Last week, the Constitutional Court of Zimbabwe passed an important judgment in which it approved of the constitutionality of the law authorising the ZBC, the public broadcaster, to fix and collect a licence fee from members of the public in possession of equipment which receives broadcasting services.
The facts of the matter were quite simple. Two applicants, in separate cases, Bernard Wekare and Musangano Lodge refused pay the licence fee to the ZBC. They were brought to court to answer criminal charges under the Broadcasting Services Act [Cap. 12:06] for failing to pay the licence fee.
When they appeared before the court they each raised the question of constitutionality, arguing that the provisions under which they were being charged were in contravention of the Constitution. They raised a number of grounds to challenge the constitutional validity of the relevant provisions.
As this happened in 2012, before the new Constitution was adopted in 2013, the matter was decided in accordance with the old Constitution. When they raised the constitutional points, the magistrate in each case referred the matter to the Constitutional Court for a determination of the constitutional issues.
Most citizens are not aware that when they are charged with an offence or they have been mistreated by police while in custody, they are entitled to raise the issue with the magistrate and where appropriate, to challenge the constitutional validity of the law or police conduct and to ask for the matter to be referred to the Constitutional Court. The Magistrate must give careful consideration to such requests for referrals. This is what Wekare and Musangano Lodge did in these two cases. When the cases came before the Constitutional Court, they were heard together since they raised the same constitutional issues.
However, the Constitutional Court last week dismissed the applicants’ arguments and found that the provisions giving power to the ZBC to fix and collect the licence fee were constitutional. It is notable and unfortunate that this matter took 4 years to conclude. One of the reasons why a separate Constitutional Court was created was that the handling of constitutional matters would be expedited and more efficient. Yet to take 4 years to conclude a matter suggests that little has changed. It is hard for the highest court in the land to criticise lower courts for the slow pace of justice delivery when it is setting a poor example in that regard. The purpose of this article is to analyse this decision and highlight lessons that can be drawn from it.
The legal framework of the licence fee
The licence fee is charged in terms of the Broadcasting Services Act. Section 38B(1) states that any listener in possession of a receiver who is not exempted must have a licence issued by the ZBC. Section 38B(2) imposes an obligation on a person who is in possession of a receiver to pay a licence fee, which is fixed by the ZBC. As will be explained later, these provisions are wide enough to cover any person who holds a smartphone, because such a device can be regarded as a device which is capable of receiving broadcasting services.
The licence fee is collected by the ZBC or its appointed agents and the money collected is paid into the general funds of the ZBC, which it then uses to fund its legal function of providing public broadcasting services. Thus, in essence, as the Court stated, the purpose of the provisions is to establish an independent funding mechanism for the legal mandate of the ZBC to provide public broadcasting services. The theory behind all this, according to the Court is to provide a public funding mechanism which is supposed to liberate the ZBC from government interference or corporate and other powerful interests.
Indeed, the relevant legislation provides that the object is to regulate broadcasting services in order to promote public broadcasting services in the interest of the public and to ensure the independence, impartiality and viability of public broadcasting services. This what the ZBC should be, although in practice its character and conduct are completely different, but this will be discussed later.
The challenge against the ZBC licence fee by the applicants was based on three principal grounds, namely that it was a breach of:
- the right to protection from compulsory deprivation of property (s.16(1))
- the right to the protection of the law (s.18(1))and
- the right to freedom of expression (s.20(1))
I shall deal with each of these grounds in succession.
Protection of private property
The applicants were arguing that the provision which allows the ZBC to set and collect the licence fee amounted to compulsory acquisition of private property. The ZBC was arguing, in turn, that the licence fee is actually tax which is lawfully charged in terms of a law made by Parliament.
Is the licence fee a tax?
