MISA Swaziland condemns detention of two journalists in Qatari embassy

MISA Swaziland and Swaziland Media Consortium consider the four consecutive cases of journalists’ harassment within such a short space of time as a warning that the worst is yet to come.

On 6 October 2018, two senior journalists from the Times of Swaziland Group of Newspapers were held hostage at the Qatar Embassy in Ezulwini Valley.

Charge d’ Affaires Yaqoub Yousuf Al Mulla, in his capacity as Acting Ambassador of Qatar, detained investigative journalist Welcome Dlamini and business editor, Kwanele Dhladhla at the Qatar Embassy.

After failing to coerce them to sign his prepared non-disclosure agreement, he intimidated them by saying that he was going to report the matter to the senior royal authorities.

We strongly condemn the detention of the two journalists by the diplomat while in their line duty.

We appeal to the Qatar envoy to desist from being disrespectful to our senior royal authorities.

Being emaSwati first before they are journalists, journalists cannot allow diplomats to bring the name of our royalty to disrepute in the land.

We, therefore, appeal to the Principal Secretary in the Ministry of Foreign Affairs and International Cooperation to take up this matter with the Qatar Ambassador to protect not only our journalists but also the good name of our royalty from members of the diplomatic corps found abusing the privilege of diplomatic immunity.

In the face of increased attacks on journalists, we are deeply concerned that even members of the diplomatic corps have now joined the assault on freedom of expression in the country.

Issued by MISA Swaziland
Contact: +268 24046677 or +268 7615-6605

MISA condemns violent conduct against journalists

Jointly with the Swaziland Media Consortium (SMC), MISA Swaziland strongly condemns the common violent conduct against media practitioners in line of duty.

Towards the end of September, Swazi Observer photojournalist, Mduduzi Mngomezulu was assaulted by members of the Swaziland National Association of Teachers (SNAT) during their march to deliver a petition to the US Embassy Office.

They confiscated his camera preventing him from carrying out his duties. Times of Swaziland Sunday, Welcome Dlamini, was also attacked by Siphofaneni market vendors, thanks to the bus conductors who came to his rescue.

Claiming to be supporters of defeated Siphofaneni MP candidate, Gundvwane Gamedze, they blamed the media for his loss.

We are deeply concerned that it happened in the month of our commemoration of International Day for Universal Access to Information.

It is worrisome that the police officers at Siphofaneni Police Station preferred to act as peacemakers instead of law enforcers in a criminal matter.

We appeal to Police National Commissioner to stop the habit of running to the state-broadcaster to condone violent conduct perpetrated against journalists.

We implore him to act professionally (avutse bhe) by enforcing the law without fear or favour. None has been brought to book though assaulting journalists inside and outside their newsrooms is slowly becoming an order of the day.

Is the NatCom really waiting for one journalist to be killed before enforcing the law?

Safety and protection of journalists should be his top priority as a protector of all emaSwati because information poverty prevents the nation from participating meaningfully in the tinkhundla-based participatory democracy as well as forging ahead to attain the First World status.

Issued by MISA Swaziland
Contact: +268 24046677 or +268 7615-6605

Cultivating media development in Swaziland

This article was originally published on the UNESCO website on 23 May 2018

Leading up to Swaziland’s celebration of 50 years of independence in 2018, the role of media in social, economic and political progress has never been more crucial. However, a lack of reliable and accessible data on the country’s media environment did not allow local researchers until now to provide evidence-based recommendations on how to foster freedom of expression and media development.

Within this context, the Media Institute of Southern Africa (MISA), with the support of UNESCO’s International Programme for the Development of Communication (IPDC), conducted an 11-month study of Swaziland media landscape based on UNESCO’s Media Development Indicators (MDIs).

Launched on 4 May 2018 in Mbabane during an event attended by high-level government officials and diplomats, the resulting report, Assessment of Media Development in Swaziland, offers a series of recommendations that are set to serve as guidance for policy makers, the media, civil society organizations, and academia in addressing challenges towards a free, independent and professional media environment.

news_230518_swaziland_2Launch event group photo, with US Ambassador to Swaziland Lisa Peterson (sitting second left)

Vuyisile Sikelele Hlatshwayo, the study’s lead researcher, says the release of such a diagnostic report is opportune and important towards the country’s 50 years of independence.

“Firstly, it provides a comprehensive review of the media landscape since Swaziland gained independence in 1968. Secondly, it sketches a much clearer and truer picture of the media environment since independence,” he said, adding that thirdly, “it serves as a timely reminder of the little progress made in media development thus far. Lastly, it provides practical solutions to the identified problems [which are] making it too difficult for the Swazi media to purvey credible and accurate information in a constitutional democracy.”

