Needless to say, as one who has spent the better part of my professional life advocating for fundamental freedoms, which include the right to freedom of expression and freedom of the press, I am not enthused by ZRA’s attempt to close down The Post.
I have just spoken to Fred M’Membe. He assures me his newspaper was not opposed to paying what they owe ZRA, despite the differing interpretations of the figures. In fact, he tells me The Post was, until yesterday, living up to its share of PAYE and VAT payments. That is not for me to comment on.
But I can proffer a thought on the larger issues surrounding this saga, particularly given their ramifications for democratic politics.
This is not a well-calculated move. First, no matter how legalistically one chooses to approach it, it smacks of political interventionism. As part of a larger discourse of freedom of expression and media development, states the world over are encouraged to uphold the principle of non-discrimination in tax issues. In a word, the state should not use taxation or business regulation as a way of preferring some media outlets over others, for either political or commercial gain. There is evidence to suggest that The Post is not the only media house that has tax problems in Zambia.
Second, because media organisations can be used as a vehicle for amplifying people’s voices, imposing prohibitive taxes or levies on them can amount to a tax on free speech itself. Now, we may question the professional mooring of The Post’s brand of journalism, as indeed is our right, but it still contributes towards building a genuinely pluralistic society in which different voices vie for attention. None of us would want our voices to be subject to such a heavy-handed tax regime that they risk being silenced. The media — as a possible arena for vocal contestation — must enjoy a special place in our democratic politics. No matter how much we hate a particular media outlet, given the changing faces of party-politics, we will almost always find ourselves in need of such a media outlet. Politicians should know better!
Third, at international law, it is a requirement that democratic states must seek to reach a balance between the state’s right to raise taxes and the fundamental human rights of taxpayers. This is provided for in several international instruments, including the International Covenant on Civil and Political Rights, the European Convention on Human Rights, the European Charter of Human Rights, among others.
More over, the International Covenant on Civil and Political Rights goes further to protect freedom of expression. Arguably, under the ICCPR logic, any state curtailment of a media organisation’s right to exist should pass the three-fold test of being (i) necessary; (ii) proportionate; and (iii) narrowly defined in law.
ZRA’s action cannot be reasonably said to be absolutely necessary. Nor can it be said to be a proportionate response to The Post’s alleged failure to settle its tax arrears. I doubt very much the Zambian law is so clear-cut as to be applied in this disproportinate fashion. Human rights lawyers can comment on this more authoritatively than I can ever hope to.
Fourth, it is bad politics. Not now. It actually curtails oppositional voices at a time when election campaigns are in high gear. It casts the ruling party in a bad light, at least with some independent voters (despite the highly polarised politiking in the country, there are still independent voters who can be swayed one way or the other!).
In conclusion, I appeal to the Republican President to personally intervene in this matter, not only because of his legal background which included supporting organisations like the then Zambia Independent Media Association (ZIMA) on its Legal Defence Fund (along with me and others) but also because he simply can. I know he understands what is at stake. He has already demonstrated leadership on the constitutional process. It is not too late.