Section 16 of the former Constitution protected private property from compulsory deprivation, unless the deprivation fell into one of the permitted exceptions. In this case, the argument for the ZBC was that the deprivation of private property to pay the licence fee was one of the permissible exceptions on the basis that the licence fee was a lawful tax. Section 16(7)(a) of the Constitution allowed the acquisition of private property under the authority of a provision of a law enacted by the State in the exercise of the constitutional power of taxation. The argument was that Parliament had a wide discretion to make such taxation laws.
The Court upheld the ZBC’s argument, holding that it was not the ZBC but Parliament which was imposing a tax, using its wide constitutional mandate to impose taxes. “There is no denying the general power of the Legislature to impose taxes,” the Court stated. “The Legislature, with full power over the subject of taxation, short of arbitrary and unreasonable action which is not to be assumed, inserted these provisions on payment of the revenue into the general funds operated by the ZBC in an Act specifically providing for the raising of revenue,” the Court added.
According to the Court, it was not the ZBC but Parliament which was imposing the licence fee. The ZBC was merely an agent of Parliament, acting on the basis of delegated authority. In setting and collecting the licence fee, the ZBC was not exercising a right but acting under an obligation imposed by Parliament. As stated by the Court, “When the ZBC and its appointed agents demand, in appropriate circumstances, production of a listener’s licence from a citizen, they are discharging a legal obligation”.
In addition, the fact that it was called a licence fee did not mean that it is not a tax. The Court stated:
“An obligation of the same cannot be excluded from proper classification because of the name by which it is called. In other words the fact that the fixed amount of money compulsorily payable by members of the public who possess receivers is called a “licence fee” would not alter the fact of its being a “tax”. The term “licence fee” is not a definition but is a conclusion. It is a label describing a debt imposed on a person by a statute in respect of an activity in relation to property”
In this regard, one can think of other similar taxes that people pay on a daily basis. One common example is the toll-gate fee. It might not be called a tax, but that is precisely what it is. Another is the fee that users of mobile money systems pay in each transaction. It is collected by mobile phone companies on behalf of the state and it is still a tax. It does not matter who is collecting it, as long as they are authorised under a law lawfully made by Parliament. The Court was right to reach the conclusion that it is a tax but whether or not it is a reasonable and lawful tax is another question altogether.
Tax laws can be challenged
One of the key observations made by the Court was that although Parliament has a wide discretion to impose taxes, the validity of tax laws must still be scrutinised against the standard of fundamental right in the Constitution. The Court accepted that the power to tax “must be strictly scrutinized to protect the right to [private] property. The provisions must be construed with the view of giving a full measure of protection to the fundamental human right alleged to be infringed. It is also a well settled rule that the citizen is exempt from taxation unless the same is imposed by clear and unequivocal language. Where the construction of a tax law is doubtful, the doubt is to be resolved in favour of those upon whom the tax is sought to be laid”. Chances of success may be slim, given Parliament’s wide discretion in tax matters, but there is room to make a challenge.
Therefore, although the main question was settled against the applicants, the Court made an important point here which is that laws or measures imposing taxes are not immune from scrutiny to ensure compliance with the Declaration of Rights. Critically, where the law or measure is doubtful or ambiguous, it has to be settled in favour of the individual and against taxing authority. Tax laws must be clear and unequivocal and if they are not, they can be challenged. This is an important point which citizens must bear in mind, and can make use of when faced with unreasonable, vague and ambiguous tax measures.
Unfair advantage?
The argument by the applicants that the ZBC was a private company formed under the Companies Act was dismissed by the Court. The applicants had argued that the licence fee gave an unfair advantage to the ZBC over other competitors. According to the Court however, the ZBC is a public broadcaster. According to the Court, “There is no doubt that the ZBC is a “public broadcaster” incorporated to carry out the functions of providing public broadcasting services”. The Court viewed its formation under the Companies Act as a way of promoting the ZBC’s institutional independence from the government.
The applicants had a good argument about ZBC’s unfair advantage over its competitors, although this contention would have had more weight before competition tribunal than the Constitutional Court. The fact that the licence fee monopoly gave the ZBC an unfair advantage may be uncompetitive, but it does not necessarily make it unconstitutional.