The report identifies an urgent need for the Government of Swaziland to prioritise media law and policy reforms, which includes repealing all pieces of legislation that hinder the enjoyment of press freedom guaranteed in the Swaziland Constitution (2005). Another call for action is for the government to provide tax incentives to aspiring media entrepreneurs to boost media development. This should also be followed by a prioritisation of the safety of journalists and the protection for media workers from threats, intimidation, harassment and physical assault.

Furthermore, the researchers also expect the report to change the lukewarm response of the Mbabane-based donor community to the struggles for freedom of expression and media freedom waged by the local media bodies.

Furthermore, the researchers also expect the report to change the lukewarm response of the Mbabane-based donor community to the struggles for freedom of expression and media freedom waged by the local media bodies. As pointed out by Hlatshwayo, ”Using the recommendations, it is hoped that the donor community and embassies will make informed decisions to support media projects promoting media freedom enshrined in the Bill of Rights of the Constitution and deepening democracy in the 12 year-old constitutional dispensation.”

UNESCO’s MDIs were developed and endorsed by the Intergovernmental Council of IPDC in 2008. Since then, they have become one of IPDC’s flagship initiatives and have been applied in nearly 40 countries.

The MDI assessment for Swaziland is available for download here

Featured photo on homepage: MISA-Swaziland lead researcher Vuyisile Hlatshwayo presenting the MDI report during the launching

Swaziland needs to pass Freedom of Information legislation

“Swaziland needs to accelerate the process of passing the Freedom of Information and Protection of Privacy Draft Bill of 2007 into law,” according to a new report by the Media Institute of Southern Africa.

golden-padlock-report

The report on open and secretive public institutions in Swaziland is an annual assessment, based on field research and website analyses, that considers how transparent government departments and agencies are.

This year’s report, in a similar vein to previous editions, offered some good signs but overall the picture is less than flattering.

“It is commendable and promising that all the institutions have provided some kind of response to the information requests,” said the report.

“It has to be pointed out however, that thorough follow up and perseverance was necessary, reminding all the institutions several times to provide the information requested. Government ministries and public institutions still prefer withholding public information rather than releasing it to the media and citizens.”

In recognition of its good practice, the Swaziland Communications Commission was awarded with the ‘golden key’ for being the most open institution from the eight institutions that were surveyed.

Coming in last place was the Central Statistics Office, which was awarded the ‘golden padlock’ for being the most secretive of the institutions that were looked at.

Read the full report here 

The report lists several recommendations:

  • after fully engaging with all stakeholders, Swaziland should adopt a Freedom of Information Bill which provides for access to information, openness, transparency and accountability
  • the Official Secrets Act of 1968 should be repealed because it curtails freedom of information

  • all public institutions should appoint information officers or public relations officers to disseminate information and assist citizens who are seeking information

  • government ministries and departments should be allowed to set up websites independent from the national government site so they are able to update them frequently with relevant and useful information

MISA-Swaziland welcomes release of Bheki Makhubu and Thulani Maseko after 15 months in jail

Swaziland’s Media Institute of Southern Africa (MISA-Swaziland) welcomes the release of editor Bheki Makhubu and human rights lawyer Thulani Maseko.

behki and thulani pic

The two were acquitted by the Supreme Court of Swaziland yesterday, 30 June 2015, after serving a year in jail in an unprecedented case which has seen the tiny kingdom drawing attention from several regional and international players.

The charges emanated from articles that were published by a local publication, The Nation magazine, which criticised the manner in which the recently fired Chief Justice of Swaziland, Michael Ramodibedi, dealt with a case involving a civil servant.

The two were arrested in March 2014 and were denied bail following several attempts by their attorneys to fight for their release in court.

This case has exposed the rot within the Swazi justice system and has resulted in the arrest of two judges and a minister.

MISA-Swaziland believes the judgment is a positive step towards the restoration of the rule of law and the supremacy of the Constitution for country.

“The courts have vindicated the citizens of Swaziland,” said MISA’s advocacy officer Phakama Shili.

bheki thulani pic 2

“The ruling will set a good foundation for reforms in the manner in which freedom of expression is perceived in Swaziland.

“This is victory for all of us here in Swaziland and I hope international players will come in and assist the country in this new era on the restoration of the rule of law.”

Shili urges organizations like the International Commission of Jurists to help in strengthening the capacity of the recently appointed judges by providing training and resources.

He also applauded the government of Swaziland for the appointment of local judges in keeping with the country’s counstitution.

This is a good start, the burden is now upon all of us to support the judges and safeguard their independence, said Shili.

