Capital Radio (Private) Limited v The Minister of Information, Posts and Telecommunications

The applicant, Capital Radio (Private) Limited, a company incorporated in Zimbabwe, wished to establish and operate a radio transmitting station within Zimbabwe for the purpose of carrying on a broadcasting service for reception by the general public. It was prevented from doing so by legislation: section 27 of the Broadcasting Act [Chapter 12:01] granted the Zimbabwe Broadcasting Corporation an exclusive monopoly over broadcasting services in Zimbabwe, and sections 14(1) and (2) of the Radio Communications Services Act [Chapter 12:04] prohibited any person other than the Zimbabwe Broadcasting Corporation from possessing or working a radio station for broadcasting purposes in Zimbabwe. The applicant filed a constitutional application on 27 April 2000, and the respondent filed an opposing affidavit on 5 May 2000, conceding that the legislation offended section 20(1) of the Constitution but requesting time to establish a regulatory framework for licensing broadcasting services.

• Whether section 27 of the Broadcasting Act [Chapter 12:01] is inconsistent with section 20(1) of the Constitution of Zimbabwe insofar as it vests an exclusive broadcasting monopoly in the Zimbabwe Broadcasting Corporation
• Whether sections 14(1) and 14(2) of the Radiocommunication Services Act [Chapter 12:04] are inconsistent with section 20(1) of the Constitution of Zimbabwe insofar as they prohibit persons other than the Zimbabwe Broadcasting Corporation from possessing or working a radio station for broadcasting purposes
• Whether the applicant is entitled to operate a broadcasting service and import broadcasting equipment with immediate effect despite the absence of a regulatory framework

IT IS HEREBY DECLARED THAT: A. (1) The monopoly on broadcasting services created by section 27 of the Broadcasting Act [Chapter 12:01] is inconsistent with section 20(1) of the Constitution of Zimbabwe and is therefore invalid insofar as it vests in the Zimbabwe Broadcasting Corporation the exclusive privilege of carrying on a broadcasting service in Zimbabwe; (2) Sections 14(1) and 14(2) of the Radiocommunication Services Act [Chapter 12:04] are inconsistent with section 20(1) of the Constitution of Zimbabwe and are therefore invalid insofar as those provisions prohibit any person, other than the Zimbabwe Broadcasting Corporation, from possessing or working a radio station for the purpose of carrying on a broadcasting service in Zimbabwe. B. In the premises: (a) The applicant is entitled under the law to operate and provide a broadcast service from within Zimbabwe; (b) The applicant is entitled under the law to import into Zimbabwe all radio and other equipment to operate a commercial radio station and to broadcast within and outside Zimbabwe, subject to payment of all customs dues and import taxes lawfully levied. C. Each party shall bear its own costs of this application.

Legislative provisions that vest an exclusive monopoly in broadcasting services in a state-owned entity and prohibit private persons from operating broadcasting services are inconsistent with section 20(1) of the Constitution of Zimbabwe, which protects freedom of expression, including the freedom to receive and impart ideas and information without interference. Freedom of expression encompasses the right to establish and operate broadcasting services. Where legislation is declared unconstitutional and invalid, affected parties are entitled to exercise their constitutional rights with immediate effect, and the government cannot delay the implementation of constitutional rights indefinitely on the basis that it needs time to establish a regulatory framework.

The Court noted that it was unfortunate that the parties failed to agree upon a reasonable time limit for establishing a regulatory framework for licensing broadcasting services. The Court observed that the respondent's proposal to delay implementation until the end of the second session of the Fifth Parliament was totally unacceptable given that four months had already passed since the opposing affidavit was filed without any progress toward setting up a regulatory authority. While acknowledging the need for a regulatory framework, the Court implicitly suggested that such frameworks should be developed with reasonable expedition and that constitutional rights cannot be held in abeyance indefinitely pending the enactment of enabling legislation.

This case is significant in Zimbabwean constitutional law as it extended the principle established in the Retrofit cases regarding telecommunications monopolies to the broadcasting sector. It affirmed that freedom of expression under section 20(1) of the Constitution of Zimbabwe includes the right to establish and operate broadcasting services, and that legislative monopolies preventing private entities from engaging in broadcasting are unconstitutional. The case demonstrates the judiciary's willingness to strike down legislation that infringes constitutional rights, even in the absence of alternative regulatory frameworks. It opened the broadcasting sector to private participation and liberalized media in Zimbabwe. The case also illustrates the Court's approach to remedies in constitutional matters where the government seeks delay to enact new legislation, emphasizing that constitutional rights cannot be indefinitely suspended pending legislative action.