Zimbabwean media, has the right of access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right. 120 (3) Every person has a right to the correction of information, or the deletion of untrue, erroneous or misleading information, which is held by the State or any institution or agency of the government at any level, and which relates to that person. (4) Legislation must be enacted to give effect to this right, but may restrict access to information in the interests of defence, public security or professional confidentiality, to the extent that the restriction is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. There still exists subsidiary legislation that is clearly inconsistent with these new provisions. Notable among such laws is the Official Secrets Act 1970, which makes it difficult for citizens and media to access certain information held by government and public institutions. Another law is the Public Order and Security Act 2002 (POSA), which restricts freedom of association and freedom of assembly. In addition, the preamble of the Access to Information and Protection of Privacy Act 2002 (AIPPA) states that it will provide members of the public the right to access records and information held by public bodies. It further pledges to make public bodies accountable by allowing the public the right to request the correction of misrepresented personal information. However, in effect the opposite is true, as the law takes away more than it gives. Under AIPPA, applicants seeking records or information held by a public body should request the information in writing and, in many cases, pay a fee to access the records. The head of the public body is given up to 30 days to respond. He/she is allowed to refuse to grant the requested information where it is deemed the information sought is not in the public interest. If the information involves a third party, the head of the public institution is allowed 30 more days to consult the third party before responding to the request. However, the head of a public body may also refuse a request for access to information, in which case he/she has to give the applicant reasons for such refusal. In the event the applicant feels aggrieved by the decision not to grant information, he/she may ask the Commissioner to review the public body’s decision. In essence, this constitutes a mere review process that does not guarantee access to information to the applicant. In fact, it actually makes the process of accessing information more cumbersome and complex. The process is unnecessarily bureaucratised, as it may take more than 60 days before a final decision is made on whether an applicant can have access to a record or requested information. This is one of those typical scenarios in which AIPPA begins to act as an impediment to access to information rather than foster the spirit of openness and transparency within public bodies. The process contradicts the law’s intended principle of encouraging openness and accountability in the work of public institutions. Some public officials take advantage of the beauracratic nature of this legislation to frustrate requests for public information. This legislation has disempowered junior public officials who are fearful of disclosing any information to citizens or the media.