MISA-Swaziland thanks all local, regional and international players who have supported advocacy efforts on the case.

‘Judiciary can make positive contribution to press freedom’, says Dr Fidelis Kanyongolo

“In the defamation laws of most countries, a court will not find a person or organisation that is sued for defamation liable if he, she or it proves that the alleged defamation was true in fact.”

– Dr Fidelis Kanyongolo
Mbabane, Swaziland, 2015

On May 3 2015, to mark World Press Freedom Day, Swaziland’s Media Institute of Southern Africa hosted the John Manyarara Memorial Lecture, an annual speech focusing on issues of press freedom. We are grateful to University of Malawi Associate Professor of Law, Dr Fidelis Kanyongolo, a specialist in constitutional law and jurisprudence, who delivered this year’s lecture, held at the Mountain Inn in Swaziland’s capital, Mbabane. In his speech, Dr Kanyongolo addressed ‘the role of the judiciary in establishing a societal balance between media freedom and a person’s right to their reputation.’ Below are his words.

*

Rather than focusing on the binary view of interests involved in defamation suits, the judiciary must add public interest to the equation.

The adversarial approach to the judicial process, the judiciary
At the time that we served together on the MISA TFB (MISA Trust Funds Board), we almost exclusively dealt with media only in the form of newspapers, magazines, radio  and television. In most of the sub-region, online publishing and broadcasting were almost non-existent, and the citizen journalism had not yet been invented. Cell phones had not yet become ubiquitous, and media convergence was something one only read about in specialist ICT literature.

We have come a long way since then. In the here and now, media is radically different and constantly morphing into ever more novel forms and configurations. New forms of media and journalism continue to expand in reach and influence; spurred on by developments in digital technology and expansion of people’s access to it.

Just to illustrate the increased access to mobile technology, consider this: at the time that I  worked with Justice Manyarara on the MISA TFB, only about  4 million Africans had mobile phones, while according to some statistics, by 2012 over 500 million own mobile phones, most of which increasingly have Internet access.

Add to this the expansion of social media, through which people can publish information that affects individual reputations to millions of people across the world, without the benefit of editorial filters, then it becomes clear why judges must ground their understanding of the  evolving nature of the conflict between media freedom and individual reputations in the realities of the changing media landscapes of the countries of Southern Africa.

However, in seeking to understand the changes that have manifested themselves  in the Southern African media landscape in the past decade or so, it is important to avoid conflating changes in form with changes in substance.

Changes in form, in this context, refers to reforms of the institutional superstructure   of press freedom. For example, the establishment of regulatory authorities, the increase in the number of media institutions, the diversification of forms of media and communication, and the re-configuration of policy and legal frameworks.

On the other hand, changes in substance refers to the modification of the scope of press freedom  that is enjoyed in practice. In practice this is a function of the relative balances of power that define the practical relationships of relevant actors such as media organisations, individual journalists, political and economic oligopolies, and members of the public.

Needless to say, changes in form do not necessarily translate into changes in substance. Improvements in legal and policy frameworks do not in and of themselves lead to improved enjoyment of press freedom in practice.

The realisation of this basic point must warn advocates of press freedom not to be lured into a sense of complacency by the illusory effect of changes of form.

Informed by an appreciation of the changing media landscape that distinguishes substance from form, we can then focus on the inter-relationships among media freedom, individual reputations and the judiciary.

Media freedom, individual reputation and the judiciary
The essence of media freedom is captured by the Constitution of Malawi which defines it as the liberty “to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information”.

Grounded in the liberal notion of freedom of expression, media freedom can be argued, to borrow the words of the European Court of Human Rights in the judgment in the Handyside v United Kingdom case, to be:

applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”

One limitation on the scope of freedom of expression is the protection of individual reputation. Almost all national and international norms that guarantee freedom of expression and media freedom recognise this limitation which takes the legal form of defamation laws.

If the exercise of media freedom in particular circumstances conflicts with the protection of individual reputations, it is becomes the mandate of the courts to decide where to strike the balance between the two conflicting goals. Courts do this primarily by interpreting and applying the law of defamation which imposes liability on the defamer to pay compensation or, in the case of criminal libel, to be subjected to criminal punishment.

In interpreting and enforcing the law of defamation, courts can expand or shrink the scope of media freedom.

I propose that there are at least three areas of the judicial interpretation and enforcement of defamation laws in which the  contribution of the judiciary to the  protection of media freedom can be improved without compromising the essence of the legal protection of individual reputations.

