This assignment will discuss the right to access the media and the right to freedom of

information. It will first define and explain what freedom of information is and then it will
further discuss the right to access the media and the right to freedom of information in
reference to the 2016 general elections, especially during the election campaign and will
end with a conclusion.

Article 19 of the Universal Declaration of Human Rights (UDHR)1, binding on all member
states that have ratified and domesticated this, guarantees the right to freedom of
information when it defines freedom of information as the freedom to seek, receive and
impart information and ideas through any media and regardless of frontiers. Additionally,
a Dictionary of Media and Communication2 defines freedom of information as a basic
right to have access to information of all kinds, from the type held by governments to that
held by media organisations.

To push the argument further, UNESCO3 defines freedom of information (FOI) as the
right to access information held by public bodies. The General Assembly of the United
Nations during its first session in 1946, unanimously resolved that Freedom of
information is a fundamental human right and is the touchstone of all the freedoms to
which the United Nations is consecrated. It is a fundamental right of every citizen to
access information held by state bodies as this is incorporated in the freedom of
expression and information. This freedom of expression and information comes with an
obligation on the part of the state to refrain from actions which might obstruct it. It is the
states obligation too to provide for the access to information by way of legislation.

The right to freedom of information will not be sustained for as long as there is no piece
of legislation supporting it. This has been one of the major drawback to the right to access
information. There are currently no laws that specifically promote and protect the freedom
of information in Zambia. In view of this, it is awfully difficult for both media personnel and

1 Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948.
2 Marcel Danesi, Dictionary of Media and Communications (M. E. Sharpe, Inc., 2009 London).
3 Communication and Information http://www.unesco.org/new/en/communication-and-information/freedom-

of-expression/freedom-of-information/ accessed 6 April 2017.

the public to access important information that is of interest to the public. 4 Evan5 argues
that freedom of information and specifically access to information held by public
authorities, is a fundamental element to the proper functioning of a democracy. It is clear
that democracy cannot be fully enjoyed in a state without freedom of information. Zambia
does not yet have a Freedom of Information Act. It is now over fourteen years since media
lobby groups started advocating for the enactment of this piece of legislation. Freedom of
information is essential for every country that has media institutions because it helps to
convey important information to the public.

Article IV (1) of the Universal Declaration of Human Rights states that:

Public bodies hold information not for themselves but as custodians of the
public good and everyone has a right to access this information, subject
only to clearly defined rules established by law.

Freedom of information is generally understood to convey the notion that there is a right
to access information held by the government. Freedom of information helps to convey
important information to the public.

Right to Access the Media and Right to Freedom of Information in a Democracy

Freedom of information is an intrinsic component of a proper functioning of a modern

representative government. Freedom of information fosters the notion of deliberative and
participatory democracy.6 When the government practices an open door policy, it will be
easier for the public to scrutinize it and be accountable to its own citizens. Along with
adequate information, there will be high levels of public participation in the governance of
a nation. For a proper and effective functioning of a healthy democracy, access to
information is a prerequisite. To cement this is the fact that voting in the referendum and
enhancement of the bill of rights did not yield much due to the failure by the media

4 Matibini P, The Struggle for Media Law Reforms in Zambia, (2010) Lusaka: Misa.
5 Evan R, Media Law and Practice in Southern Africa, Lancaster House, 33 Islington High Street London
N1 9LH, United Kingdom.
6 Mason A, The relationship between freedom of expression and freedom of information in Beatson J and

Cripps Y (eds) Freedom of expression and freedom of information. (2009) Oxford, Oxford University
Press.

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especially to educate the voters on the importance of that piece of legislation. The voters
lacked access to information and so could not make informed decisions.

President Johnson7 once posited that:

... A democracy works best when the people have all the information that
the security of the nation permits. No one should be able to pull the curtains
of secrecy around decisions which can be revealed without injury to the
public interest.

It is said that governments represent public rather than private interests and that different
considerations apply to documents produced by government than those which apply to
individuals and private organisations.8 The 1976 Crossman Diaries case clarified the
legal principles where Lord Widgery CJ said that material would be protected only if public
interest in the publication being restrained outweighed public interest in its publication. 9
The decision was followed in Australia in Commonwealth v John Fairfax & Sons10
where Mason J said:

It is unacceptable, in our democratic society, that there should be a restraint

on the publication of information relating to government when the only vice
of the information is that it enables the public to discuss, review and criticize
government action ... Unless disclosure is likely to injure the public interest,
[the information] will not be reported.

