Decriminalising freedom of expression in SADC

October 1st, 2012
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Report compiled by Kim Hawkey

In a session chaired by the vice-president of the Law Society of Lesotho and SADC LA councillor, Nkoya Thabane, advocate Pansy Tlakula, the Special Rapporteur on Freedom of Expression in Africa at the African Commission on Human and Peoples’ Rights, spoke about a project to decriminalise freedom of expression in Africa. In addition, editor of the Zimbabwe Standard, Nevanji Madanhire, spoke about media laws in Zimbabwe and their effect on freedom of expression; and South African legal consultant and media freedom activist Simon Delaney discussed insult laws in southern Africa.

Using the African human rights system to advocate decriminalisation of freedom of expression in SADC

Ms Tlakula said that the court case in respect of the controversial ‘spear painting’, which depicted South African President Jacob Zuma with his genitals exposed, would have been an ideal test case to challenge laws curtailing freedom of expression on the African continent, had it not ‘faded out’.

Ms Tlakula said this in relation to a project that advocates decriminalisation of defamation and other laws that she started as the Special Rapporteur on Freedom of Expression in Africa at the African Commission on Human and Peoples’ Rights. In essence, she said that the project campaigns for the repeal or relaxation of laws that criminalise expression that exist in many African countries and which can result in severe penalties, including fines and imprisonment, as well as criminal records, which can prevent those convicted from working as journalists or taking public office and have the potential to bankrupt people.

Ms Tlakula said that the starting point for the project, which would involve a number of strategic partners, was research and that working groups were currently being rolled out in various regions.

The research would assist in identifying countries with laws that ‘have a chilling effect on freedom’ and where advocacy for the repeal of these laws had the potential for success. These would include countries where there had been a recent change in leadership that could be taken advantage of.

She said that it would be necessary to look at the relevant normative framework and use instruments such as the African Charter on Human and Peoples’ Rights (the charter).

Ms Tlakula said that this would tie in with another leg of the project, namely strategic litigation.

She said that the African Commission on Human and Peoples’ Rights had already decided on a number of cases involving freedom of expression, however none of these related to insult laws or defamation.

‘The challenge for us is to identify an appropriate test case to lodge with the commission or the African Court on Human and Peoples’ Rights,’ she said.

Ms Tlakula said that such a case could be instituted directly in a country that had adopted the protocol and which permits citizens access to the court. However, she noted that very few countries had done so. Ms Tlakula suggested that a strategic option may be to institute action in one of the countries that had adopted the protocol and, after exhausting domestic remedies, to take the matter to the African Court on Human and Peoples’ Rights for a decision.

Ms Tlakula said that the case involving the ‘spear painting’ would have been a good test case, adding that the limitation on free speech should be hate speech and not culture and tradition.

In response to this statement, President of the Black Lawyers Association, Busani Mabunda, who was attending the conference and AGM, asked Ms Tlakula how the right to dignity should be weighed against the right to freedom of expression in light of the fact that President Zuma’s human dignity, ‘as a natural person, title aside’, was offended by the spear painting and questioned why it would be dangerous to invoke culture in a situation such as this one, where the painting had caused anger by being ‘extremely offensive to culture’.

Ms Tlakula said that while she did not condone the spear painting, which she noted was ‘disrespectful to the President and possibly even racist’, if it was located within the discourse of freedom of expression, this was ‘a different story’. She said that she had raised the ‘spear issue’, not in relation to the national laws of South Africa, but because she was ‘intrigued’ when she had looked at arts 27 to 29 of the charter in respect of duties and whether those articles could be invoked to limit any right in the charter. She said that she did not believe they could be so invoked. In this respect, she said: ‘If you introduce notions or standards outside international human rights discourse, then you embark on a dangerous path.’ Further, she said:

‘Speech can be offensive; it can violate human dignity; but, in my view, I do not think such speech should be limited on this basis only. It would be extremely dangerous to do so. African values are used to curtail freedom of speech. I do not think we should go there. That is a very dangerous path.’

Effect of media laws on freedom of expression: The Zimbabwean experience

Mr Madanhire spoke about freedom of expression in the context of Zimbabwe’s historical development, as well as some of his personal experiences of being arrested for articles he had published.

Mr Madanhire said that the media and the judiciary were ‘two peas in a pod’, both equally important, and that one could not exist without the other. He added that persecution of the judiciary was similar to that experienced by journalists in Zimbabwe.