Acknowledging societal interests in defamation cases
One of the best-known legal philosophers of the 20th Century was Roscoe Pound of the Harvard Law School. In his ground-breaking article published in 1944, Pound argued that the law  is a tool for social engineering; a lubricant that minimises friction among individual, social and public interests. Among the individual interests that he identified were interests that concern personality which include interests in “honour and reputation.”

I suggest that this framework should inform the judiciary when it is called upon to interpret and apply the law of defamation in particular cases.

Regrettable, the dominance of adversarial approaches to the judicial process, which pits plaintiffs against defendants, tend to reduce legal disputes into two dimensional conflicts involving the rights of the defendant to media freedom, on the one hand,  and the rights of the plaintiff to his or her reputation, on the other.

This leaves social and public interests out of the equation.

Yet, there is no doubt in my mind that the impact of any judicial decision that finds a journalist or publisher liable for defamation extends beyond them to the “consumers” of their publications, namely the general public.

It is, therefore, only logical that the interests the public be factored into the judicial calculus for resolving conflicts between media freedom and individual reputations. Evaluations of the defamatory effect of particular publications, considerations of defences pleaded by defendants in specific cases,  and assessments of compensation must pay due account to the interests of not only the particular plaintiff or defendant in that case, but also those of the public.

Neither Roscoe Pound, nor his latter day adherents, offered a blueprint for resolving particular instances of friction of interests. That is left to judges to decide in particular cases, using  legal principles and rules that  guide them in refereeing such conflicts.

One way of bringing the public interest into judicial discourses on defamation is to recognise media freedom as a defence to claims based on defamation.  In fact in some countries in Southern Africa, media organisations that have been sued for libel have pleaded, as a defence, their right to media freedom. One of the trailblazing cases in this regard was the case of Duplessis v De Klerk which was decided by the South African Constitutional Court in 1996.

However, in some countries, including Malawi, media organisations that have been sued for defamation have rarely raised to the right to media freedom or freedom of expression as a defence to suits alleging defamation. Instead they have often relied on traditional common law defences, such as justification and privilege [briefly define the two defences]. In the case of Malawi, examples of Malawian cases in which a media organisation could have pleaded media freedom, but did not, include those of Chikhwaza v Now Publications, Chibambo v Editor, Daily TimesChinkwita v Newsday, Ngwira v Daily Times,and  Ndovi v UDF News.

The paucity of cases in which media freedom (or more generally, freedom of expression) is pleaded as a defence to defamation suits, at least in countries such as Malawi, results in a shortage of judgments in which the judiciary has the opportunity to articulate its view of the balance between media freedom and the right to individual reputation.

Remember, the courts do not undertake forays into the thickets of legal discourse unless they are invited to do so by the parties in a case. If media freedom advocates hope for courts to resolve the contradiction between media freedom and individual reputation in favour of the latter, they must in the first place ensure that media freedom is pleaded as a defence in defamation suits. By doing this they will compel courts to abandon the binary view of interests involved in defamation suits and add the public interest to the equation.

As indicated above, there will be cases where the media freedom defence is indeed pleaded and a court is faced with the task of striking the appropriate balance between the two competing imperatives of media freedom and individual reputations.

What should such courts bear in mind? In which areas of the judicial process in defamation cases, do courts have some latitude in which they can expand the protection of press freedom?

Of course I pose the question with a some caution because one should be slow in presuming to give advice to judges, lest one be found to be in contempt of court!

Nevertheless, it is worth highlighting at least two areas in the law of defamation which present judges with the opportunities to enhance the protection of press freedom while preserving the essence of the protection of individual reputations.

In my view, these areas are those of the defence of truth and criminal libel.

Extending the “truth” defence
The judiciary can make a positive contribute to the enjoyment of press freedom by reviewing certain aspects of the defence of truth which is available to defendants in defamation cases.

In the defamation laws of most countries, a court will not find a person or organisation that is sued for defamation liable if he, she or it proves that the alleged defamation was true in fact.

Does it matter if the reporter or publisher had taken all reasonable steps to verify the truth of a statement before publishing it, only to discover post-publication that it was not true? The answer is NO; that reporter or publisher will be held liable.

Does it matter if the reporter or publisher was prevented from verifying facts before publishing them because there were legal and policy barriers that impede access to information? Once again, the answer is … NO.

In my view the current limitations on the defence of truth impose an undue burden on those who are accused of defamation. The judiciary can mitigate this burden by  extending the defence of truth to defendants who prove that they took all reasonable steps to verify the truth of a statement ultimately turned out to be untrue.

In addition, courts can also offer further protection to press freedom by modifying the rules of burden of proof with respect to this defence. Instead of requiring that the “accused” prove that his or her statement was true, courts should shift the burden to the complainant to prove that the statement was false.

