She advised Shawa, if he was aggrieved with the decision of the Board, to appeal to the Minister of Information and Broadcasting Services for redress, as per the provisions of the Act.
What do we make of this move by the supposedly Independent Broadcasting Authority?
The first point to note about the cancellation of Prime TV’s broadcasting licence is that it is illegal. This is because the decision of the Board did not comply with a mandatory provision of the very section that the IBA Board cited to explain their action. While the quoted Section 29 (1) (j) and (k) of the IBA (Amendment) Act of 2010 empowers the IBA Board to cancel a broadcasting licence, Section 29 (7) of the same IBA (Amendment) Act of 2010 provides that “The Board shall, before cancelling or suspending a broadcasting licence under this section, give the broadcasting licensee an opportunity to be heard”. The hearing safeguard provided in this provision is important for, among other reasons, enabling the IBA to draw specific charges against the licensee (otherwise how does one defend themselves without written charges?), determining what constitutes, for instance, ‘public interest’, establishing the facts behind the alleged conduct of the station that amount to the violation of public interest, and deciding whether those facts were so grave that they warranted cancellation of the station’s licence.
By cancelling Prime TV’s licence without according the station, or its representatives, the opportunity to be heard, the Board disregarded an express provision of the law. As a result, the actions of the IBA are illegal, as the body does not have the legal power to close down a TV station in this manner. Those supporting the closure of Prime TV are missing two important points. First, the IBA did not provide any causal factors behind the closure of Prime TV. So we should not create or imagine the charges on behalf of the IBA. Second, even if the IBA had stated the charges, the Board is obliged to follow the law when cancelling a broadcasting license. As I have just shown, the regulatory body did not follow the law.
Were the station to appeal against the cancellation, any level-headed Minister of Information and Broadcasting Services would swiftly overturn the IBA’s decision and sack all the Board members who supported it for testing positive to the more lethal ignorance virus disease – IGVID20. Of course, this then raises the question of whether Prime TV will be lucky enough to find a level-headed Minister of Information when their appeal is finally heard. Few people would be willing to accuse Dora Siliya, the current occupant of the office, of possessing an independent judgement – independent in particular from the desires of the appointing authority.
The other problem is that while Section 31 (1) of the IBA (Amendment) Act of 2010 stipulates that “A person who is aggrieved with a decision of the Board under this Part may appeal to the Minister within thirty days” – after which they may appeal to the High Court if left unsatisfied – it does not provide for a specific time-frame within which the Minister must decide the matter. This is an institutional loophole that the Minister may take advantage of to unduly delay deciding the case, one that should be rectified urgently because it potentially undermines the efficient administration of justice and enables a minister who is susceptible to external influence to hide behind its ambiguity.
The second point is that the cancellation of Prime TV’s broadcasting licence is a political decision and part of President Edgar Lungu’s wider strategy for the 2021 election. Those who are calling on the IBA to reverse the illegal action it has taken against Prime TV are missing one crucial point that is likely to render their appeals futile: the prime mover of the decision is almost certainly the President of Zambia. By closing the country’s leading independent television station, Lungu may be seeking to remove one more hurdle in his strategic step-by-step march to retaining power and extending his rule. Over the last few years, Prime TV, competing against 41 other officially licensed television stations in Zambia, has emerged as the channel of choice in most Zambian households.
It has provided an important platform for the expression of a plurality of views and the discussion of issues that matter most to the public. These include the performance of the Patriotic Front (PF) in power, the viability of opposition political parties, the implications of the Constitution of Zambia (Amendment) Bill No. 10 of 2019, and the question of whether Lungu is eligible to stand for another term of office.
The station has also regularly televised paid-for rallies of opposition parties that are denied access to the state-run Zambia National Broadcasting Corporation. Furthermore, Prime TV, sometimes in conjunction with other institutions, has organised and broadcast a series of public discussions that have raised public awareness and understanding on different subjects of mutual interest. Such was Prime TV’s influence and rising appeal that even ministers and ruling party officials regularly abandoned the public media and queued to appear on this private television station, seeking to tap into its distinct viewership. Of particular concern to the PF is that the channel, available on the decoders of DStv, Top Star and GOtv, is most popular in the urban centres of Lusaka and Copperbelt, where the party’s support has become shaky.
Worried that the disenchantment arising from an informed public may damage his re-election prospects and work against the governing party, President Lungu may have exerted pressure on the IBA to shut down Prime TV in order to strike a serious blow to the electoral chances of opposition parties by removing the most effective platform that enabled them to connect their agenda for political change with the concerns or demands of the electorate. If democracy is about the competition of ideas, politics is about the struggle for power – social and economic. This struggle cannot be waged without the media. Lungu knows this, and he is crudely making impotent his opponents by demolishing their access to this tool. Incidentally, by eliminating the possibilities the media offers for non-violent competition for power, Lungu is priming the country for civil war – the only other means for struggling for power.
