Doubts have been raised about whether Swaziland’s 33 oppressive media laws are still in force.
There is a thought that the Swazi Constitution that came into effect in 2006 wipes them all away.
The discussion started after I wrote that watching the documentary Without The King which claims it ‘captures the birth of a nation’s revolution’ is an act of sedition under the Sedition and Subversive Activities Act, 1938. I later wrote that there were 33 legal restrictions on the media presently in operation in Swaziland.
This may not be so, according to a correspondent from the Swaziland Coalition of Concerned Civic Organisations (SCCCO) who has a finer legal mind than mine. He says the Constitution can overrule all the laws that went before it.
He writes,
‘In judicial interpretation there is a doctrine of implied repeal. Where two laws contradict one and other the later one repeals the earlier one to the extent of contradiction or inconsistency. Also s 2 (1) of the Constitution contains this doctrine.
‘Now the argument becomes whether the position of the king is so special that it would be inconceivable that the Constitutional provisions on freedom of expression would include sedition. The monarchy does not get any special mentions in the limitations in the Bill of Rights. However, it would take a particularly courageous judge to interpret the Constitution so’.
He goes on to suggest that we need a test case on whether or not viewing Without The King would be a seditious act. Maybe he’s right because although I don’t think the police are going to come knocking on my door if I sit at home watching the documentary, I am not so sure that if I showed it to a public gathering, they wouldn’t close us down and arrest us. Or knowing the Swazi police beat the daylights out of us.
The legal nicety about the Constituion ‘repealing’ the repressive acts doesn’t hold water in Swaziland. The US State Department noted in its report of Human Rights in Swaziland published in March 2008, that in Swaziland,
‘Government agents continued to commit or condone serious abuses [of human rights]. Human rights problems included: inability of citizens to change their government; unlawful killings by security forces; police use of torture, beatings, and excessive force; police impunity; arbitrary arrests and lengthy pretrial detention; infringement on citizens’ privacy rights; limits on freedom of speech and of the press; restrictions on freedom of assembly and association; prohibitions on political activity and harassment of political activists; restrictions on freedom of movement; discrimination and violence against women; poor enforcement of women's rights; child abuse; trafficking in persons; societal discrimination against mixed race and white citizens; antiunion discrimination and child labor.’
None of the above suggests Swaziland has a ruling elite that respects the Constitution.
If we look at media in particular, we can see that under section 24 of the Constitution, ‘a person has a right of freedom of expression and opinion.’
It goes on to state that a person enjoys ‘freedom of expression, which includes the freedom of the press and other media, that is to say freedom to hold opinions without interference; freedom to receive ideas and information without interference; freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons); and freedom of interference with the correspondence of that person.’
Section 24 of the Constitution is not working. You only need to look at how media in Swaziland continues to be harassed to see this. In March 2007, for example, (a full year after the Constituion came into effect) the Times of Swaziland newspaper group was threatened with closure because it published an article (sourced from abroad) that criticised King Mswati III.
I have been collecting examples of the way the freedom of expression in Constituion is being ignored. I think the list proves conclusively that there is no guarantee of freedom of expression in Swaziland.
Here’s my list (if you have any other examples, please share them with me).
May 2006
King Mswati III banned newspapers from writing about his wives without his permission, even while covering official events, after the Times Sunday interviewed one of his wives (with her consent) while she was sick in hospital. This was the second time in 12 months that the Swazi king gagged the media from reporting about royalty. It should be noted that this ban was not reported within Swaziland. This banning by the king simply continued a trend that had been operating since before the new constitution, for example, in 2005, the king ordered the media to stop writing about his lavish spending after newspapers published that he had purchased US$500,000 worth of luxurious vehicles for his 13 wives.
October 2006
Parliament ordered the Times of Swaziland to apologise for an opinion expressed in the newspaper that referred to a select committee that investigated the operations of the Swaziland Broadcasting and Information Service as a ‘kangaroo court’. In an editorial the Times declined to apologize.
November 2006
The Public Services and Information Minister S’gayoyo Magongo instructed Swazi TV to reinstate an employee the station wished to dismiss (Swazi TV complied with the instruction). In Parliament the minister said Section 75 of the constitution empowered him to do this as it charges ministers with responsibility ‘for the policy and general direction and control’ over their departments.
December 2006
The Times of Swaziland came under attack a by a committee that was putting together a case to demand the return from neighbouring South Africa of land that Swaziland claimed belonged to it. At a press conference members of the committee including the chair Prince Khuzulwandle, a member of the Royal Family, criticised the newspaper for collecting views on the issue from members of the public. The response the newspaper received was hostile to the demand for restoration prompting the committee to question why the newspaper asked ordinary people instead of people who were knowledgeable on the subject.
The Times’ response (in an editorial in the newspaper) was to reassert its readers’ constitutional rights to freedom of speech.
February 2007
The king’s chief executive officer Bheki Dlamini barred journalists at a press conference from asking the king questions relating to the recently-formed Swaziland Police Union, whose formation had shaken the Swazi establishment.
June 2007
The Minister for Health and Social Welfare, Njabulo Mabuza, banned health workers from talking to the media in response to a number of stories highlighting the impact of a critical drug shortage.
Workers were forbidden to have any type of communication, including interviews and casual or 'indiscreet' conversations, whether at clubs, hotels, bars or private parties. Journalists were also barred from Mbabane Government Hospital, the country's key medical facility, whose problems have been highlighted in the press. These problems were considered by the press to be typical of the wider crisis afflicting the healthcare system. In fact, it turned out that the ban had been in position for some years previously but was only being enforced now following a series of news reports in newspapers about deaths in government hospitals.
October 2007
The Times of Swaziland tried to find out how much it cost taxpayers to send the Prime Minister A T Dlamini on a trip from Swaziland to the Bahamas. The newspaper was told it could not have the information because it was ‘classified’ information. The newspaper had also been trying without success to get government to disclose the names of companies which won tenders for government business.
November 2007
The Swazi House of Assembly set up a select committee to investigate the editor of the Times Sunday Mbongeni Mbingo following a comment piece the newspaper ran criticising the House Speaker for not allowing a debate to take place on possible amendments to the kingdom’s constitution. The select committee exonerated the editor stating his rights to freedom of expression under the Constitution.
However, what seemed like a victory for the free press was illusionary because the select committee decided it wanted Parliament to accredit journalists who covered the proceedings of parliament, in effect giving the government control over who could report and who could not. The committee also called for the reintroduction of the defunct Media Council Bill (that had originally been tabled in 1997), which, among other things, would require journalists to be qualified and registered with some central body.
See also
SWAZILAND’S OPPRESSIVE MEDIA LAWS
SWAZI KING DOCUMENTARY ‘SEDITIOUS’
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