This will be consistent with calls by media freedom advocates, including UNESCO which in its Media Development Indicators identify one of the characteristics of a good defamation law as that the burden of proof should fall on the plaintiff.

A critical approach to criminal libel prosecutions
Judges may also use their adjudicatory role to enhance the protection of the media freedom in the context of criminal libel.

There have been decades of advocacy campaigns, including those undertaken by MISA, for the repeal of criminal libel statutes in Southern African countries. However, in most of those countries, the criminal libel remains a criminal offence that is actively prosecuted. In order to contribute to the enhancement of media freedom in its role of applying and enforcing criminal libel statutes, the judiciary must take a critical approach that reveals the substance of criminal libel cases which lies beneath their form.

Progressive judges must lift the veil of the forms of criminal libel prosecutions and focus on their underlying realities of interests and power.

This approach exposes the unprincipled enforcement of criminal libel laws which typically involves  the use of the state machinery to protect the individual reputations of only those people or classes who are connected to the ruling elite. This unveiling of the realities that underlie criminal libel should lead judges to take a more cautious approach to treating this offence as a legitimate tool for protecting the reputation of individuals.

Judges must recognise that protection of individual reputation is rarely the only, or even main, reason for criminal libel prosecutions. As such, courts may be justified in nullifying decisions to commence criminal libel prosecutions on the grounds that they are motivated by improper purposes and are based on irrelevant considerations.

Further, by revealing the  selective enforcement of criminal libel laws, critical judicial analysis enables courts to invalidate   decisions to prosecute particular cases on the grounds that such discriminatory application of a penal statute is unreasonable and unconstitutional.

Conclusion
In seeking to strike the proper societal balance between media freedom and individual reputation, the judiciary must deliberately distinguish form from substance; judges must see beyond the forms of laws and legal actions and unveil the power relations that underlie them.

I wish to argue that focussing merely on the forms of the parties and the cause of action impedes judges from resolving the conflict between interests in individual reputation and interests in freedom of expression in a realistic manner- one which recognises interests not as mere abstractions but as substantive tools for securing real results in the real world of politics and economics.

Distinguishing formal and substantive changes in the media landscape improves the analysis of factors that influence the enjoyment of press freedom in practice. Distinguishing form and substance allows for the discrimination of underlying, intermediate and immediate causes that constrain press freedom. In turn, this facilitates the development of   advocacy responses which are more strategic than those that are predicatedon a conflation formal and substantive causes.

As I said earlier, there is no better tribute to Justice John Oliver Manyarara than to reflect on issues that inhabit the nexus between media freedom and jurisprudence.

I hope I have made some contribution to that conversation, which must necessarily continue beyond tonight.

I think Justice John Oliver Manyarara would agree.

‘Human rights belong to everyone – 365 days of the year’, says MISA on Human Rights Day 2014

10 DECEMBER 2014, WINDHOEK, NAMIBIA – The Media Institute of Southern Africa (MISA) today joins human rights advocates and citizens around the world in celebrating Human Rights Day. December 10 is an occasion to celebrate human rights victories over the past year and to focus attention and pressure on our governments to address human rights violations.
MISA logo

This year’s slogan is ‘Human Rights 365’, encompassing the idea that we should not just focus on human rights once a year, but should be vigilant about protecting human rights everyday.  Violators of human rights do not discriminate about when they violate human rights, and we should not limit our vigilance and advocacy to a single day.

In 2014 we witnessed the violation of journalists’ rights as they faced threats, verbal and physical assault, arbitrary detention, and criminal charges.

MISA condemns the human rights violations perpetrated against journalists in Botswana, Malawi, Namibia, Zambia and Zimbabwe who were physically assaulted this year for doing their job and exercising their right to freedom of expression. We urge governments to hold accountable the perpetrators.

Today we especially remember editor Bheki Makhubu and human rights lawyer Thulani Maseko, who were unduly imprisoned for exercising their right to freedom of expression in Swaziland earlier this year. Their continued incarceration is a travesty of justice and a clear indication that the notion of a constitutional democracy in Swaziland remains but a dream. It is equally unconscionable that citizens and governments of southern Africa have not come together to exert pressure on the government of Swaziland for its ongoing repression of its citizens.

