Colonial-era laws used to repress media

A unique gathering of parliamentarians and journalists from 11 Southern African Development Community (SADC) countries has reached a remarkable decision to call on their governments to repeal legislation which restricts the freedom of the media and freedom of expression and offends human rights generally.

It is a watershed agreement reached by consensus which, if implemented, could have far-reaching consequences on governance, the role of the media and the evolution of participatory democracy in the region.

The meeting of 60 delegates took place in Lusaka, Zambia, in October. It was convened by the Media Institute of Southern Africa (MISA) and the SADC Parliamentary Forum and financed by the European Union. The forum was formed in 1996 among 12 of the 14 SADC parliaments and has four representatives from each of the participating countries to act for the SADC's 2,000 members of parliament (MPs). Its main objective is to strengthen SADC policy implementation by involving parliamentarians in SADC activities.

Several journalists who attended had limited expectations of the outcome. They were apprehensive that the politicians would frustrate proceedings by launching the customary barrage of criticism against the media for inaccurate, slanted and "irresponsible" journalism and that the meeting would dissolve into an acrimonious slanging match.

The intention of the meeting as outlined by MISA Regional Project Manager Kaitira Kandjii was to bridge the gap between politicians and journalists and to try to reach agreement on how the two institutions should work together on the rule of law and democratic practice in their countries.

The possibility of a dialogue of the deaf rapidly receded as it was clear from the outset that the parliamentarians were desirous of improving relations with the media and were conscious of inhibitions on free speech in member states.

The organisers had also skilfully ensured that the parliamentarians were composed of representatives of opposition parties as well as ruling parties and that media lawyers made unassailable presentations.

The forum's secretary-general, Dr Kasuka Mutukwa, underlined the truism that "countries can promote human development for all only when they have governance systems that are fully accountable to all people - and when all people can participate in debates and decisions that shape their lives" as the challenge facing the conference.

He posed questions such as, were countries' media laws compatible with democratic governance and how were MPs being made aware of the existence of legislation that suppresses media freedom and basic citizens' rights?

It was clear that while the MPs were aware of media restrictions in a general sense they were ignorant of the variety and wide reach of repressive media legislation and how it inhibits journalists in their work.

There was blunt talking. MISA Zimbabwe Resource Centre Director Kumbirai Hodzi spoke of the "striking similarities" between Zimbabwe's latest media law (the Access to Information and Protection of Privacy Act) and Nazi law in Germany and the indecent speed with which legislation was processed through parliament.

The Malawi Law Commission's Chief Law Reform Officer, Mrs Janet Banda, spoke of the need to set up a special commission within that country's Law Commission, composed of media practitioners, civil society and government officials, to bring about media law reform. She said that it remained for the state to translate its international obligations into national laws and for parliament to incorporate constitutional guarantees on statutes regulating the media.

Media Lawyer Dr Kholisani Solo, of the University of Botswana, criticised the Botswana government for giving with the one hand by laying a broad framework for the exercise of freedom of expression, only to deprive with the other hand by taking away those freedoms piecemeal. It was now capping that by attempting to muzzle the press with a Mass Media Communications Bill to regulate the press by providing for registration of newspapers, accreditation of journalists and a press council to act as a self-regulating body to ensure the maintenance of high professional standards.

Zambian lawyer Patrick Matibini said the Zambian government had made no serious attempt to reform laws to bring them into line with a plural democracy: oppressive colonial legislation remained as well as numerous laws restricting freedom of expression. The presidency remained extremely powerful.

Swaziland lawyer Mrs Lindiwe Matse highlighted the difficulties resulting from the country's use of both Western and customary law systems alongside each other compounded by the all-powerful role of the King. She also described an attempt to remove the Chief Justice by advancing his retirement age with a surprise notice in the Government Gazette of which he was not informed.
One Zambian MP accused Africans of being hypocrites, being highly critical of colonial laws when engaged in the liberation struggle but, after a few years of tasting the "sweetness" of power, making use of them themselves.

The communiqué at the end of the conference took up this theme by noting critically that audits of laws in most SADC countries had revealed that obsolete legislation enacted during the colonial era continued to be used to arrest journalists and criminalise their work.

It also noted that in spite of signing international human rights conventions, these had not received appropriate attention in the region.

It complained that in the SADC five countries were enacting legislation affecting freedom of expression and human rights, that three journalists had been killed and newspapers banned, that printing plant and broadcasting offices had been bombed, with no one being brought to justice, and that international institutions had described the region as the most hostile media environment outside a war zone.

It called on SADC governments and parliaments first to reaffirm their commitment to freedom of expression in terms of Article XIX of the United Nations' Universal Declaration of Human Rights and the Windhoek Declaration, and secondly to incorporate their principles in national laws while repealing laws that contravene human rights and freedom of expression.

It also requested that countries pass laws providing for access to information, subject only to exceptions narrowly defined and acceptable in a democratic society, or, in other words, Freedom of Information Acts such as the one in operation in South Africa.

But the demands went wider than the media and included freedom for MPs. The communiqué pointed out that MPs had been censured and attacked for expressing their views in and outside parliament and called for the creation of an environment for parliamentarians to exercise freedom of expression and gain greater insights into human rights issues. The importance of gender issues and reporting on them were recognised as well.

Finally, the meeting called for regular meetings of the SADC forum and MISA to review progress, the suggestion being that these be held annually.

But the test is yet to come. It remains to be seen whether the parliamentarians will be able to persuade their fellow MPs to get their governments to follow up on the calls for action and whether governments will exhibit the integrity required to relinquish their hold on power over peoples' freedoms.

Nepad (New Partnership for Africa's Development) and its mechanism for peer review of democratic practice and adherence to human rights in African countries was not mentioned during the conference. But the communiqué provides a ready-made instrument for South Africa's President Thabo Mbeki, one of the promoters of Nepad, to make it part of the Nepad concept.