However, there is a good case to made before the Competition Commission against ZBC’s uncompetitive behaviour. The ZBC sets and collects the licence fee, which it uses to fund its operations. No other broadcaster has access to that revenue. The ZBC has a monopoly. Yet the ZBC also competes with other broadcasters in the commercial advertising market. In some ways, the ZBC is double-dipping, drawing revenue from the public, while at the same time competing with commercial broadcasters in the advertising market. This is, arguably, unfair market behaviour. It can’t be fair competition. It’s a relic from the previous regime where there was only one broadcaster. However, with new entrants into the broadcasting sector, this needs to be reviewed.
If the ZBC wants to compete with commercial broadcasters in the advertising market, then it must give up its monopoly on the licence fee. Instead, the revenue collected through the licence fee must be shared by all broadcasters. The Court made reference to the BBC in the UK as a comparable public broadcasting institution which is funded by the licence fee. There may be some similarities in their formal roles but one key difference is that the BBC does not compete with commercial broadcasters in the market of commercial advertising. This is fair. The BBC would not maintain its monopoly over the licence fee if it also dipped into the commercial advertising market.
There is need to review the broadcasting market in Zimbabwe – the collection of the licence fee, its usage and how broadcasters compete in the commercial advertising market.
Does the ZBC act in the public interest?
One of the points addressed at length by the Court in its judgment was that the ZBC was a public broadcaster and, in doing so, the Court tried to distinguish it from a State broadcaster. The applicants had argued that the ZBC was in the habit of misusing the licence fee and that this misuse invalidated the constitutionality of the law which authorised the licence fee. The question then was whether misuse of funds that are lawfully set and collected invalidate the law’s constitutionality?
The Court rejected this argument, stating that misuse of funds by the ZBC does not diminish the constitutionality of provisions authorising the collection of the licence fee. The Court stated, “The use of public funds is not an issue in an action for a declaration on the constitutional validity of a statute. A law cannot be declared invalid simply because it is misused.”
The Court had a valid point. The applicants had raised an important point, but once again this was not the appropriate case for it. Their argument, which was at the core of their refusal to pay the licence fee was that the ZBC was biased and they did not use the service and therefore saw no need to pay for it. This indeed, is a common argument held by many listeners and viewers against the quality of ZBC’s services. The issue here is not whether this affects the constitutionality of laws authorising the licence but there is good ground for legal action for a declaration that by virtue of its bias and partisanship, the ZBC is violating constitutional rights and its constitutional obligations. This type of action, has sufficient backing in terms of the Constitution, the Broadcasting Services Act and the Electoral Act.
While the Court was at pains to emphasise the character of the ZBC as a public broadcaster and not a state broadcaster, the theoretical position which the judge articulated is at odds with the reality of the ZBC as a highly partisan and biased institution which openly favours the ruling party, ZANU PF at the expense of other parties. This much is common cause. Of course, it may be said that the learned judge was trying hard to give a lecture to the ZBC on its proper role as a public broadcaster, which is supposed to be non-partisan, impartial and fair – a point discussed later in this piece.
Incredibly, the judge described the ZBC not as a “state broadcaster” but as a “public broadcaster”. However, it may be said that the learned judge was focusing too much on form rather than substance, because the ZBC is to all intents and purposes a state broadcaster or at least, behaves as such. In any event, peeping behind the veil of incorporation, the state is the beneficial owner of the ZBC. State control over the ZBC is not different from its control over Zimpapers (Pvt) Ltd, a listed company, in which the state is the majority shareholder. The fact that the form of these entities is that of private companies does not obscure the fact that they are state-controlled entities.
