The Kwese TV licencing issue has generated a lot of interest in broadcasting licensing issues. The matter hogged the limelight during the week and is set to continue. I am obliging a request to write about what the law says about broadcasting licences. The point is not to take any position and make an argument for any one interest group, but simply to discuss what the law says noting the paradoxes arising. How feasible or possible is it to control and regulate broadcasting services in the 21st Century in the age of the internet. The Broadcasting Services Act Chapter12:06 regulates broadcasting services and licensing issues in the country. It seeks to, among other functions, regulate broadcasting services and systems and provide for programme standards and protection of the broadcasting frequency spectrum.
Rights: MIRIAM TOSE MAJOME
A brief background
Zimbabwe has one television station and four radio stations run by the Zimbabwe Broadcasting Corporation (ZBC) formerly Rhodesia Broadcasting Services. ZBC formerly had a monopoly on provision of broadcasting services until amendments to the Act enabled at least three other commercial radio stations to be licensed from 2012. The Broadcasting Authority of Zimbabwe is the regulatory arm which administers the Act. It is established in terms of Section 3. The board which runs the authority is set up by the Minister of Media and Information. The authority receives, evaluates and considers applications for the issuance of broadcasting and signal carrying licences.
Kwese TV licence confusion
As I write the situation around Kwese TV’s licensing is rather confusing. One day they announced that they were licenced to operate and the next day they sent messages announcing the suspension of the service. As major stakeholders as potential customers to whom the contradictory communications were sent are owed a proper explanation. An issue pertinent to the current matter is that the Authority should in Section (1)(2)(g) ensure that Zimbabweans have effective control of broadcasting services. This has raised the question of the nationality of Kwese TV to the fore. Is it a Zimbabwean company or not? Information at hand shows it was registered in Mauritius. Therefore, it is not a Zimbabwean company.
However, because of its close association with the Zimbabwean mother company it cannot be deemed as a 100% foreign company.
If it is a Zimbabwean company or has sufficient links according it some nationality status then it has a right to be considered on that basis as specifically provided by the Act. One of the other licensed service providers currently broadcasting satellite TV signals is a South African company. However, it has a tenuous Zimbabwean identity through a minority shareholding by a Zimbabwean company. Kwese TV may well claim and utilise the same shareholding association with its parent company and also be deemed a Zimbabwean company.
Purpose of the Act
The Act itself is a very progressive piece of legislation. In its letter and form it encourages diversity and inclusion and indeed multiplicity of players. It seeks to encourage the establishment of modern and effective broadcasting infrastructure. The Authority is obliged to welcome applications from companies seeking to and with potential to offer services that encourage the effective use of new and modern technologies.
From the information at hand about Kwese TV it plausible that it has such potential given its close association with Zimbabwe’s biggest mobile tech giant. It would in all likelihood have invested heavily in modern and new broadcasting technologies commensurate with its associated brand. The Act compels the Authority to factor these considerations when deciding any application for a licence.
The Act also seeks to promote the provision of a wide range of broadcasting services in the country. It is mandatory that the services provided be of high quality and calculated to appeal to a wide variety of tastes and interests. Thus diversity in broadcasting services is actively compelled by the Act.
Diversity pertains to national, political, racial, religious differences. It is compulsory for broadcasters to include diverse views in their programming. The content served by broadcasters must include airing of regular news programmes as well as public debates on political, social and economic issues. The content must feature local, national, regional and international news and significant issues.
The Act on paper, as stated actively, seeks to foster a healthy plural democracy. It is widely believed and said that Kwese TV’s licensing difficulties are because of political machinations which seek to stifle potentially divergent views. If the suspicion is true it goes directly against the provisions of the Act and what it seeks to achieve. The Act actively seeks to promote diversity and plurality of views. This is why I stated that it is progressive legislation in letter and form. It is far from being a repressive piece of legislation. However, it must be conceded that application and implementation of legislation depend on political persuasions and policies of the day.
The paradox of licences
Section 7 strictly forbids providing broadcasting services without a licence. To do so is a criminal offence. Apart from the prescribed criminal penalties the Authority is empowered to seize and forfeit equipment and apparatus used in the unlicensed broadcasting.
One interesting memory is the Capital Radio case in the late 1990’s fronted by former ZBC presenter Gerry Jackson. They daringly set up a pirate radio studio in one of the rooms of the then Monomatapa Hotel. They defiantly beamed day after day to the nation much to the chagrin of the authorities who had no clue of their location. They played cat and mouse until they were eventually caught. Their equipment was seized and that was the end of them, but nevertheless it was a very daring move.
However, try as any government might, the truth is broadcasting is very difficult if not impossible to control as airwaves and radio frequencies cannot be contained. Signals are transmitted from a source and move freely through the atmosphere until they are decoded by receivers. Presently there are numerous radio and television stations beaming freely into Zimbabwe from all corners of the globe. The paradox is they do not have broadcasting licences and the authorities are not bothered by that.
Free to air television broadcasting services such as Wiztech are now a permanent and normal feature of Zimbabwean life. Free to Air decoders are freely and openly sold. The authorities are not bothered by that either, but the truth is they are powerless to control broadcasting services beamed from outside the country.
More seriously is that the internet has brought its own challenges. Television and radio channels are provided through online live streaming and no broadcasting licenses required. UTube, Soundcloud, Netflix and other broadcasting services are accessed locally and require no broadcast licences. Nothing can be done about this. However, when a television company presents itself and applies for a licence an entire nation goes berserk. Technology permitting perhaps it too will join the many other external broadcasters and also beam freely into the country online. We wait to see how it unfolds.
Miriam Tose Majome is a lawyer and a teacher. She can be contacted on email@example.com