By Parkie Mbozi

THE PAST days and weeks the news media – local and international – have been awash with a plethora of statements, perceptions and debates about the justice or lack of it relating to the punishment inflicted on Prime TV by the ‘Independent’ Broadcasting Authority (IBA) on 4^th March 2019.

The perceptions have all been bordered on the fairness of closing down the stations, albeit only temporarily. You could almost say the perceptions are as divided and polarized as the country’s politics. I will add to the debate but by contextualizing it to the flaws in the provisions of the relevant (current) law – the IBA Act. Like the saying goes, “the devil is in the detail.”

Short of full facts about the circumstances leading up to the punitive actions meted by the IBA on the affected stations, I will focus on the history and formulation of the IBA Act and resultant perceptions in moments like this. The current Minister of the Ministry of Information and Broadcasting Services (MIBS) – Hon Dora Siliya – as an opposition MMD MP then, while debating in Parliament, once recited the famous quote, “Perception is reality.” This means that, “If you are perceived to be something, you might as well be it because that’s the truth in people’s minds” (quote from the Internet). I will add Ivanka Trump’s quote, “Perception is more important than reality. If someone perceives something to be true, it is more important than if it is in fact true.” Wise words indeed!

So, using the above wonderful analogies, let us dwell on the perceptions under the present circumstance, assuming that indeed “perception is reality”. Reading from the plethora of comments on the 30-day suspension of Prime TV, the perception one gathers is that THE IBA IS NOT INDEPENDENT AND FAIR. The statement by the three church mother bodies released on 6^th March 2019 was succinct but loud enough on this. The IBA must contend and deal with this ‘picture in the head’, whether real or imagined, unfortunately.

So, where does the above perception come from? To put it into context, we have to refer to the provisions of the IBA Act, in its present form. I say “present form” because the Act has undergone two amendments since it was first assented in December 2002. From these two amendments, it has metamorphosed from one that would have created some semblance of a truly ‘Independent’ broadcasting regulatory authority to one that has ended up creating a parastatal, almost in its entirety. The original IBA Act was an architype of the Independent Communications Authority of South Africa (ICASA) Act of 1999, where it seems to have been lifted from, almost word-for-word in some sections.

Yet, the founding ‘fathers’ of the Act foresaw the curse of taking the route we ended up taking through the two Amendments. They foresaw the would-be negative perceptions about the independence of the “Independent” Broadcasting Authority (IBA) that would be a product of the Act in its current form. The curse started under the MMD government who, for eight years after then President Levy Mwanawasa signed off the IBA Bill on 31^st December 2002, refused to implement the Act simply for their displeasure with a name or two proposed by the ‘Appointments Committee’ to what would have been the first IBA Board. The ‘Appointments Committee was itself independently constituted by stakeholders as provided by 2002 law Act. Unfortunately, due this disagreement, the fundamental provision of ‘Appointments Committee’ was one of the casualties of the 2010 Amendment to the IBA Act.

To its credit, the Patriotic Front (PF) government went ahead to actualize the IBA Act in 2012, after the eight years of dilly dallying by the MMD government. However, by then the Act had been significantly Amended in 2010. The principles of an independent regulatory mechanism had been substituted for those of a government-led mechanism. The scenario was further worsened by the 2017 Amendment, which now impels the IBA to collect TV levies for one ZNBC, a key player in the industry. A case of the referee and a player wearing the same jersey and scoring into the same goal post? Back to PERCEPTION.

The two changes to the original Act are the genesis of the perceptions we witness today. So, what did the founding “fathers’ foresee and want to avoid? First, they wanted to see a truly independent broadcasting regulatory authority that would not only be fair but also seen to be fair. Like they say in law, justice must not only be delivered but also seen to be delivered. Back to PERCEPTION. Below are summaries of what the original (2002) IBA Act provided on key principles and how it has been amended – you could be excused to say maimed – by the Amendments of 2010 and 2017. Sadly, both Amendments are an assault on the principle of (perceived) independence of the IBA.

