Statement to the ACHPR on the Right to Free Expression in Southern Africa

MISA Zimbabwe National Director, Tabani Moyo has presented its statement to the African Charter on Human and People’s Rights (ACHPR) on the right to freedom of expression in Southern Africa at the 68th Ordinary Session on the African Commission on Human and Peoples Rights.

Chairperson, Honourable Commissioners, state delegates, ladies and gentlemen, the Media Institute of Southern Africa Zimbabwe Chapter (MISA Zimbabwe) presents this statement during the 68th Session of the African Commission on Human and Peoples’ Rights (ACHPR).

As we celebrate 30 years of the Windhoek Declaration for the Development of a Free, Independent and Pluralistic Press, it is sad that I rise to report on the challenges that the media and the peoples of Southern Africa continue to face in their respective countries. Thirty years on, the problems and complexities facing the media and the press have deepened. This has been exacerbated by the outbreak of the COVID-19 pandemic leading to governments and states using the cover of the pandemic to violate the people’s basic rights such as expression, privacy, media freedom and access to information.

Attacks on the media and safety of journalists
The situation in Mozambique continues to deteriorate at a very alarming rate. Just recently, the government took a number of journalists to Cabo Delgado in an effort to show that the situation was under control. However, insurgents fired at the delegation, with journalists needlessly placed in the line of fire. The journalist, Ibarimo Mbaruco has not been accounted for more than a year after he went missing. His last message was that he had been surrounded by soldiers. This indicates the fragility of the situation in Mozambique and the heightened importance for the protection of journalists doing their jobs.

In Zimbabwe, journalists still face attacks from state security agents. Recently, a journalist, Sam Takawira was assaulted by police while covering court processes. He was injured. Hopewell Chin’ono still faces several charges at the courts due to his investigative work, while Mduduzi Mathuthu has been forced into hiding for about nine months now after police raided his house over allegations he was plotting on subverting the government.

In Zambia, four members of the governing Patriotic Front were arrested after they attacked Chete FM. At the beginning of April, Malawian journalist, Watipaso Mzungu was questioned on allegations that his article had criminally insulted President Lazarus Chakwera. In 2020, MISA Zimbabwe recorded 52 violations on the media and journalists in Zimbabwe alone.

Right to privacy under threat
Zambia recently enacted the Cyber Security and Cyber Crimes Act, which has a chilling effect on freedom of expression, media freedom and Zambians’ right to privacy. Zimbabwe is in the process of doing the same with the Cybersecurity and Data Protection Bill which is before parliament. Both Acts falls far short of regional and international standards and instruments on human rights such as the African Union Convention on Cyber Security and Personal Data Protection (Malabo Convention, which sets the standards for cybersecurity and personal data protection laws as well as capacity building, knowledge exchanges and experience sharing among signatories).

Zimbabwe has also gazetted Statutory Instrument 95 of 2021 known as the Postal and Telecommunications (Telecommunications Traffic Monitoring System) Regulations of 2021. While the SI purportedly seeks to measure all phone calls, it also gives the government the ability to snoop on people’s phone calls, thereby, endangering the right to privacy. It also creates a dangerous environment where the government may have the ability to snoop into calls between journalists and their sources. The statutory instrument is highly problematic in that the monitoring of traffic call records it can easily lead to the disclosure of personal information and data, which leads to exposure of individuals, especially those in the opposition, civic space, the media and activists. There is need for clearly defined safeguards when the government comes up with such instruments to ensure the right to privacy as provided for by the Constitution under Section 61 is upheld at all material times. The instrument does not set clearly defined limits on the monitoring nor are there guidelines on how the judiciary performs oversight role.

Procurement and use of spyware
Beginning of 2021, in February, Citizen Lab, a Toronto based research organisation, conducted research on the use of spyware. It detected that there were seven African countries using the Circles spyware to snoop on citizens’ communications. Zimbabwe, Zambia and Botswana, are among the seven African countries from SADC. This is in violation of both domestic laws on the protection of the right to privacy and ACHPR’s frameworks.

Coordinated approach to media law reform
MISA Zimbabwe notes that in its regional development framework, Vision 2050, the Southern African Development Community does not have a media component to it. Meaning the media, which is a strategic partner for the realisation of strategic development. A free and secure media is needed to support the region in the provision of access to information for socio-economic development, poverty eradication, and regional integration. MISA reaffirms the crucial role of the media for the SDGs, Agenda 2063 and for sustainable development.

Regional Consensus on the crackdown of expression online
There is a dangerous regional consensus on the need to snoop on the internet as seen by the August 2020 SADC Summit resolution on the same. Further, the fake news regulations which started with South Africa triggered similar laws in Botswana, Zambia, Eswatini and Namibia, among others.

Southern African elections & the media
Countries such as Angola, Madagascar, Mauritius, South Africa and Zambia are holding elections this year. These are either, local, municipalities, parliamentary and/or presidential in the case of Zambia, the elections are combined. These are high stakes processes, where the media and the internet are vulnerable. Hence, the need for the Commission to keep its eyes and ears on the ground.

Laws that violated the commission’s guidelines
Zimbabwe is revising its Broadcasting Services Act and other laws. It is also proposing new laws such as the Patriotic Bill, while there are attempts to mutilate the constitution through Constitutional Amendment No.2 (27 amendments). Zambia has also come up with a cybercrimes law and is proposing new media regulations. Botswana is also going through the same process. These laws should meet the threshold of the benchmarks set by the Commission.

MISA Zimbabwe remains open to constructive engagement with the Governments of Southern Africa through the Southern African Development Community secretariat.

We, however, urge the ACHPR to encourage the Governments of SADC to:

  • Take all measures necessary to guarantee the safety and security of journalists.
  • Ensure that the cybersecurity regulation is informed by the revised principles of the ACHPR Declaration on Freedom of Expression and Access to Information which recognises the internet as a right.
  • Ensure that media is free and secure to ensure that media can play a role in promoting sustainable growth and regional integration.
  • Take a stand against SADC countries that have promulgated laws that have the effect of impeding on the right to privacy and the right to freedom of expression.
  • Take a stand against the SADC Heads of State resolution to tighten control and stranglehold on social media and online expression.
  • Demand for roadmap upon which countries that enacted repressive legislation during the outbreak of the pandemic would review and repeal the laws.

Source: MISA Zimbabwe

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