There is a growing weight of decisions by national tribunals on the right of opposition parties to access to the government media. There is a clear trend towards recognizing an obligation on governments to ensure such access. This was the approach taken by the UN Special Rapporteur on Freedom of Opinion and Expression in his 1999 report (see Obligation of Pluralism).
In 2000, the Zimbabwe Supreme Court made two rulings addressing this very issue. In January, the court instructed the Zimbabwe Broadcasting Corporation (ZBC) to broadcast advertisements and campaign material prepared by the 'No' campaign in the country's referendum on a proposed new constitution. The 'Yes' campaign, favoured by the government, had had its material broadcast at considerable length.14
On 13 June, a few days before parliamentary elections, the Supreme Court, ruling on an application from the opposition Movement for Democratic Change, ordered the ZBC to stop its biased political broadcasting and to fulfil its functions under the Broadcasting Act to carry on TV and radio broadcast services impartially, without discrimination on the basis of political opinion and without hindering persons in their right to impart and receive ideas and information.15
A few years earlier, the High Court in Zimbabwe's northern neighbour, Zambia, had been called upon to rule on a similar issue. The point under dispute was a directive issued by President Kenneth Kaunda in the weeks before the country's first multi-party elections in 1991. This instructed the three government-controlled newspapers not to report statements by leaders of the main opposition party or to accept its advertisements. The court held that the directive violated the constitutional guarantee of freedom of expression:
[S]ince the petitioners were not allowed to publish their views on political matters through the government newspapers, and by necessary implication even through the radio and TV, they were denied the enjoyment of their freedom of expression ...16
The court then made a more general comment on the proper role of publicly-owned media:
[I]n the case of newspapers they are supposed to be run on the basis of journalistic principles and ethics free from any outside interference. These principles dictate the coverage of all newsworthy events regardless of the source of such news. Anything less than this, and it is very easy for the general public to assess whether or not a given newspaper is working according to sound journalistic principles and ethics, is not acceptable from a publicly owned medium - print or other.17
The High Court of Trinidad and Tobago had earlier made a similar finding in relation to television. The state-owned television station had refused to broadcast a pre-recorded speech by an opposition member of parliament. The court ruled that this action violated the right to freedom of expression:
[W]ith television being the most powerful medium of communication in the modern world, it is in my view idle to postulate that freedom to express political views means what the constitution intends it to mean without the correlative adjunct to express such views on television. The days of soap-box oratory are over, as are the days of political pamphleteering ...18
International observer missions and supervisory and advisory groups have taken a similar approach in recent years. The UN observer mission at the 1989 Nicaraguan elections, for example, stated that it was necessary for 'all political parties [to] have equitable access to State television and radio in terms of both the timing and the length of broadcasts.'19 The UN Technical Team for the 1993 Malawi referendum made a similar recommendation:
In the case of government-owned media, it is customary that equal access, both in terms of timing and length of broadcast, should be given to the competing sides to put forward their arguments.20'
(Note that in this case the recommendation was for 'equal' rather than 'equitable' access since this was a referendum where the choice was between two propositions rather than a number of political parties. See Direct Access in Referenda)
Likewise, in the UN-supervised elections in Cambodia in 1993, the UN Transitional Authority in Cambodia (UNTAC) was concerned to ensure fair access to the media, as set out in its election guidelines (see Cambodia: Guidelines of UN Transitional Authority on Media and Elections):
In the exercise of its responsibilities under the Agreement, UNTAC will ensure 'fair access to the media, including press, television and radio, for all parties contesting the election'.21
See Provisions for Public Media.