1. The 2002 provision for an ‘Appointments Committee’, constituted by stakeholders (LAZ, MISA, PAZA, NGOCC, Church bodies, etc) for the purpose of recruiting (independent) IBA Board members through an open system, was totally deleted through the 2010 Amendment.
2. Composition of Board: having done away with the ‘Appointments Committee” the function of recruiting IBA Board, the 2010 Amendment transferred the function to the Minister.
3. Appointment of Board Chair and Vice would be done through internal elections (2002 Act). Currently the MIBS Permanent Secretary is the Chair, though not provided for in all three versions of the Act.
4. Appointment of Director-General would have been done by the Independently Constituted Board (2002 Act). The reality is MIBS handled this function in 2012 even before a Board was in place. This happened at ZNBC and Times of Zambia as well.
5. Collection of Television levy for ‘public service broadcasting’ (ZNBC the only public broadcaster, Section 22A of 2017 Act.). This was never there in the 2002 and 2010 Amendments. Introduced in the 2017 Amendment.

Unfortunately, typical of what we have become as a society, few bothered to READ, pay ATTENTION and DO SOMETHING when the original Act was being amended – not once but twice. One would be justified to say that Zambian the society has become one of a reactive rather than pro-active people, complainants rather actors and a society that pays attention to generalities rather than the details.

During the 2010 Amendment the ‘real’ opposition MPs were left to do battle in Parliament but they did not have the numbers; more so that almost half of the MPs of the main opposition then – the PF – had switched allegiance to the ruling MMD. Adding his voice to the topic at hand, MMD faction leader Felix Mutati is quoted that, “Suspension for me will injure tolerance” and added, “but they are denying the rest of us who enjoy the services to continue enjoying the services.” He may not remember that the Amendments the cabinet he was a member of made were the most devastating to the original IBA Act. Another case of not paying attention to detail and being reactive rather than pro-active?

The way forward is for stakeholders to ‘dialogue’ over, and re-look at, the IBA Act and possibly un-do the deed that was done and ‘exorcise’ the curse. A lesson has been learnt.

The author is media and communication scholar, research fellow and PhD candidate based in South Africa.

By Daniel Kalembe

WE REMIND US EMBASSY AND EU OF PF GOVERNMENT’S UNPARRALELD RECORD IN PROMOTING A DIVERSE AND PLURALISTIC MEDIA IN ZAMBIA, AS WE QUESTION THEIR SELECTIVE CONCERN OVER ONE PARTICULAR TV STATION

INTRODUCTION

As the youth, we question the US Embassy and local EU delegation’s selective concern over the 30 days suspension of Prime TV Broadcast Licence.
We wonder why they have issues only with the Prime TV suspension. Why haven’t they equally raised dust over the other two revoked licenses for radio stations as they broke the law?

The broadcast Licence for Valley FM of Nyimba was also suspended and Valley FM received a suspension double that of Prime TV – for sixty (60) days as they broke law; so why then should Prime TV be spared when they also broke the law in an even more serious manner than Valley FM?

The Licences for Luanshya based Ngoma radio and Kafue radio received much tougher sanctions as they were completely revoked; why isn’t the US Embassy and EU Delegation fussing about the 60 day suspension of Valley FM and the total revocation of the other two? Why should Prime TV be above the law?

PF GOVERNMENT’S UNPARRALELD RECORD IN PROMOTING A DIVERSE AND PLURALISTIC MEDIA

At the same press conference where the 30 day suspension of Prime TV was announced, the IBA also announced that it had given new broadcast licenses to twenty two (22) radio stations around the country. IBA further announced that nine other radio stations had been allowed to expand their broadcasts beyond their initial coverage areas.

Isn’t this a commendable and productive development for media freedom in Zambia?

It appears Prejudice and blind solidarity has clouded the view of these people. Let them be reminded that since the Patriotic Front formed government in 2011, PF actualised the IBA act of 2002 that had remained a pipe dream under previous regimes; and through the same IBA Act under the PF government IBA has since its operationalisation in July 2013, issued more than sixty (60) radio and thirty five (35) television licences, INCLUDING PRIME TV!

The PF government continues to promote a diverse and pluralistic media through issuance of licences, when frequencies become available, not just for the sake of fostering fair competition, but to also have a diversely informed citizenry and guarantee that all parts of our nation are serviced in terms of broadcasting.