Nevertheless, the one positive that might be taken from the judge’s reasoning is that if a case were to come before his court, with the argument that the ZBC was acting contrary to its role as a public broadcaster and rather as a state broadcaster or as a biased ruling party mouthpiece, he would probably uphold that application if sufficient evidence is presented to him. In this regard, section 61 new Constitution contains important provisions relating to the independence and impartiality of state-owned media of which the ZBC is one such entity. It states as follows in section 61(4):
“All State-owned media of communication must—
- be free to determine independently the editorial content of their broadcasts or other communications;
- be impartial; and
- afford fair opportunity for the presentation of divergent views and dissenting opinions”.
Similar provisions are to be found in relation to the role of the media during elections where the state is required in section 155(2)(c.) “to ensure that all political parties and candidates contesting an election or participating in a referendum with fair and equal access to electronic and print media, both public and private”. The Electoral Act contains similar provisions as does the Broadcasting Services Act. There is no reason why legal action can’t be taken to demonstrate that the ZBC is in breach of its constitutional obligations and to compel it to fulfil its legal mandate. As the learned judge advised in the Wekare case, where a public broadcaster is misusing public funds (and failing to meet its legal mandate), “the appropriate remedy would be a mandamus compelling the authority administering the public funds to utilize them for their intended purpose”.
Was it reasonably justifiable in a democratic society?
The Court was satisfied that the licence fee was a lawful tax which Parliament had the power to impose through the delegated authority of the ZBC. The applicants could have argued against it on the grounds that it was not reasonably justifiable in a democratic society. Instead they only argued that it was an unlawful compulsory acquisition of property. Having lost this argument and without an alternative argument that the tax was not reasonably justifiable in a democratic society, the Court quite easily dismissed their argument. It is not clear why the applicants did not pursue the argument that the licence fee was not reasonably justifiable in a democratic society, but it could be that they realised the futility of that line of argument given that the licence fee is not unique to Zimbabwe but is to be found in other, perhaps even more democratic states such as South Africa and the UK.
Protection of the law
The applicants had two other arguments, the first of which was that the imposition of the licence fee was a violation of their right to protection of the law under section 18(1) of the former Constitution. That provision, which is now section 56(1) of the new Constitution, gives protection to every person against a legislative measure which does not meet the requirements of legality. As the Court stated, it also protects individuals against an unfair legal system. However, the argument that the provisions were too broad and violated the principle of legality was dismissed by the Court.
So who is covered by the requirement for a licence fee?
The Court held that the language of the statute is clear that it covers all persons who have equipment that is capable of receiving broadcasting service. This includes owners of smart-phones or other tablets that are capable of receiving broadcasting services. The Court stated that the law covers all:
“persons who possess equipment appropriate for receiving broadcasting service. There are two types of broadcasting, television and radio broadcasting. Section 2(1) of the Act is wide enough to bring under the definition of broadcasting service any equipment capable of receiving television or radio programmes broadcast. In other words the gadget does not have to be a television set or a radio set. It can be a smart-phone, for example, provided it is capable of receiving television or radio programmes as they are being broadcast. Television or radio programmes do not necessarily have to be received by a television or a radio set”.
This means the coverage of the law is very broad and all-encompassing. Anyone with a smartphone is potentially liable to pay a licence fee. While the Court acknowledged that in practice, the ZBC has focussed more on those with radio and television sets only, this did not mean their power was vague, limited or unconstitutional. In this regard, the Court stated:
“The fact that the ZBC has, in practice, demanded payment of licence fees from persons who possess television sets or radio sets only, does not mean that the provisions of the Act on what is a receiver are unconstitutionally vague. The law was obviously drafted with effects of changes brought about by technological development in mind. There was no suggestion that the decision by the ZBC to demand payments of licence fees in respect of possession of television sets and radio sets only was a result of vagueness and ambiguities in the language of the statute.”
The implication of this decision is that it has confirmed an avenue for the ZBC to increase its revenue base. The ZBC may have focussed on owners of radio and television sets only in the past, but this confirmation that its power is broad could spur a new and more aggressive phase of collecting licence fees from owners of smartphones and other gadgets. People should brace themselves for that possibility. In this regard, it is up to citizens to challenge the scope of the legislation by lobbying their MPs for an amendment to restrict it or for the exemption of smartphones.
