PEACE WATCH 5/2010 of 21st April
[When is it a Crime or Disturbanceof the Peace to take a Photograph?]
PEACE
WATCH 5/2010
[21st April 2010]
Taking Photographs
Taking photographs can be a high-risk occupation in Zimbabwe for journalists [and sometimes for other people, including tourists]. Last month a freelance photojournalist was arrested outside Harare magistrates court for taking photographs of arriving prisoners without the permission of the Commissioner of Prisons, and, although this is not against the law, he was detained, questioned by the police and charged with disorderly conduct. This raises the question: “In what circumstances can journalists and other people take photographs in Zimbabwe?”
The Legal Position
The general rule is that everyone is free to take photographs of anything and anyone they like, except where the law specifically forbids photographs to be taken. This is one aspect of freedom of expression, which is protected by the Constitution and which includes freedom to receive and impart ideas and information. This freedom as spelt out in the Declaration of Rights [section 20] can only be limited in certain circumstances, by a law passed in order to protect:
· the interests of defence, public safety, public order, the economic interests of the State, public morality or public health; or· the reputations, rights and freedoms of other people, or the private lives of people concerned in legal proceedings; or
· the authority and independence of courts or tribunals or Parliament.
And any such law must be “reasonably justifiable in a democratic society”. There are several laws that prohibit or restrict the taking of photographs in Zimbabwe. By listing them here we are not implying that they comply with section 20 of the Constitution – even some of the following provisions could be open to a constitutional challenge.
Laws Prohibiting or Restricting Taking Photographs
Defence Act: Under section 94 of the Defence Act, the Minister of Defence has the power to declare any area to be a protected area and to give directions banning the taking of photographs within the area [but not of the area from outside it]. Although section 94 is couched in extremely wide terms, it probably covers only defence installations. Taking photographs in contravention of section 94 attracts a fine of US $200 or six months’ imprisonment or both. Various areas were declared to be protected before Independence, but none have been since. The pre-Independence declarations have never been repealed.
Electoral Regulations: Under section 25 of the Electoral Regulations, 2005, it is a criminal offence to take a photograph of anyone inside a polling booth, or to take a photograph within a polling-station without permission from the officer in charge of the station. Anyone who contravenes the section is liable to a fine of US $700 or a year’s imprisonment or both. There is nothing wrong, however, with taking photographs of the outside of polling stations.
Official Secrets Act: Under section 3 of the Official Secrets Act anyone who takes a photograph which is calculated or intended to be, or which might be, useful to an enemy of Zimbabwe is guilty of espionage and liable to imprisonment for up to 25 years, if he or she takes the photograph for a purpose prejudicial to Zimbabwe’s safety or interests. Section 3 of the Act is couched in very broad terms and could afford a pretext for the arrest of anyone who tried to photograph defence installations and other places believed to be of strategic importance.
Prisons (General) Regulations: Under section 168 of the Prisons (General) Regulations, 1996, it is an offence to take photographs inside a prison unless the Commissioner of Prisons consents. A contravention of the section attracts a year’s imprisonment. Taking photographs of the outside of a prison, on the other hand, seems to be perfectly all right — unless the photographer loiters when taking it, in which event he or she may be arrested and charged with loitering within 100 metres of a prison and failing to move on when requested to do so, in contravention of section 85 of the Prisons Act. If found guilty of that crime, the photographer is liable to a fine of US $100 or three months’ imprisonment or both.
Protected Places and Areas Act: If premises are declared to be a protected place, the declaration usually includes prohibitions or restrictions on taking photographs on the premises [section 4(5) of the Act]. Anyone who takes a photograph in contravention of such a provision risks a fine of US $400 or two years’ imprisonment or both. Similarly, if an area is declared to be a protected area the taking of photographs within the area is usually prohibited [section 5 of the Act], and anyone doing so is liable to the same penalty. Note that the Act does not make it an offence to take photographs of a protected place or area, merely within the place or area. The following places and areas are listed in the Index to Legislation as being protected under the Act: the Aurex Factory, Goromonzi; the Beitbridge border-post; the “Chimanimani Restricted/Reserved Area” [presumably the Marange diamond fields]; the Zimbabwe Defence Industries factories in Domboshawa; Fidelity Printers and Refinery in Harare; an underground fuel depot in Mabvuku; a fuel depot in Masasa; the National Heroes Acre; the Presidential retirement home in Borrowdale, Harare; the environs of State House, Harare; and the Wilton Pipe Station.
Other Situations Where Photography is Restricted
Parliament: Taking photographs of the proceedings of the Senate or the House of Assembly is considered to be contempt of Parliament unless permission has been obtained from the President of the Senate or the Speaker. Although not stated specifically in the Privileges, Immunities and Powers of Parliament Act or in Parliamentary Standing Orders, it is established practice of both Houses to prohibit visitors from filming or taking photographs of their proceedings. The prohibition does not extend to taking photographs outside the Parliament building.
