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Freedom of Expression in Zimbabwe and the Telecommunications Monopoly
Published online by Cambridge University Press: 17 January 2008
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An overall penetration rate of 1.4 main telephone lines per 100 inhabitants,1 a waiting period of 14 years for new connections, closure of the waiting list because the number of applicants was too great, a telephone call completion rate of less than 30 per cent,2 obsolete equipment, chronic breakdown problems combined with a substandard fault clearance rate; these were some of the features of the “delinquent service” provided by Zimbabwe's State-owned telecommunications monopoly, the Posts and Telecommunications Corporation (PTC). In Retrofit (Pvt) Ltd v. Posts and Telecommunications Corporation (Attorney-General intervening)3 the question which faced the Supreme Court of Zimbabwe was whether the PTC's statutory monopoly, seen in the context of a system which the PTC itself had conceded was “markedly inadequate to meet the present communication needs of the population”,4 was an unjustifiable hindrance on the right to free expression.
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References
1. According to an OECD Report, Telecommunication Infrastructure: The Benefits of Competition (1995), Report No.35 by the Information Computer Communications Policy Committee, p.29. Table 4, the average penetration rate of its member countries in 1989 was 42.6 per 100 inhabitants, with the average penetration rate per household measuring 89.1%.Google Scholar
2. The OECD average is well above 95%: see idem, p.21. Table 2.
3. 1995 (9) B.C.L.R. 1262 (ZS).
4. Idem, p.1267G.
5. Contained in s.26(1) of the Postal Telecommunications Services Act (Chapter 250).
6. A view upheld by the Supreme Court in earlier proceedings: 1994 (1) Z.L.R. 630.
7. Supra n.3, at p.1273E.
8. Idem, p.1276G.
9. Idem. pp.1276J–1277A.
10. The extent of which is set out Idem. pp.1267G–1269B.
11. Idem.p.1278D.
12. Ibid.
13. Idem, P.1278E–F.
14. Idem, pp.1279J–1280A.
15. Idem, p.1280D–E.
16. Idem, p.1280H.
17. There are other interesting aspects to the case: first, the Court gave a very broad definition of the purposes and benefits of free expression. Second, the use of free expression to strike down a monopoly raises the issue of whether it is appropriate to use the vindication of free expression as a way of asserting concomitant economic liberties. Space constraints do not permit discussion of these points.
18. See e.g. Wiedemann, V. A.-M., Law of International Telecommunications in the United Kingdom: Regulation of Electronic Media (1989), pp.169–170Google Scholar and Schnurr, L. E., “Conduit–Content Convergence: Its Causes and Effects” (1986) 53 Telecommunication J. 537.Google Scholar
19. See e.g. United States v. Black 418 F.Supp. 378 (1976, Kan, D. C..) and, sub silentio, FCC v. RCA Communications Inc. 346 U.S. 86 (1953).Google Scholar
20. See e.g. Turner Broadcasting Sys. Inc. v. FCC 114 S.Ct. 2445, 2456 (1994).
21. See e.g. Pool, I.. Technologies of Freedom: On Free Speech in an Electronic Age (1983), pp.77–79.Google Scholar
22. See e.g. Williams, F., Transmitting World News (1953), pp.18–20 and Pool, Idem, pp.92–95.Google Scholar
23. The phenomenon is not confined to this century. In the UK the postal monopoly during the Elizabethan and Stuart periods proved a most useful method of governmental supervision of the ideas present in the kingdom: see Coase, R. H.. “The Postal Monopoly in Great Britain: An Historical Survey”, in Eastham, J. K. (Ed.), Economic Essays in Commemoration of the Dundee School of Economics 1931–1955 (1955).Google Scholar
24. See Kirby, M., “The Globalisation of Media and Judicial Independence” (1996) I Communications L. 115, 115.Google Scholar
25. See to similar effect Dommering, E. J., “Information Law and the Themes of this Book”, in Altes, W. F. Korthalset al. (Eds.). Information Law Towards the 21st Century (1992), p.3.Google Scholar
26. (1990) 12 E.H.R.R. 485.