Payment of licence fee on the spot?
One point which emerged from the judgment which citizens may not be aware of is that there is no immediate requirement to produce a licence on the spot when stopped by licence fee inspectors. As the Court stated, “A person who fails to produce a television or radio licence at a designated office within seven days of written notice to do so must be brought before a court where he or she is afforded an opportunity to defend his or her conduct”. In other words, when one gets a written notice, he or she has 7 days within which to produce a licence. When an inspector stops a citizen at a roadblock demanding to see a licence, he or she may only issue a notice to produce the licence within 7 days, failing with one may be brought to court. The key point here is that licence inspectors at road-blocks are not judicial officers. They have no powers to exact spot fines or penalties or licence fees from motorists. They can only issue notices and if a person wants to pay he or she can do within the 7 day window. If they are acting under any regulations, those regulations are unconstitutional.
A violation of freedom of expression?
The final argument made by the applicants was that the requirement of a licence fee and criminalisation of failing to produce a licence was a violation of freedom of expression. In this particular case, the Court found that while the restriction on the right to possess a “receiver” without a listener’s licence was a restriction on the freedom of expression, the applicants had failed to demonstrate that it was not reasonably justifiable in a democratic society. The onus to prove this was on the applicants but they had failed to discharge it.
The Court found there was a connection between freedom of expression and public broadcasting and reasoned that a public broadcaster was an important medium for promoting freedom of expression. The Court stated:
“…. public broadcasting service is a vital element of modern democratic societies. Public broadcasting service models were developed to remedy weaknesses inherent in the other broadcasting service systems namely State controlled broadcasting service and profit oriented commercial models. A State controlled broadcaster’s programming is essentially driven by the political interests, while commercial broadcasters are driven by commercial interests. The programming of a public broadcaster is required to be driven by the public interest.”
However, with respect, the Court’s reasoning was too theoretical and divorced from the reality of the ZBC as a highly biased and partisan public broadcaster. What the just described as a state broadcaster is precisely what the ZBC does. Indeed, an argument could be made that due to the bias and partisan nature of its services, the ZBC limits, rather than promotes freedom of expression. Yet the judge viewed the ZBC as an agent to promote freedom of expression. The Court stated, “In ensuring that broadcasting services reach as many people as possible who also would want to enjoy the right to receive and impart ideas or information, the ZBC is promoting freedom of expression. Provision of public broadcasting service is by its nature intended to reach the poor, marginalized and illiterate sections of society. The method of funding and the objectives prescribed for the corporation as a public broadcaster are influenced by the considerations of the right to freedom of expression”.
This is what the ZBC should be doing, but its bias and partisanship detracts from its mandate to promote freedom of expression. It could be that there was insufficient factual evidence before the Court to demonstrate the bias and partisan character of the ZBC and why it is a hindrance rather than a facilitator of freedom of expression. The Court was right, of course, in that it is not the licence fee that makes the ZBC violate freedom of expression, but as already pointed out a separate action can be made to argue that by its conduct the ZBC violates freedom of expression and to compel it to comply with its constitutional obligations. This was probably not the right case for it as this was merely challenging the legality of the licence fee. However, a good case can be made to demonstrate that the ZBC routinely contravenes the Constitution.
Judge lectures the ZBC
What is evident, however, as pointed out earlier is that the Court was probably using this case to give a lecture to the ZBC on its public mandate. This lecture to the ZBC has been missing from the media narratives on the judgment but it is important.
“A public broadcasting service is a national asset that must be independent of both political and commercial pressures in the performance of its mandate. In its ownership, funding and programming the concept of “public” has always defined the logical boundary of any public broadcasting service organization. As a public sphere essential for a well-functioning democracy, public broadcasting service is of the public, for the public and by the public. In other words public broadcasting service belongs to the entire community, not to the abstraction known as the State nor to the government in office nor its political party”.