Court proceedings: Similarly, filming or taking photographs of court proceedings without permission from the presiding judge or magistrate amounts to contempt of court and is punishable as such. So far as is known, no court in Zimbabwe has ever given permission for criminal or civil proceedings to be filmed or photographed [apart from the ceremonial opening of High Court sessions] and no court is likely to give such permission in future. Again, there is no prohibition against photographing the outside of court buildings.
Parties to criminal and civil proceedings: If a court has prohibited disclosure of the identity of a party or witness to criminal or civil proceedings, then it would be unlawful, and punishable as contempt of court, for a journalist to photograph the party or witness entering or coming from the court in connection with the proceedings.
In All Other Situations
In all other cases journalists and other people can generally take photographs of what and of whom they choose. It is not necessary to get the consent of a person before taking his or her photograph; if the person objects to having the photograph published, he or she can take civil proceedings to prevent publication but cannot normally invoke the assistance of the police to prevent the photograph being taken. The police can become involved only if taking the photograph:
· seriously impairs the dignity of the person concerned or seriously invades his or her privacy, in which event it will amount to criminal insult, which is punishable by a fine of US $300 or a year’s imprisonment or both; or
· amounts to intentionally engaging in disorderly or riotous conduct in a public place, in which case it will amount to disorderly conduct in a public place, a crime punishable by a fine of US $200 or six months’ imprisonment or both.
In some other cases people can be prevented from taking photographs and the police may be called on for assistance. For example, if a person enters private land or premises in order to take a photograph, he or she can be told to leave and, if he or she does not do so, will be guilty of criminal trespass and liable to a fine of US $200 or six months’ imprisonment or both [section 132 of the Criminal Law Code]. The police may be called upon to eject the person from the premises. But in such a case the essence of the crime would be failing to leave the premises rather than taking photographs. Much the same applies if a person takes photographs of a meeting such as a company meeting without permission from the person presiding: he or she may be asked to leave and may be ejected if he or she refuses.
Legitimate Law Enforcement or Police Harassment of a Photo Journalist
To return to the story of the freelance photojournalist. On March 1st he was apprehended and detained by prison officials at the Harare magistrates court for taking photographs of prisoners without the permission of the Commissioner of Prisons. He was later handed to the police who detained and questioned him. There is no law in Zimbabwe that prohibits filming outside courthouses, nor one that requires journalists to seek permission from the Commissioner of Prisons before performing their duties, so the police could not charge him for taking photographs.
They eventually charged him with disorderly conduct and he paid the fine rather than spending the night in the cells, but his lawyer is contesting that charge as spurious. [Note: the prisoners he photographed were a group of alleged coup plotters being brought to court to face charges of attempting to escape from Chikurubi Maximum Security Prison and the photojournalist was pursuing his legitimate professional job covering a case of public interest.]
On January 18 this year, the same photojournalist, Andrisson Manyere, was arrested and detained by the police for two hours for filming a public protest march in Harare by members of Women of Zimbabwe Arise [WOZA]. He was released without charge. The following month a group of ZANU-PF youths unlawfully apprehended and detained him for filming the youths’ public protest against sanctions on the ZANU-PF leadership. The youths handed Manyere over to State security agents who, unlawfully, forced him to delete all footage in his camera before they released him.
Previously, State security agents seized Manyere at his home in Norton on December 13, 2008. Without search warrants or any legal justification, they raided his house and confiscated his work equipment, including a camera and two laptops, which have never been returned to him.
While in police custody, Manyere was threatened with death and accused of taking and sending images of victims of human rights abuses to international media. Manyere was charged with banditry, sabotage and terrorism, together with other abductees [see previous Peace Watches] and kept in Chikurubi maximum security prison for months, and was only finally released on bail on 13th May, 2009. His case is pending before the courts. His lawyer has said he was tortured and that during his incarceration his rights to legal representation, a fair trial, and security of person were violated; he has brought a civil case claiming damages against the State but a court date has not been set.
Meantime he is trying to earn a living following his profession and is having to replace the equipment which has not been returned to him. His constantly being arrested is making this difficult and is also causing a lot of suffering to himself, his wife and children, who each time he is arrested fear the worst.
Conclusion
Any limitation on peoples’ constitutional rights and freedoms must be in accordance with the law. A person should not be stopped from taking a photograph unless there is a given law that prohibits him or her from doing so. And the law must comply with section 20 of the Constitution. The police’s duty is to uphold the law, not to act outside the parameters of the law. Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.