In July of 2015, Fred Mmembe together with his reporter, Mukosha Funga, were arrested
on an allegation that the duo disclosed classified documents which accusation they
denied. Particulars of the matter were that on 17th April 2015, Fred Mmembe and
Mukosha Funga while jointly and acting together published a letter purportedly written by
Anti-Corruption Commission (ACC) director general, Rosewin Wandi to President Edgar
Lungu, informing him that the ACC wanted to commence investigations on his political

7 Statement by President Lyndon Johnson of the USA when he signed the Freedom of Information Act in
1966.
8 RP Meagher, MWC Gummow and JRF Lehane, Equity: Doctrines and Remedies (3rd edn, Butterworths,

Sydney, 1992) at 883.

9 Attorney General (UK) v Jonathan Cape [1976] QB 752 at 770.
10 [1980] 147 CLR 39.

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adviser, Kaizer Zulu.11 Now, this is information that concerned the public and its
publication meant to spark a debate or review amongst members of the public. The duo
were arrested on the premise that they disseminated classified information contrary to
section 5(1) of the State Security Act12, which states that:

Any person who communicates any classified matter to any person other
than the person to whom he is authorized to communicate it or to whom it
is in the interest of the Republic his duty to communicate it, shall be guilty
of an offence and liable on conviction to imprisonment for a term of not less
than fifteen years but not exceeding twenty-five years.

This and other pieces of legislation stifle access to information from public bodies and are
inimical to freedom of information as is enshrined in the Universal Declaration of Human
Rights.13 Although the African Charter on Human and Peoples Rights does not explicitly
guarantee the right to access information, it nevertheless, protects the right to receive
information.

The Media plays a critical role in the development process of any country, more so in a
modern functioning democracy. Without information, citizens are unable to exercise their
rights and responsibilities effectively. The Constitution of Zambia14 in article provides for
access to the media for a political party and a candidate contesting an election especially
so during election campaigns. Furthermore, the Constitution in article 20 guarantees the
freedom of expression when it states:

Except with his own consent, a person shall not be hindered in the
enjoyment of his freedom of expression, that is to say, freedom to hold
opinions without interference, freedom to impart and communicate ideas
and information without interference, whether the communication be to the
public generally or to any person or class of persons and freedom from
interference with his correspondence.

11 Policy Brief on Media Law and Policy in Zambia, MISA Zambia.

12 Chapter 111 of the Laws of Zambia.
13 Universal Declaration of Human Rights, United Nations, 1948.
14 Constitution of Zambia, Amendment Act No. 2, 2016, Chapter 1 of the Laws of Zambia.

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This provision will be discussed in the light of the 2016 general election media coverage.
American president, James Madison15 stated that:

A popular government, without popular information or the means of

acquiring it is but a farce or a tragedy; or, perhaps both. Knowledge will
forever govern ignorance. And a people who mean to be their own
governors must arm themselves with the power which knowledge gives.

Knowledge or information in a democratic society is the lifeblood on any state, for without
it the citizenry cannot participate fully in the decision making that affects them. The media
play a vital role during the democratic processes by educating voters and political parties
about major issues. By so doing it gives the voters and political parties access to
information in order that they can make informed decisions. Pursuant to article 50 of the
Constitution, political parties and individuals have a right to access the media during
election campaigns in order to sell themselves to the masses and inform them of what
their candidate and the party are offering. Unfortunately, for the 2016 general elections,
the political playing field was unequal. In Zambia the media has become a source of
contention pre and during elections. Other political parties but the incumbent party were
denied a right to access the media as is guaranteed by the Constitution. There should be
an enabling legislation and regulation to give effect to Article 50 of the Constitution. The
article does not specify how the various political parties can have access to the public
media especially the electronic. Usually, the ruling party abuses the public media to serve
the interest of the incumbent. There should be a clear mechanism in place showing
whether political parties will have free or paid for access to both public electronic and print
media during election campaigns. That way, there will be no hegemony such as the one
exuded by the ruling party and its candidate. The media does play a vital role in any
elections. It helps candidates communicate their message to the voters. Public media in
Zambia is owned and controlled by the government and pre during and after the elections
it is still controlled by the government and political party in power. The public print and

15 Chapter 18, Document 35, 1822.

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electronic media has largely been partial and not independent of government while the
private print and electronic media has always been threatened with closures.

