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Agenda Item 12: Statement by the Media
Monitoring Project Zimbabwe (MMPZ) on the Occasion of the 38th
Ordinary Session of the African Commission on Human and People’s Rights (ACHPR),
Banjul, The Gambia
21st November – 5th December 2005
Delivered by Abel Chikomo, MMPZ Advocacy Coordinator
Madam Chairperson, before I make the following statement on the subject
of freedom of expression (FOE), allow me to extend a request to you in your
capacity as Chair to dissuade honourable state delegates from using disparaging
language when they exercise their right of reply to NGOs. Madam Chairperson,
for the record, we representatives of Zimbabwean NGOs with observer status with
the Commission take great exception to the manner in which the honourable
Zimbabwean state delegate keeps calling us names instead of addressing the
grave issues we raise. We feel such a reaction does not befit the honourable
state delegate and it tends to trivialise this August meeting. We therefore
seek your protection from such unwarranted abuse.
Madam Chairperson, the Declaration of Principles on FOE in Africa
acknowledges that FOE is “an individual right, a cornerstone of democracy and a
means of ensuring respect of all human rights and freedoms”. The guarantee of
free expression is a key means of holding government to account and of
protecting citizens against abuse of their rights. The Press, as the conduit
through which individuals can disseminate and obtain information, has a
pre-eminent role in a state governed by the rule of law.
Disappointingly, it is manifestly evident that, while the Commission
does commendable work to advance the cause of FOE, states often ignore its
pertinent and well-researched recommendations. Thus, instead of implementing
the recommendations of the ACHPR Fact-Finding Mission of June 2002 in order to
create an environment conducive to freedom of expression in Zimbabwe, the
Government has strengthened repressive laws and taken action that has had
exactly the opposite effect. In particular, the unduly restrictive provisions
of AIPPA and POSA have been reinforced rather than repealed, and together with
the Broadcasting Services Act, they form the backbone to legislation that
unduly restricts and controls Zimbabwe’s print and electronic media and gags
the public voice. New legislation like Constitutional Amendment No.17, the
Criminal Law Reform and Codification Act both of 2005 and the General Laws
Amendment Bill will further trench fundamental freedoms.
The threat of terrorism presents serious challenges to FOE in Africa.
The distinguished delegate from Libya made reference to this issue and we thank
him for bringing the issue on board. Press freedom in Africa remains
under threat as long as national laws grant governments wide powers to restrict
it on the grounds of public order and national security. Some governments, [like Zimbabwe], have
appalling records of attempting to classify as
‘top secret’ mere political embarrassment. Those who wield executive
power act in their own political interest, rather than the broader public
interest, and abuse restrictions to avoid embarrassing revelations, and the
exposure of corruption, incompetence, illegality and other forms of wrongful
action.[1]
Under AIPPA, Zimbabwe’s cabinet deliberations can only be published 25 years
after the discussions making it impossible to scrutinise the decisions of the
leaders.
It is essential that restrictions on FOE, including for reasons of national security, be subject to effective judicial oversight. In many African countries there is a lack of clear statutory guidelines to examine the scope of national security. The Ugandan Anti-Terrorism Act of 2002, together with sedition laws of that country show how difficult it becomes for journalists to carry out their duties. Journalists from the privately owned Daily Monitor face persistent harassment. Madam Chair, the honourable delegate from Egypt informed this meeting that his country is in the process of drafting an anti-terrorism law. We implore Egypt to ensure the new law does not trench FOE. Indeed, we want to remind states that respect for freedom of expression is essential both in those countries which are potential targets of terrorism and in those countries which risk harbouring or generating terrorists. At the same time, terrorism thrives in repressive environments, where peaceful, democratic means of expressing dissent, and of having one’s views heard, are not available. A comprehensive strategy to address terrorism must, therefore, seek to eliminate push factors, including by enhancing protection for human rights.
The law of sedition has also been
extensively used across Africa. Typically it makes it an offence to publish
anything which may promote ill-will or disaffection towards the government. The
narrowing of the scope of sedition would make it harder for governments to
abrogate media freedom on the basis of bogus or exaggerated claims. Clearly,
only acts or expression which undermine the territorial integrity or
institutions of the state or pose a grave threat to the safety of its
population by the use or threat of force should be regarded as a legitimate
national security interest.
While
it is conceded that there are instances in which it is legitimate to restrict
the exercise of media freedom on the grounds of national security, it is
equally true that if national security is defined too broadly, media freedom
may be easily abrogated on dubious grounds. The Malawi Preservation of Public
Security Act, the Subversive Activities Act of Swaziland and the Zimbabwean
POSA all of which criminalize expression, are cases in point. The ground of “official
secrets” also unduly restricts media freedom as it prohibits journalists from
having access to "official secrets" on the grounds that it would
compromise national security.
In a
number of SADC countries, the law places the onus on a journalist who publishes
something to show that it did not threaten national security where this is
alleged by the state. To ensure protection of media freedom, the law should
place the burden of proof on those who wish to abrogate the freedom on the
grounds of national security. Again,
where there is effective judicial oversight, the Courts, and not governments,
would be the final arbiter as to what constitutes threats to national security
and thus ensure that FOE is not unnecessarily restricted.
The tendency of governing elites to confuse “the life of the nation” with “the survival of the regime” creates a grave risk that derogations and limitations on expression and information rights will be excessive. A proper balance between secrecy and liberty cannot be struck without review of executive and legislative measures by an independent national judiciary, supplemented by the oversight and monitoring activities of international human rights bodies, non-governmental organizations and a vigilant press.[2]
Thank you