The case of Scanlan and Holderness vs Zimbabwe was decided by the African Commission on Human and People's Rights on April 3rd 2009.

Why is the case important?

In its decision, the Commission had to control Zimbabwean legislation for a violation of the freedom of expression.

Therefore, the Commission undertook a detailed examination of the crucial laws and thus illustrated,

to that extent, the profession of journalism is protected from regulation by government authorities under the Charter.

Principle facts.

In March 2002, Zimbabwe enacted the Access to Information and Protection of Privacy Act, also known as AIPPA.

Amongst others, the statutes required every journalist to seek accreditation by the Media and Information Commission,

here and after referred to as MIG, to be allowed to exercise the profession of journalism in Zimbabwe.

Every journalist exercising his or her job without being accredited would face punishments of up to two years of imprisonment for so-called abuse of journalistic privilege.

Several NGOs applied to the African Commission on Human and People's Rights, claiming that the laws requiring compulsory accreditation

interfered with the freedom of expression provided by the African Charter.

They argued that the MIG was managed by a board appointed by any minister assigned by the President and therefore lacks independence.

Moreover, according to their complaints, journalists had to apply for the renewal of their accreditation annually and especially foreign news agencies had to pay unduly fees.

Labelling self-regulation to be a central feature of an independent profession, they considered those regulations of journalism to infringe Article 9 of the Charter.

The applicants found newly enacted Zimbabwean legislation stipulating compulsory accreditation for every journalist to be a violation of the freedom of expression.

The Commission's Finding

In its decision, the Commission affirmed the allegation and found the regulations to be an infringement of Article 9 of the Banjo Charter.

On the question whether compulsory accreditation affects the freedom of expression, the Commission considered such procedures to be not in themselves a violation

provided that they are purely technical and administrative in nature.

However, it found that the AIPPA requirements to have undoubtedly have a negative effect on the exercise of freedom of expression, without any good reason.

It further stated that regulatory bodies drawn up by law, as was the case with the MIG, cannot claim to be self-regulatory but are under control of the state.

Strongly referring to any advisory opinion of the Inter-American Court dealing with compulsory licensing, the Commission concluded that

compulsory licensing or accreditation amounts to a restriction of the freedom to practice the journalistic profession, where it aims to control rather than regulate the profession of journalism,

thereby mainly adopting the Inter-American Court's opinion.

Since the AIPPA regulations did aim to regulate the profession, the Commission considered them to be a violation of Article 9.

Regarding the strict conditions for the accreditation provided, the Commission also agreed with the applicant's allegations and held them to be unnecessary,

given that other legal sanctions coupled with self-regulations would provide democratic society with sufficient mechanisms to control the profession of journalism.

It specifically emphasized that any limitation to the freedom of expression would need to serve a legitimate interest and be necessary in a democratic society, which could not be said of the AIPPA rules.

It further opined the freedom of expression includes the rights of everyone else to receive information and ideas and that those provisions are indivisible and hence must be guaranteed simultaneously.

It added that the phrase within the law needs to be looked at with regard to general concepts of the protection of human rights and freedoms and thus cannot be left solely at the discretion of each state party,

as would be the case if it had been interpreted only based on domestic law.

Hence, having failed to fulfill its negative obligation to refrain from interfering with the right to freedom of expression,

Zimbabwe was ordered to repeal the regulations as well as to decriminalize offenses relating to accreditation and practice of journalism.

The decision illustrates precisely the method applied to examine any party-state's legislature for possible violations of the Charter.

Although accreditation of journalists is not a violation of the freedom of expression itself,

regulation connected to it must restrict the profession in any way that is necessary.