One of the most significant challenges to opposition parties during the pre-election period
was the lack of equitable coverage by and access to public media. Public media outlets,
both print and electronic, strongly favoured the incumbent and his party in their coverage.
United Party for National Development, hereinafter the UPND, alleged that the party faced
significant hurdles in accessing public media for various programs and paid for political
advertisements.16 As a result of this, the UPND sought legal redress in the court of law
citing abrogation of section 29 of the Electoral Process Act,17 subsections (1) and (2).
They sued Zambia National Broadcasting Corporation (ZNBC) for failing to cover the
rallies of its presidential candidate, Hakainde Hichilema. On August 9, 2016, ZNBC was
ordered by the High Court to air a documentary on Hichilema before the close of the
campaign period. However, this was way too late in the campaign for it to have any
measurable effect on his candidacy. Media Institute of Southern Africa too commenced
legal action against ZNBC regarding its bias in political coverage. The matter was not
resolved before election day.

Furthermore, the European Electoral Observer Mission (EUEOM) noticed that the
electoral campaign was marred by systematic bias in state media, which failed to provide
fair and equitable coverage of the campaigns of opposition political parties, and by
restriction on or stifling of private media, to wit, The Post.18 The EUEOM recommended
a complete overhaul of ZNBC into a public service broadcaster with full editorial autonomy
from the government and enhanced oversight of the ECZ of the public media. The report
recommended that:

ZNBC should be transformed into a public service broadcaster enjoying full

editorial independence from government. Protection of tenure of the board
of directors and senior management should be guaranteed, who should be
appointed in a transparent manner, with the involvement of media

16 EUEOM Final Report on 2016 Zambia General Elections and Referendum, August 2016.
17 The Electoral Process Act No. 35 of 2016.
18 EUEOM Final Report on 2016 Zambia General Elections and Referendum, August 2016.

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 professionals and civil society organisations. News and content
management staff should also be appointed in a manner protected from
political interference and be subject to public interest rules.

The ruling Patriotic Front (PF) party, led by President Edgar Lungu actively worked to
deny media coverage to the opposition. They vowed that no form of media should be
given to the UPND in the form of news or campaign advertisements and that massive
efforts should be made to eliminate coverage of UPND campaigns and their presidential
candidate, Hakainde Hichilema.19 The period before and after the August 2016 general
elections has arguably been the most turbulent period in the history of the media in
Zambia in terms of state interference and outright violations against the medias
independence and freedom to conduct itself in a safe and favorable environment. This
has been largely due to the unprecedented heavy handedness by the state that saw the
suspension of licences at once for three broadcast stations by the Independent
Broadcasting Authority (IBA). The stations in question are Muvi Television Limited
Company, Komboni Radio of Lusaka district as well as Itezhi-tezhi Community Radio
Station of Central Province. All this happened against the backdrop of the raid against the
Post Newspaper by the Zambia Revenue Authority for alleged tax non-compliance by the
firm which has seen the newspaper liquidated. Freedom of information and access to
media has become even more elusive now.

Curran20 proffers that the right to access the media can be enhanced by freedom of
information on government bodies and public institutions. Sadly, freedom of information
bill has often been met with resistance by authorities. A bill for freedom of information was
first submitted to parliament in 2002 to give the people the right to access information
from both government and public agencies. The bill could not be passed successfully
despite receiving some overwhelming support during the second reading. However,
government withdrew the piece of legislation attributing the reason for doing so to the
countrys security. Since there is no freedom of information legislation in place, it is difficult
for anyone to access information. Furthermore, there is no legislation that protects

19 https://ipi.media/zambia-shutters-the-post-newspaper-ahead-of-elections/
20 Curran J, Media and power, London Routledge.

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confidential sources of information and whistle blowers. Publication of leaked government
information is prohibited.21 The legal and political landscape makes it difficult to know how
far a media house can go in digging for information and dispersing it. 22 Lack of freedom
of information law in the country has impacted access to information and media
personnels role in a democracy negatively. On the other hand, this has exposed media
personnel to arbitrary arrests and intimidation. To buttress it all, journalist and media
personnel have been harassed by the very public figures who should be protecting them,
flouting the Electoral Code of Conduct, section 3 (g). A case in point is one in which a
Patriotic Front official, Michael Tembo, was convicted on 21 June, 2016 for assaulting two
journalists. He was fined on two counts of assaulting by occasioning actual bodily harm
on Peter Sukwa, a was a correspondent with the Post Newspaper and one Kelvin Phiri a
Feel Free FM station radio journalist.23

