BY SILAS NKALA
Bulawayo-based journalist Zenzele Ndebele has taken Information minister Monica Mutsvangwa and the Zimbabwe Media Commission (ZMC) to court for failing to abide by the Constitution and release to the public information on public enterprises.
Zenzele, who is director of Centre for Innovation and Technology (CITE), an online news outlet, wants Mutsvangwa and the ZMC to comply with section 40(1) of the Freedom of Information Act Chapter 10:33.
Ndebele filed the application at the Bulawayo High Court citing ZMC chairman, ZMC and Mutsvangwa as respondents.
In his application, Ndebele submitted that access to information was part of the rights provided for under the Bill of Rights which came into effect in May 2013 when the new Constitution was adopted.
He said disclosure of information was important for public accountability.
“As one of the objects, the Act seeks to give effect to the right to access information in section 62 of the Constitution,” Ndebele said.
“It then sets about creating the legal framework and mechanisms for accessing information that is held by public entities, public commercial bodies, and statutory bodies.”
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Ndebele said the Act prescribed that any person who applies to such bodies to access information may do so in writing “in a prescribed manner” to an information officer in a public entity, public commercial entity or holder of the statutory office concerned.
He said the application for access to information and prosecuting an appeal in case of refusal are things that are permitted by the Act and are actually prescribed and are supposed to be in a prescribed form.
“In the absence of making such regulations providing for such processes, section 62 on the right to access to information will be rendered mitigatory. I am advised that to render mitigatory the enjoyment of such a constitutional right could not have been the intention of the law maker,” Ndebele said.
“Consequently, the commission has failed to act in line with the law by failing to enact such regulations considering that the Act was gazette in July 2020 (8 months ago). The commission was supposed to carry out this duty within a reasonable time. Failure to do so within the past eight months means the commission has failed to carry out this duty within reasonable time.”
Ndebele said even the fact that there has been lockdowns owing to the coronavirus cannot be a reasonable excuse as the State has not stopped functioning, with Parliament working, at times virtually.
“I am advised that a mandamus is thus required to get the commission to make the regulations so as to facilitate the right to the enjoyment of the constitutional right of access to information. As a journalist my work involves the need that I access information that is held by public or statutory bodies so that I can produce fully informed news items,” he said.
“This is in line with the constitutional right espoused in section 61 of the Constitution on freedom of expression and freedom of media which bestows the freedom to seek, receive and communicate ideas and other information.”
Ndebele prayed for an order for a madamus (extraordinary writ issued by a court) directing the commission to make the regulations envisaged in section 40(1) of the Freedom of Information Act [Chapter 10:33] within 45 days of the order. The respondents are yet to file opposing papers to the application.
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