By closing Prime TV sixteen months ahead of Zambia’s next election, Lungu and the PF are also seeking to deceive many into thinking that the decision is totally unconnected to the 12 August 2021 election, when, in fact, it is the underlying motivation. It is worth noting that when Lungu and the PF, in another move that was meant to boost their re-election chances, closed The Post newspaper on 21 June 2016, only about six weeks had remained before that year’s election. Despite great attempts by the government to present the action as a result of the failure by Zambia’s then leading independent newspaper to settle a disputed tax debt, it was quite obvious to many that the decision was linked to the election and was difficult to explain for any other reason. Lungu appears to have learnt from that experience by closing yet another critical media organisation much earlier this time around.
As well as seeking to conceal the obvious link to next year’s election, notwithstanding the fact that it is the primary motivation behind the move, he has decided to take an early decision in order to leave sufficient time to exhaust possible legal challenges against the cancellation of Prime TV’s broadcasting licence. In 2016, Lungu took a gamble in closing The Post based on the expectation that the newspaper would not have enough time to exhaust the legal processes before it could be allowed to resume operations. This time, with the executive’s capture of key state institutions, Lungu and the PF may have the confidence that the courts are on their side and that the final judgement has probably already been written in their favour. It is this perceived inability of the judiciary to salvage its independence from the executive that may explain why the IBA Board decided to overlook the procedure laid down in the Act for the cancellation of a broadcasting licence.
Here, we see another point: the increasing deployment of lawfare to undermine democracy. Lawfare, in this case, refers to the strategic use of the law and legal institutions by actors in the executive to achieve political goals, obscure their authoritarian tendencies and enhance their grip on power. By using the IBA to remove a significant hurdle in his bid for absolute power, Lungu could be attempting to wrong-foot his critics by arguing that the closure of Prime TV was a legal decision, even if the directive may have come from him and the motivation was entirely political.
The third point to be made about the closure of Prime TV is that it demonstrates the increasing authoritarian and extra-constitutional exercise of state power in the interests of the ruling cabal. Moments after the IBA Board announced the cancellation of the station’s broadcasting licence, about 15 to 20 heavily armed police officers moved to seal off the premises of Prime TV and chased away all the workers. This action was as lawless as it was reckless and represented the highest expression of state-sanctioned impunity. Section 29 (5) of the IBA (Amendment) Act of 2010 stipulates that “Where a broadcasting licence is cancelled under this section, the broadcasting licence shall be void and shall be surrendered to the Authority”. This means that the only thing that belonged to the government on Prime TV premises was the broadcasting licence. Even if the cancellation of Prime TV’s licence was legal, the government, based on the cancellation of a broadcasting licence alone, has absolutely no right to take over private property.
As a matter of fact, the occupation of Prime Television premises by police officers is a violation of the right to privacy of property protected by Article 17 of the Constitution of Zambia, which states that “Except with his own consent, a person shall not be subjected to the search of his person or his property or entry by others in his premises.” In other words, every person is protected from violation of their right to privacy through entry by others in their premises without their consent. The police had neither consent nor licence to enter the premises of Prime Television. In the absence of a licence issued under a written law or an order issued by court of law, their action was both unjustified and unconstitutional.
Here, we see that the PF does what the PF wants. Not even the law, including the Constitution of Zambia, can stop them. Their ultimate goal is to create a fear-driven society where no public criticism of the government and president is possible. Freedom of speech will not be directly outlawed but there will soon be no media outlets willing to print or broadcast any critical views. As the country heads towards the 2021 election, Zambians should not be surprised to wake up one day and learn that the government, for one manufactured reason or another, has closed the remaining critical newspapers such as News Diggers or The Mast. The struggle on the mass front – mass consciousness against oppression and the possibility to rise against them – is what Lungu and the PF are preventing by shutting down the independent media. This will go down in history as an indictment of all of us Zambians: we did nothing when Lungu was destroying the vestiges of autonomy in all key institutions outside the executive arm of government for the purposes of establishing an authoritarian regime and a slide into a fearful dictatorship.
How bad do things have to get in Zambia before we stand up to Lungu and the PF, and say ‘enough and no more’? Yesterday, it was The Post and then John Sangwa. Today, it is Prime TV. Tomorrow it will be YOU. We commit the greatest crime as we consent to the status quo by remaining silent and doing nothing in the face of serious democratic backslides, injustice, abuse, corruption, and glaring inequality. This is our challenge: we Zambians are complicit in our brutalisation because we choose to be spectators in our own torture at the hands of Lungu and the PF. We have a responsibility to stop Zambia’s slide into authoritarian rule and prevent our descent into a darkness we may never recover from. Time is running out, fast.