LEGISLATION GOVERNING THE BROADCASTING INDUSTRY IN ZAMBIA

The broadcasting industry in Zambia is governed by The Independent Broadcasting Authority Act.

The Act provides a procedure for appeal to the Minister and the Courts if need be… so one wonders; why is the US Embassy and the EU undermining Zambian laws?
Zambia is a country of laws; not hooliganism or selective justice.

When Prime TV was awarded a Broadcasting Licence in 2013, it came with terms and conditions to operate within the parameters of Set Broadcasting Standards in accordance with the IBA Act.

Sadly, the inflammatory, alarmist and aggression inducing nature of the Prime TV news broadcast of Saturday 9th February was a recipe to ignite and escalate violence between the youth of UPND and PF. Not only was the incendiary broadcast in breach of the IBA Act, but also of Prime TV’s own guidelines. Prime TV is a media house like any other that must follow the law. Freedom comes with responsibility.

Fifty five (55) years after Zambia’s independence, why should the EU Delegation & US Embassy so patronisingly spit on our regulatory laws?

Why should they condescendingly take us as being so primitive and backward that they think their opinions should override the Rule of Law in Zambia? Disregarding the law is promoting anarchy; we wonder is that the intention of the US Embassy and the local EU delegation?

We encourage them to put aside their pre-conceived ideas and take an objective view by first considering the facts of the matter and accordingly familiarise themselves with applicable Zambian Laws.

As youths we are of the conviction that maintaining the rule of law is the first step in maintaining peace and stability in our nation; and as long as it is not in the law, any other avenue is unlawful and illegitimate.

“Ubuntungwa twalipoka”!

The Author is Patriotic Front Provincial Youth Chairman for Lusaka

By Macdonald Chipenzi

Following the decision by Roan Member of Parliament, Chishimba Kambwili, to challenge the decision of the Speaker of the National Assembly of Zambia to vacate his seat on account of alleged “floor crossing” bearing a day after the Electoral Commission of Zambia (ECZ) set the by-election date puts the by-election in Roan in limbo.

Mr. Kambwili is within his constitutional rights to challenge the Speaker’s decision especially that it was done without proof from the Registrar of Society (RoS) indicating that Mr. Kambwili was actually a National Democratic Congress office bearer.

Further, constitutionally, the only body mandated to nullify a seat of an elected member of parliament is the Court and not the Speaker of the National Assembly.

Like instructed in Article 73(1) of the Constitution of Zambia (Amendment) Act #2 of 2016, “a person may file an election petition with the High Court to challenge the election of a Member of Parliament.”

This provision above is also amplified in the Electoral process Act No 35 of 2016 which points to the fact that any question on an elected member shall be through the Court.

In addition, the Constitution guides in Subarticle 3 of Article 73 that “a person may appeal against the decision of the High Court to the Constitutional Court”

Once the seat is petitioned and appealed subarticle 4 of Article 73 stresses that a “a Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition.”

Therefore, the Speaker’s decision is not final and his role does not involve declaring seats of members of the National Assembly vacant but only the Courts are mandated to do so.

The Speaker’s role and function, in this regard, starts and ends at just informing the Electoral Commission of Zambia of an existing vacancy in the National Assembly for the purposes of filling in the vacancy through a by-election.

The causes of those vacancies are well articulated in article 72 of the Constitution and the Speaker is not given any mandate to declare any seat vacant.

Therefore, Mr Kambwili’s challenge of the Speaker’s alleged disorderly action is in order.

This means that the ECZ has to postpone the Roan parliamentary by-election to a later date to allow and until the Constitutional Court determines the matter.

I suspect the ECZ scheduled that date of 11 April, 2019 because Mr Kambwili might not have delivered his appeal papers yet esp that there was no leave for appeal against the Speaker’s ruling and no timeframe given for such an appeal.

However, the Constitution mandates the speaker to inform the ECZ within seven days on the existence of a vacancy in the membership in the National Assembly so that the Commission sets the date for the by-election as directed by Article 57.

Therefore, Roan Parliamentary Seat by-election is now been plunged into an electoral quagmire and limbo.

In this regard, ECZ has a statutory due to guide the nation, stakeholders and political parties on status of the Roan parliamentary by-election to curb misinformation.

I submit