ELECTION WATCH 20/2023

[17th August 2023]

Media Coverage of Elections

No one reading, watching or listening to our news media can be unaware that Zimbabwe is in the throes of a general election, with polling less than a week away. 

In this bulletin we shall look at how far the law regulates the conduct of news media during elections.  We shall look at the Constitution, then at the Electoral Act and its regulations, and finally at a judgment of the High Court in a case brought by Veritas in 2018.

First, though, we shall put the law in context by briefly giving reasons why it is important for the media to cover elections impartially.

Importance of Impartial Media Coverage

Free, fair and effective elections are essential if Zimbabwe is to be a multi-party representative democracy of the kind envisaged by our Constitution.  Elections cannot be fair or effective if the playing fields are not level.  In particular, State media which are funded by taxpayers  must be equitable in their coverage.  They should not be co-opted as a resources by the incumbent party.  Intimidation, violence, bribery and other abuses should be exposed and dealt with.  Voters mostly rely on news media to hear about the candidates’ proposals, and impartial reporting allows voters to hear different candidates and parties and to evaluate them fairly.  By contrast, politically polarised reporting allows voters to hear only one side, and this leads to a politically polarised electorate and ultimately to a fragmented society.

Having set out some reasons why it is important for the news media to report elections impartially, we turn to the laws that try to ensure media impartiality.

The Constitution

Two sections of the Constitution are particularly relevant to electoral coverage by the media:

• section 61, which deals with freedom of expression and freedom of the media.  Section 61(4) states that:

“All State-owned media of communications must … be impartial”.

Note that this requires State-owned media to be impartial at all times, not just during elections.

• section 155, which sets out the principles of our electoral system.  Section 155(2)(d) says that the State must take all appropriate measures to provide contestants in an election with “fair and equal access to electronic and print media, both public and private”.

The Electoral Act

The Constitution’s provisions are broad and general.  Part XXIB of the Electoral Act fills in some of the details.  The relevant sections in the Part include:

• Section 160G, which obliges public [i.e. State-controlled] broadcasters to give all political parties and candidates “such free access to their broadcasting services as may be prescribed” – i.e. as may be prescribed in regulations made under the Electoral Act.  No regulations have been made under the Act requiring public broadcasters to give free access to parties and candidates, however, and in practice such access is not given.
• Section 160H, which says that although news media are not obliged to publish political advertisements, if they do they must accept advertisements from all political parties on the same terms.
• Section 160J, which lays down rules of conduct for news media, public as well as private, during election periods:

• Their coverage of all political parties and candidates must be equitable
• Their election reporting must be factually accurate, complete and fair
• They must distinguish clearly between factual reporting and editorial comment
• They must correct inaccuracies without delay and must give parties and candidates a reasonable right to reply
• They must not promote parties or candidates that encourage violence or hatred against any Zimbabweans, and
• They must avoid language that encourages prejudice, hatred or violence or is likely to lead to “undue” public contempt towards a party or candidate.

Section 160K, which obliges ZEC to monitor the conduct of news media during an election period to ensure they comply with Part XXIB of the Act.  ZEC can call on the Zimbabwe Media Commission and the Broadcasting Authority of Zimbabwe for assistance in this.  ZEC must include a report on media conduct in its post-election report to the President, Parliament and contesting parties.

In addition to Part XXIB, there is another provision of the Electoral Act that touches on media conduct during elections.  The Fourth Schedule to the Act sets out a code of conduct for political parties, candidates and “other stakeholders”.  Paragraph 2 of the Schedule lays down principles on which the legitimacy of a democratically elected government is based.  One of those principles, set out in para 2(1)(f), is:

“that all political parties and candidates contesting an election … should be provided with fair and equal access to the electronic and print media both public and private.”

Regulations under the Electoral Act

The Zimbabwe Electoral Commission (Media Coverage of Elections) Regulations, 2008 (SI 33/2008) [link] provide that State-owned broadcasting and print media must provide equitable coverage to all political parties and candidates – and the regulations state that “equitable coverage” means fair treatment, not necessarily equal treatment.  The regulations do not require State media to give political parties free access to their services, though they limit the charges levied for political advertising to 70 per cent of the broadcasters’ normal advertising charges.  They also require air time allocated to political advertising to be allocated equitably between the parties contesting an election – and, as we have said, this means that air time must be allocated fairly though not always equally.

Veritas Court Case for Fair, Impartial State Media

In 2018 Veritas took a case in the High Court at Masvingo to compel the Zimbabwe Broadcasting Corporation and Zimbabwe Newspapers (1980) Ltd to be fair and impartial in their political reporting.  The learned Judge found that the two State media houses had not been fair or impartial in their reporting of the 2018 general election and so violated their obligations under section 61 of the Constitution.  He ordered them both:

“to exercise impartiality and independence in the editorial content of their broadcasts or other communication; and to afford fair opportunity for the presentation of divergent views and dissenting opinions by ensuring that their communications do not show bias in favour of one political party or its candidates against the others.”

The judgment remains in force and continues to be binding on ZBC and Zimpapers.

Compliance with the Law?

As we said at the beginning of this bulletin, the Zimbabwean news media, both public and private, have been persistently and at times outrageously partisan in their coverage of this year’s election.  For the public news media this partisanship is an obvious violation of the law, in particular section 61(4) of the Constitution and section 160J of the Electoral Act, but the private media are also required to be fair and accurate.  They too have violated the law.

There are other violations as well:

• Parties and candidates have not been provided with equal access to the media, both public and private, as required by the Constitution and the Electoral Act.  Although the Electoral regulations which we mentioned above say that access need only be equitable, i.e. fair, rather than equal, section 155 of the Constitution and para 2(1)(f) of the Fourth Schedule to the Electoral Act say that access must be both fair and equal.
• Parties and candidates have not been allowed free air time by public broadcasters to give political party broadcasts.  Although section 160G of the Electoral Act does not say so expressly, it implies that all parties and candidates contesting an election must be given some free air time, the amount to be prescribed in regulations – which means that even though no regulations have been made, the public broadcasters should have given parties at least some free air time to address the electorate.
• ZEC has not set up a committee to monitor media coverage of the election, as it is obliged to do by section 160K of the Electoral Act.  If the committee had been set up and its findings published on a weekly basis, media partisanship might have been more restrained and some of the worst excesses avoided.

Conclusion

It is appropriate to conclude with the wise words of Mafusire J in the Veritas case we mentioned above:

“The respondents [i.e. the public media] are all critical players in any plebiscite.  By the powers reposed and vested in them by law and social contract, they can individually or collectively make or break an election.  They can make or break a nation.  They can foster democracy or stifle it.  The framers of our Constitution and our Parliament were quite conscious of the need … to safeguard multi-party democracy and combat one-party State governance.  That is why there exist such provisions in the Constitution and [the Electoral Act] as will guarantee press freedom, impartial reporting and equal access of all political parties to the public press.”

To put it briefly and bleakly:  by ignoring those provisions the media will stifle democracy and break the nation.