Colonial and Apartheid-era laws still govern press freedom in southern Africa

They came for her on her way home.

Walking from the offices of her newspaper on 10 October 2018, Sylvanie Kiaku did not expect to be arrested by officers of the judicial police. Kiaku, the editor of the La Percée, also did not expect to be detained or charged with criminal defamation using a 1940 law originally written by the European colonizers of her country, Democratic Republic of the Congo.

In early November, she was sentenced to three months imprisonment for two articles she published in September describing the lasting damage caused by a major Congolese bank’s failure to pay workers’ salaries for over 10 years.

Kiaku’s sentence was suspended, but her prosecution is not unique. In recent months, at least two other Congolese journalists—Tharcisse Zongia and Peter Tiani—have been jailed on criminal defamation charges for their reporting, and across southern Africa colonial and apartheid era laws continue to be used to prosecute the press.

In November 2016, the Zambian government targeted five journalists from Mano Radio, detaining them and charging them for using “insulting language” under section 179 of Zambia’s penal code. Zambia’s modern criminal code originates significantly from the Queensland code applied by the British to the Northern Rhodesia colonial territory in 1931, according to research by legal scholar John Hatchard. “After independence there was little or no law review to isolate the provisions that had colonial connotations,” Zambian lawyer Milner Katolo told Committee to Protect Journalists (CPJ).

 Botswana, South Africa, and Angola all retain vestigial laws from their time under British and Portuguese colonial rule. Two years later in Namibia, a country frequently lauded for its free press credentials, a law from decades under South African apartheid rule, the 1982 Protection of Information Act, was cited in an effort by the Namibia Central Intelligence Service (NCIS) to halt The Patriot newspaper from publishing about former NCIS members and land deals. Namibian Media Trust, a local press freedom group, asserted the law was “unconstitutional as it violates both freedom of speech and the media” and called for it be scrapped. Despite a June 2018 High Court decision in favor of The Patriot, the Protection of Information Act remains part of Namibian law.

The Protection of Information Act No. 84 of 1982, which prohibits the disclosure of confidential information for a purpose deemed prejudicial to the security or interests of the state, also remains law in South Africa. In February 2018 it was used to justify a police raid on the home of journalist Jacques Pauw following the publication of his book about the financial and political dealings of former South African president Jacob Zuma.

Botswana, South Africa, and Angola all also retain vestigial laws from their time under British and Portuguese colonial rule, including sedition and criminal defamation. Outsa Mokone, editor of the Sunday Standard in Botswana, in September 2018 won a long legal battle against a sedition charge for his reporting about a car crash involving former president Ian Khama. But the law persists, in spite of its colonial origins and negative consequences for press freedom.

 “I know a lot of journalists censoring themselves because there is sedition on our books.” “Sedition is very alien to [our] tradition…it goes against our culture,” Mokone told CPJ. “I know a lot of journalists censoring themselves because there is sedition on our books.” Yet the chilling effect seems not cause enough to repeal these laws. In 2014, a Pretoria High Court declared criminal defamation in alignment with South Africa’s constitution and Angola retains its penal code from 1886, which includes criminal defamation and a host of other sections applied in attempts to silence journalists reporting on corruption. In 2015, South Africa’s ruling African National Congress party announced intentions to repeal criminal defamation and Angola is pursuing penal code reform, but the ANC’s promise has yet to materialize and changes to the Angolan law remain uncertain.

In Eswatini (formerly Swaziland), a pre-independence legal framework looms large over journalists, including the Criminal Procedure and Evidence Act of 1939. Vuyisile Hlatshwayo, director of local press freedom group MISA-Swaziland, told CPJ their last legislation review found 32 laws that restrict the media.

Journalist Bheki Makhubu knows well how these restraints are applied. In September 1999, he was jailed overnight and charged with criminal defamation for an article about King Mswati’s fiancée. But just because these laws are still in use does not mean they are popular. Survey results from Eswatini published by UNESCO in 2017 found that 56.8% of respondents agreed “the existing defamation laws and their application inhibit real public debate in the conduct of public officials and entities.” Only 5.4% disagreed.

These results are just one inspiration for change. In February 2016 and May 2018, Zimbabwe and Lesotho respectively declared criminal defamation unconstitutional; the Windhoek Declaration, signed in 1991, offers guidance for African governments to promote independent and pluralistic media; the 1997 Declaration of Table Mountain called for the abolition of insult laws and criminal defamation in Africa; a November 2010 African Commission on Human and Peoples’ Rights resolution stood firmly against criminal defamation laws; African national constitutions have enshrined fundamental principles of freedom of expression and information; and countless African journalists and media rights groups tirelessly advocate for the ability to work without fear of reprisal.

Makhubu remembers how journalists’ solidarity in 1999 helped pressure the Eswatini government to drop the defamation case against him. “People in power tend to underestimate the blowback they’ll get from the media, and when it won’t go away, it helps,” he told CPJ.

Colonial and apartheid era laws were not written for democratic African societies or a free press. Yet they remain at the behest of independent African governments. As long as these laws remain on the books, the intentions of their authors will continue reaching forward through history to define what African journalists are permitted to report, as they did for Kiaku on her way home from work.

Junior Sikabwe contributed reporting.

This article is an updated version of a piece originally published as part of a collection titled, Reflecting on the Closing of Civic Spaces and its Impact on Marginalised Groups in Southern Africa, compiled by the Southern Africa Litigation Centre for the Southern Africa Human Rights Defenders Summit in Johannesburg, 14-16 November 2018.

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