Speaking directly to the ZBC, the learned judge stated,
“When the ZBC as a public broadcaster speaks it should not be government speaking. The right to freedom of expression does not extend to protecting government from itself … The ZBC is not permitted but required to exercise independent editorial discretion and judgment in the performance of the functions necessary for the fulfilment of its journalistic purpose and statutory obligations”.
The judge went to great lengths to talk about the importance of having financial and editorial independence at the ZBC, pointing out that political interference would be a handicap on its effectiveness in delivering a service in the public interest. As the judge stated, “The existence of provisions which underpin the presence of editorial discretion in the public broadcasting service system gives rise to a presumption against State involvement in the programming decisions of the ZBC. In fact governmental involvement in decisions as to which programmes to broadcast would be incompatible with or antithetical to the editorial discretion vested in the ZBC by the statute.”
The judge also acknowledged the gravity of the complaints brought by the applicants and that the ZBC had to take them seriously. The judge’s comments focussed on the need for accountability by the ZBC. He stated:
“The grounds of the complaints were that the programmes broadcast by the ZBC tended to be monotonous and of poor quality. The applicants also complained that there is no transparency and accountability in the way the ZBC uses the funds it gets from the public. These are concerns which the ZBC must welcome and take seriously.
There is nothing wrong in the public telling the ZBC what they think about the quality of its services to help it police its own conduct. In that way the ZBC would have a close relationship with its audience treating the public as “owners” of the broadcasting service rather than licence fee payers.
The ZBC as a public broadcaster cannot work in a culture which is that it does what it likes without having to be accountable. The applicants, like all tax payers, have a right to know how their money is spent.”
These were very strong words for the public broadcaster from the highest court in Zimbabwe. In light of the judge’s comments, there is good room to bring further constitutional litigation against the ZBC, not necessarily to challenge its power to collect the licence fee, but to challenge the constitutionality of its conduct. The political bias and partisan character of the ZBC is legendary. It openly favours President Mugabe and ZANU PF, at the expense of other political parties. This is the case whether or not its election season. There is a good case to be made that the ZBC is violating section 61 of the Constitution, both its obligations as a state-owned broadcaster and in the general enjoyment of freedom of expression.
Additionally, as pointed out earlier, there is a case to be made against the uncompetitive behaviour of the ZBC, which benefits from the licence fee over which it has a monopoly but still competes with private broadcasters for commercial advertising. This is unfair competition and private broadcasters are perfectly entitled to challenge its uncompetitive behaviour. The only problem perhaps is that most of the existing private broadcasters may be too compromised and too frightened to challenge the ZBC’s uncompetitive behaviour.
Conclusion
This was an important case. I did not think challenging the collection of the licence fee was ever going to succeed, but it was a brave effort. Litigation such as this is in the public interest as it helps to highlight important issues. This case has brought not just the legality of the licence fee under scrutiny, but also the dismal performance of the ZBC as a public broadcaster. Unfortunately, the media focussed only on the fact that the ZBC had been permitted to continue taking the licence fee. That is true but reading the full judgment demonstrates that the Court raised even more fundamental issues which have not received the same kind of attention.
I do not believe the case sets the ZBC off the hook. Rather, I believe there is room for stronger cases in future to bring the ZBC into constitutional compliance. Deputy Chief Justice Malaba, who wrote the judgment, set out a very clear case of how a public broadcaster must behave in a constitutional democracy, much of which is the antithesis of how the ZBC actually conducts its business. The judge would have been alive to the obvious contradictions between the ideal public broadcaster which he described and the reality of ZBC’s performance.
There is room to go back to those judges with evidence that the ZBC is not behaving like the public broadcaster that they described so eloquently and that its conduct is in breach of fundamental rights and obligations under section 61 of the Constitution. It will be hard for the Court to rule that the ZBC’s conduct is constitutional.
waMagaisa
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