27. Art.10(1) reads in relevant part: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
28. Supra n.26, at p.499, para.47, cited in Retrofit, supra n J, at p.1273F–G.
29. Ibid.
30. See respectively, Autronic, supra n.26, and Informationsverein Lentia v. Austria (1993) 17 E.H.R.R. 93 (ECtHR); Associated Press v. United States 326 U.S. 1 (1945), City of Los Angeles v. Preferred Communications Inc. 476 U.S. 488 (1986), Red Lion Broadcasting Co. Inc. v. FCC 395 U.S. 367 (1969), United States v. A T&T 552 F.Supp. 131 (D.C., 1982); Belize Broadcasting Authority v. Courtenay & Hoare [1988] L.R.C. Const. 276 (BelCA): S v. INTN (Pty) Ltd & NBN Ltd [1988] L.R.C. Const. 333 (PNGSC).
31. Supra n.20.
32. Supra n.26, cited in Retrofit, supra n.3, at p.1273F–G.
33. Though in the Irish decision. Attorney General v. Paperlink Ltd [1984] I.L.R.M. 373 (IrHC), Costello J was prepared to hold that the Irish postal monopoly might be classed as an interference not with the right to freedom of expression but with the independent right to communicate.
34. Ibid.
35. Idem, p.388.
36. Black, supra n. 19 and Associated Third Class Mail Users v. United States Postal Service 440 F. Supp. 1211 (1977).
37. E.g. in the Australian government's May 1988 Statement on Telecommunications— noted in (1989) 10 J. Media Law & Practice 114, 115—almost all the reasons advanced by the Zimbabwean authorities were given to justify the retention of a State monopoly in the provision of much telecommunications infrastructure. Moreover, cross-subsidisation and the prevention of “cream-skimming” were regarded as legitimate concerns in the European Commission's 1987 Green Paper on the development of the common market for telecommunications services and equipment COM(1987)290 Final, p.51 and were used to defend the US postal monopoly in a number of cases including Blackman v. Gresham 16 F. 609, 612 (1883, 2nd Cir.), Black, ibid and Associated Third Class Mail Users, Ibid.
38. See e.g. MacAvoy, P. and Robinson, K., “Winning by Losing: The AT&T Settlement and its Impact on Telecommunications” (1983) 1 Yale J. RegulationS 31Google Scholar and Meyer, J. R.et al., The Economics of Competition in the Telecommunications Industry (1980), chap.4.Google Scholar
39. The Court referred to dicta in United States v. AT&T, supra n.30 and Berkey Photo Inc v. Eastman Kodak Co. 603 F. 2d 263 (1979).
40. Citing (1994) 4 Fed. Communications L.J. 154.
41. See e.g. OECD Report, op. cit. supra n.1, and Stehmann, O., Network Competition for European Telecommunications (1995)Google Scholar. See also Brock, G. W., The Telecommunications Industry (1981)Google Scholar and Evans, D. S. and Heckmann, J. J., “Natural Monopoly”, in Evans, D. S., Breaking Up Bell (1983).Google Scholar
42. This must be even more the case in Zimbabwe since, under Zimbabwean constitutional law, even when a challenger has established a prima facie interference with a right the onus remains with it to demonstrate—upon the balance of probabilities—that any limitation prescribed by law upon that right is not justifiable in a free and democratic society: see Zimbabwe Township Developers (Pvt) Ltd v. Lou's Shoes (Pvt) Ltd 1983 (2) Z.L.R. 376, 382in fine–383A (SC), 1984 (2) S.A. 778, 783H (ZS), cited in Retrofit, supra n.3. at p.1277F. The criticism might not be so valid under those systems such as the Canadian Charter of Rights and Freedoms 1982 and the South African Bill of Rights, where it has been held that, once a challenger proves a prima facie interference with a right, the onus then shifts to the party relying on the statute to show that any limitation on the right in question is reasonable and justifiable in a free and democratic society.Google Scholar
43. Supra n.19.
44. Idem, pp.91–92.