Despite this, we are encouraged by the Malawian Government’s adoption of a Policy on Access to Information (ATI) in January 2014, the Mozambique Parliamentary Assembly’s recent approval of an ATI Bill last month and the recent High Court ruling in Zambia that found Section 67 (seditious intent) of the Penal Code unconstitutional. We hope these developments will pave the way for enacting ATI legislation in Tanzania and Malawi, as well as the systematic removal of insult, sedition and criminal defamation laws from the statute books. We renew our call on the governments of Botswana, Lesotho, Namibia, Swaziland and Zambia to expedite the adoption of ATI laws in their countries and reiterate the recent statement by United Nations (UN) Secretary General Ban Ki-Moon’s calling for guarantees for freedom of information and media in the UN’s next set of global development goals.

Human rights belong to everyone, and it is the duty of all of us to help protect them. For over 20 years MISA has worked to promote the fundamental rights of freedom of expression and access to information throughout southern Africa, and we remain committed to fighting for a safe environment conducive to the unimpeded exercise of these rights.

Modise Maphanyane
Chairperson, MISA Regional Governing Council (RGC)
 
Alexandre Neto Solombe                    
Chairperson                                    
MISA Angola

Modise Maphanyane
Chairperson 
MISA Botswana

Tsiu Tsiu                                           
Chairperson
MISA Lesotho 

Anthony Kasunda
Chairperson
MISA Malawi

Fernando Gonçalves                       
Chairperson                                        
MISA Mozambique 

Linda Baumann
Chairperson
MISA Namibia   

Raymond Louw
Chairperson
MISA South Africa

Alec Lushaba                                      
Chairperson                                        
MISA Swaziland                                 
 
Simon Berege                                            
Chairperson                                        
MISA Tanzania                                                          
 
Hellen Mwale
Deputy Chairperson, MISA Regional Governing Council
Chairperson, MISA Zambia

Kumbirai Mafunda  
Chairperson 
MISA Zimbabwe

ABOUT MISA
The Media Institute of Southern Africa (MISA) is a non-governmental organisation with members in 11 of the Southern Africa Development Community (SADC) countries. Officially launched in September 1992, MISA focuses primarily on the need to promote free, independent and pluralistic media, as envisaged in the 1991 Windhoek Declaration. MISA seeks to play a leading role in creating an environment of media freedom and free expression that promotes independence, pluralism and diversity of views and opinions, media sustainability, competency and professionalism in the southern African region. MISA further aims to create an environment in which civil society beyond the media sector is empowered to claim information and access to it as inalienable rights and in which the resultant freer information flow strengthens democracy by enabling more informed citizen participation.

Enquiries

Zoé Titus
Regional Director
Tel: + 264 61 232975
Fax: +264 61 248016
E-mail: zoe@misa.org

Defamation Pay Day: Swazi politician wins biggest defamation case in kingdom’s history

MISA-Swaziland | Media Alert
December 8, 2014

Senate President Gelane Simelane-Zwane has won E550,000 ($50,000) in a controversial defamation case against the country’s only privately-owned daily newspaper, reports local media.

gelane_times of swaziland
Big Pay Day. Senate President Gelane Simelane-Zwane. Photo: Times of Swaziland

Simelane-Zwane, who is also acting chief of KoNtshingila, sued the Times of Swaziland over an article it published about Simelane-Zwane’s birth name.

The article in question raised doubts whether Simelane was in fact born a Simelane, or, as suggested by the article, born to a man with the surname of Mahlangu. The article also touched on the Senate President’s ongoing battle to retain the chieftaincy of KoNtshingila, which depends on her being a Simelane and not a Mahlangu.

The Supreme Court ruling on 3 December 2014 unequivocally found in Simelane-Zwane’s favour.

“This is the highest award in the history of defamation cases in the Kingdom,” reported weekly newspaper Sunday Observer.

“In neighbouring South Africa,” continued the report, “the media went ballistic after the Supreme Court of Appeal awarded damages amounting to E150,000 ($13,000)” to a former police official.

The three judges who handed down the ruling – Nigerian-born Esta Ota; American Bar Association member Stanley Moore; and Lesotho-born chief justice Michael Ramodibedi – emphasised the high-status of Simelane-Zwane in Swazi politics and society, suggesting the more powerful one is the more they deserve from a defamation case.

The judgment, according to the Sunday Observer report, went further in praising Simelane-Zwane: “She is not just a local figure but an international personality.”

In 2008 a government official was awarded E120,000 ($11,000), which was the highest defamation award until last week’s judgment.

This recent ruling has sent further chills through Swaziland’s already heavily censored and fearful media.

Earlier this year two writers were convicted of contempt of court for questioning the actions of the judiciary. Respected and award-winning editor of The Nation magazine Bheki Makhbu and columnist Thulani Maskeo were sentenced to two-years in jail without the option of a fine.

Swaziland’s judiciary, with controversial chief justice Rambodibedi at the helm, continues to draw negative attention from local and international observers. Advocates for the rule of law and a more tolerant country have been calling for Ramodibedi to step down for several years.