Mr Madanhire said that after independence in 1980 there was a sense of euphoria in Zimbabwe, which resulted in citizens being ‘lulled’ into a false sense of security; however, within two decades the euphoria had faded.

‘In the first 20 years we relaxed and believed the liberators could never go wrong. The new ruling elite was entrenching itself and we forgot the corrupting influence of power. Even the best priest can get corrupted and our liberation movement suffered the same fate and became corrupt,’ he said.

Mr Madanhire said that unlike in other African countries where there was an end to entrenched dictatorships, Zimbabwe had opted to maintain the status quo. ‘The ruling party created a wall of laws that would preserve its hegemony, which were mainly targeted at the media. This is why we are in the situation we are in today, because these laws were created for self-preservation specifically,’ he said.

However, he added that the ‘wind of change became almost inevitable’, starting in 2002 when the ruling party lost an election in respect of a referendum for the constitution. Mr Madanhire described this as a ‘wake-up call’ with severe consequences for the media, as the ruling party ‘knew its hegemony was threatened and the only way to fight it was to close the media space’.

The target was the now defunct Daily News newspaper, which was the first non-state owned publication at the time. He said that this paper challenged the leadership and exposed corruption.

A number of laws were passed with the aim of restricting freedom of expression, including by prohibiting the publication of false news, and the Zimbabwe Media Commission was established to enforce this legislation, Mr Madanhire said.

He added that the role of the commission included registering publishing houses and licensing journalists and therefore it had the power to refuse registration and terminate or suspend mass media, which it exercised by shutting down and banning a number of publications.

Mr Madanhire described how he had been on the receiving end of the criminal defamation law, including being incarcerated three times last year.

‘The law is being abused by those in power. In the three times I was arrested, we had exposed corrupt activities of individuals. For them to ensure that their activities do not continue to appear in public, they sue journalists and, while the lawyers are arguing, the story we would have published is put under the carpet. This has become a very convenient law for anyone involved in illegal activity. It has become very dangerous,’ he said, adding: ‘It is used mostly by politicians from a certain sector of the community. … The politics of patronage has been entrenched.’

Mr Madanhire called on lawyers in the SADC region to help eradicate the ‘draconian laws’ in Zimbabwe and to provide input on the new constitution being drafted.

‘I call on Zimbabwean and regional lawyers to have an input in the way the new national law will be crafted. SADC LA can work closely with them and they can have a serious input in the constitution. … I hope that legal minds can ensure that when the constitution goes to referendum it guarantees freedom of the press,’ Mr Madanhire said.

Insult laws: An insult to press freedom in southern Africa

Mr Delaney spoke on insult laws, which currently exist in all African countries save for South Africa and Namibia, despite being ‘completely indefensible’, according to Mr Delaney.

Insult laws include making it a crime to offend the honour and dignity of the country’s officials, including the President and its armed forces, as well as the symbols of the state, and carry penalties of a fine or imprisonment, or both. In addition, they can be employed to ban newspapers and close down radio stations.

Mr Delaney said that these laws were problematic as there were no objective standards to determine if someone had been insulted and it was usually up to the leaders themselves to decide if they had been insulted and therefore whether these laws applied. Further, these laws do not discriminate between true and false information and were often designed to prevent the publication of truths, he said.

Mr Delaney added that the origin of these laws in Africa stemmed from the divine right of kings in the form of ‘the monarch can do no wrong’ in 1881, which ‘had been superimposed on colonies in Africa without any updating’. These laws were now often relied on to stifle the publication of information on corruption and abuse of power, and did not serve any beneficial purpose, he said.

‘These laws have no place in our society. … Public officials deserve less, not more, protection. They are servants of the public, not masters,’ Mr Delaney said.

He said that there were a number of options to do away with these laws, including:

  • Litigation, for example by using the friend of the court model.
  • Lobbying legislators and generating dialogue.
  • Advocacy, seminars, workshops and creating toolkits for the media.

Mr Delaney called on lawyers and law societies to play a part in encouraging debate about insult laws. To lawyers, he said: ‘People need your help. We are the precious few who have licence to help as practitioners.’

Kim Hawkey, kim.hawkey@derebus.org.za

This article was first published in De Rebus in 2012 (Oct) DR 15.