There are however, principles that should guide the legislation of freedom of information.
Article 19 of the UDHR has published a set of these principles, The Publics Right To
Know: Principles on Freedom of Information Legislation. A key guiding principle central
to the right to information is the principle of maximum disclosure. The Principle of
maximum disclosure emanates from primary guarantees of the right to information and
sums up the fundamental meaning of the right to information. It therefore, implies that the
scope of the right to information should be broad as concerns the range of information
and bodies covered, as well as individuals who may claim the right. The Joint Declaration
of the special mandates on freedom of expression contains a strong and explicit
statement on maximum disclosure:

The right to access information held by public authorities is a fundament

human right which should be given effect at the national level through
comprehensive legislation (for example Freedom of Information Acts)
based on the principle of maximum disclosure, establishing a presumption

21 State Security Act, Section 5 (1) and (2).

22 Banda F, Newspapers and magazines in Zambia: A question of sustainability. Lusaka, Media Institute
of Southern Africa.
23 Misa Zambia: State of the Media in Zambia for the Second Quarter (April-June) 2016.

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 that all information is accessible subject only to a narrow system of
exceptions.

More specifically, the UN Standards note: Public bodies have an obligation to disclose
information and every member of the public has a corresponding right to receive
information; information includes all records held by a public body, regardless of the form
in which it is stored. Here the definition of information is so broad and it encompasses
any information in written, visual, aural, electronic or any other material form. A public
body has been defined to mean:

[The definition] should include all branches and levels of government

including local government, elected bodies, bodies which operate under a
statutory mandate, nationalized industries and public corporations, non-
departmental bodies or quangos (quasi non-governmental organisations),
judicial bodies, and private bodies which carry out public functions (such as
maintaining roads or operating rail lines). Private bodies themselves should
also be included if they hold information whose disclosure is likely to
diminish the risk of harm to key public interests, such as the environmental
and health. Inter-governmental organisations should also be subject to
freedom of information regimes based on the principles set down in this
document.

The definition of a public body is very clear and does not exclude any government agency,
for as long as that agency is in existence by virtue of the enactment of a statute.

Conclusion

There is a dichotomy regarding what is obtaining on the ground and what is provided for
in the statutes concerning the right to access the media and right to freedom of
information. The government flouts a lot of media laws due to lack of legislation that
protects media personnel and media houses. There should be a legal framework to
ensure that all political parties and candidates have access to the media and are treated
equitably by stated owned or controlled media, so that there are no unreasonable

8
limitations placed on the right of political parties and their candidates to access the media
and freedom of expression during election campaigns.

9
 Bibliography

Statutes

The State Security Act, Chapter 111 of the Laws of Zambia.

The Constitution of Zambia, Amendment Act No. 2 of 2016.

The Electoral Process Act No. 35 of 2016.

International Instruments

African Charter on Human and Peoples Rights.

Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948.

Judicial Decisions

Attorney General (UK) v Jonathan Cape [1976] QB 752 at 770.

Commonwealth v John Fairfax & Sons [1980] 147 CLR 39.

Books

J. Curran, Media and power, London Routledge.

Marcel Danesi, Dictionary of Media and Communications M.E. Sharpe, Inc., 2009
London.
R. Evan, Media Law and Practice in Southern Africa, Lancaster House, 33 Islington High
Street London N1 9LH, United Kingdom.
R.P. Meagher, M.W.C. Gummow & J.R.F. Lehane, Equity: Doctrines and Remedies 3rd
edn., Butterworths, Sydney, 1992 at 883.

Journals

A. Mason, The relationship between freedom of expression and freedom of information

in Beatson J and Cripps Y (eds.) Freedom of expression and freedom of information.
2009 Oxford, Oxford University Press.
EUEOM Final Report on 2016 Zambia General Elections and Referendum, August 2016.

10
F. Banda, Newspapers and magazines in Zambia: A question of sustainability. Lusaka,
Media Institute of Southern Africa.
MISA Zambia: State of the Media in Zambia for the Second Quarter (April-June) 2016.
P. Matibini, The Struggle for Media Law Reforms in Zambia, 2010 Lusaka: Misa.
Policy Brief on Media Law and Policy in Zambia, MISA Zambia.
Statement by President Lyndon of the USA when he signed the Freedom of Information
Act in 1966.

Website

Communication and Information http://www.unesco.org/new/en/communication-and-

information/freedom-of-expression/freedom-of-information/ accessed 6 April 2017.

Zambia shutters the Post Newspaper ahead of elections https://ipi.media/zambia-shutters-the-

post-newspaper-ahead-of-elections/ accessed 7 April 2017.

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