MISA’S POSITION
In silencing the media the judiciary is ultimately harming the prospects of the nation. Without open and unfettered debate, progress will only benefit the fortunate few at the top.

In suppressing sincerely held opinions or inconvenient truths in the name of respect, the judiciary is displaying remarkable disrespect for the principles of natural justice and tolerance. If freedom of speech is continually trampled on, the image of Swaziland in the eyes of the world will continue to decline. It is not the so-called ‘disrespectful’ or ‘offensive’ speech that causes the problems; it is the criminalizing and silencing of that speech, of that open debate, which causes the problems.

In handing out disproportionate rulings in defamation cases in the name of protecting the powerful, the judiciary is harming Swaziland’s constitution, which should be protecting free speech and media freedom.

Featured image credit on homepage: Association of Senates

Swazi journalist to spend Christmas in jail after judge denies bail‏

MISA-Swaziland | Media Alert
December 6 2014

Respected journalist Bheki Makhubu was refused bail by controversial judge Mpendulo Simelane at Swaziland’s High Court on December 5 2014.

“I find that the applicant has woefully failed to convincingly establish the requisite exceptional circumstances to warrant his release on bail pending appeal,” said Simelane reading his ruling in court.

In the dock_Swazi editor Bheki Makhubu  waiting to hear his fate on bail, talking with his lawyer at Swaziland's high court on 5 Dec 2014
In the dock: Swazi editor Bheki Makhubu talking with his lawyer at Swaziland’s High Court, waiting to hear his fate on bail. 5 Dec 2014

Makhubu, editor of outspoken monthly magazine The Nation, was convicted of contempt of court on July 17 2014 along with human rights lawyer and Nation columnist Thulani Maseko.

Judge Simelane, the trial judge in the drawn-out legal saga, sentenced Makhubu and Maseko to two-years in jail without the option of fine on July 25 2014.

In court on December 5 Simelane said because Makhubu was already a convict any presumption of innocence he had “falls away” and therefore “the application for bail pending appeal is refused”.

Makhubu’s criminal conviction stems from articles written by himself and Maseko in The Nation in February and March 2014. Both articles criticise the actions of Swaziland’s chief justice Michael Ramodibedi, while calling for a more tolerant and democratic system of governance.

Makhubu and Maseko in their “contemptuous” articles also criticise the actions of judge Simelane, who was the then-Registrar of the high court.

Several attempts were made by defence lawyers to get Simelane to recuse himself from a case in which he has an interest, however Simelane dismissed these applications.

Lawyer and columnist Thulani Maseko decided not to apply for bail after his conviction because he perceives judge Simelane to be biased.

During the contempt of court trial earlier this year there was a heated exchange between Maseko and Simelane.

Several local and international rights groups have been calling for the Simelane to step down, alleging he does not qualify to be a judge.

Amnesty International has called Makhubu and Maseko prisoners of conscience. Archbishop Desmond Tutu, along with several other southern African and intentional rights groups continue to call for the immediate release of the two men.

At this stage, an appeal against their conviction and sentence is due to be heard in May 2015. If the appeal is unsuccessful they are due to be released in July 2015.
Until then, both writers remain behind bars.

Taking stock of the media in Swaziland – MISA partners with UNESCO on media development research

MISA-Swaziland | Research
November 18 2014

The below article was originally published on UNESCO’s In Focus news-site.

Freedom of expression was at the heart of discussions at a UNESCO-supported round table on assessing the media landscape in Swaziland, which took place in Mbabane on 30 October. The round table, organized by the Swaziland Chapter of the Media Institute for Southern Africa (MISA), with funds from UNESCO’s International Programme for the Development of Communication (IPDC), marked the start of a comprehensive assessment of the country’s media landscape.

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Left to right: Alec Lushaba, Chairperson, MISA Swaziland; Mbongeni Mbingo, Chairperson, Editors’ Forum; Annelisa Stoffels, Acting Director, Information and Media Development Department, ICT Ministry

Participants included executive staff from several key media outlets including The Swazi Observer, The Times of Swaziland, Independent News and Voice of the Church, the chairpersons of Swaziland’s main professional associations such as the National Association of Journalists, Editors Forum, the Swaziland Press Club and the Media Workers Union, and representatives of key civil society organizations including the Swaziland Coalition of Concerned Civic Organisations and Lawyers for Human Rights, as well as journalism education institutions.

The Government was represented by Annelisa Stoffels, Acting Director of the Information and Media Development Department at the Ministry of Information and Communication Technology.

UNESCO Media Development Indicators (MDI) Coordinator Saorla McCabe
UNESCO Media Development Indicators (MDI) Coordinator Saorla McCabe

The purpose of the project, as explained by UNESCO MDI Coordinator Saorla McCabe who travelled to Swaziland for the meeting, is to “engage national stakeholders in a process of constructive dialogue and self-reflection in order to identify the key media development priorities and discuss the most appropriate ways of addressing them.”

There was a wide consensus among participants about the utility of such a study in the Swazi context. Stoffels told the assembly that “the study comes at the right time”, explaining that “it will serve as we redraft the Bills [Books and Newspapers (Amendment) Draft Bill 2007 and Broadcasting Draft Bill 2007] before they go to Parliament.” Alec Lushaba, Chairperson of MISA Swaziland, stated the study would provide a “mirror of the media landscape” enabling the range of stakeholders involved to see where they stand and empower them to act upon the findings in order to together improve the situation of the media in the country.

Lomcebo Dlamini, National Director of the Swaziland Coalition of Concerned Civic Organisations (SCCCO)
Lomcebo Dlamini, National Director of the Swaziland Coalition of Concerned Civic Organisations (SCCCO)

In an interview at the end of the meeting, Lomcebo Dlamini, National Director of the Swaziland Coalition of Concerned Civic Organisations (SCCCO), said: “This is an exciting project. As civil society stakeholders we are looking forward to the findings and to the consultation. We do believe that as Swaziland moves towards being more democratic and more understanding of issues of human rights, this will also generate a better understanding of the role that the media can play. Hence the need to strengthen the media in those areas where the research reveals gaps.”

Mary Pais da Silva, Member of NGO Lawyers for Human Rights (Swaziland), said the study could encounter some challenges, but would still be “very valuable for all of us, all stakeholders, opening up information sharing on the media environment.”

Representatives of journalism training institutions attending the meeting similarly perceived the study as providing a window of opportunity. Kemmonye Kamodi, Head of the Faculty of Communication at the Limkokwing University, expressed the wish that “at the end of this study, Government will rethink its sponsorship of journalism students”, following the suspension of scholarships for journalism students some years ago.

“As much as there may be challenges between Government and journalism, we still need journalists that are well trained so that they can show their professionalism when applying their journalism skills.”

Kamodi went on to say that she hoped that the recommendations of the MDI assessment would blend into the Swaziland Vision 2022, which spells out a number of development objectives to be achieved by Swaziland by 2022, and its accompanying National Development Strategy.

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Vuyisile Hlatshwayo, Lead MDI Researcher and National Director of MISA Swaziland

Vuyisile Hlatshwayo, lead researcher for the study and National Director of MISA Swaziland, explained that it was a UNESCO MDI report on Mozambique that inspired him to seek UNESCO’s support in launching a similar study in Swaziland. “Last year when surfing the Net I came across the Mozambique report. After reading it, I saw an opportunity for Swaziland”, said Hlatshwayo. He then spelled out his expectations regarding the study: “It will help the government understand what is wrong with the media situation in the country and will enable us to lobby from an informed position. The key strength of the MDI tool is that it is holistic, covering every aspect of media development.”

A similar view was expressed by Lomcebo Dlamini, SCCCO National Director. “This study comes at a time when there are a lot of issues at stake within our media landscape.”

“There are issues with respect to freedom of expression, where our media are not free to delve into the issues that they need to delve into as they analyze what is happening in the country. There are issues in terms of antiquated legislation and a regulatory framework that is not suited for the needs of the media at this time. What is particularly exciting about this project is that it brings together the various elements that the media need to work on. It is multi-faceted, multi-layered and inclusive of various stakeholders.”

Participants at the round table on assessing Swaziland’s media landscape
Participants at the round table on assessing Swaziland’s media landscape

The round table followed a two-day workshop with the members of the research team to define the modalities of application of the MDIs in the country. The project, which will be inclusive and participatory, will be based on a combination of research methods, including desk-based research, data collection and wide-ranging consultations. It is expected to be completed by May 2015.

The MDIs were endorsed in 2008 by the Intergovernmental Council of the International Programme for the Development of Communication. MDI-based assessments have to date been completed in 13 countries and are ongoing in another 20 countries across all regions.

For more information about the UNESCO and MISA-Swaziland research project on media development indicators (MDI), contact MISA-Swaziland director and lead MDI researcher Vuyisile Hlatshwayo on misaswaziland.nd@gmail.com 

Click here for more information on UNESCO’s International Programme for the Development of Communication (IPDC)

Click here for more information on UNESCO’s advocacy for freedom of expression

And click here for UNESCO’s approach to media development