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Thursday, 27 March 2008


I raised a few eyebrows yesterday (26 March 2008) when I suggested that being in possession of a copy of the Without The King documentary was an act of sedition under Swaziland’s oppressive laws.

I think the people who were surprised and even a little bit shocked were those who had never stopped to examine the legal situation Swaziland.

Some people in the international community have been misled by the Swazi Constitution that came into effect in 2006. When you look at what it has to say about freedom of the press, freedom of expression and freedom of association, it reads like a model constitution.

The problem is the Constitution is a confidence trick because the laws that existed before it was published have not been repealed, nor does there seem to be any move in the near future to do so. The ruling elite in Swaziland like it just fine that they can restrict people in what they say, who they say it to, and where they say it.

Some media commentators have said there are about 30 laws in Swaziland that restrict the media. I’m not so sure there really are that many (if someone knows them all please send me a list) but here courtesy of the Konrad Adenauer Foundation and Article 19 are the main ones.

The Official Secrets Act, 1968 prohibits any person who possesses or has been entrusted, ‘by any person holding office under the Government’, with any code, password, sketch, plan, model, article, note, document or information, from communicating it to any unauthorized person, retaining it, failing to take proper care of it or using it ‘in any manner or for any purpose prejudicial to the safety or interests of Swaziland’.

The Sedition and Subversive Activities Act, 1938 makes a speech or publication seditious if it is intended to bring the King, his heirs, successors, or government into contempt or encourage hatred of them. The Act defines ‘publication’ to include ‘all written or printed matter and everything, whether or not of a nature similar to written or printed matter, containing any visible representation or by its form, shape, or in any manner capable of suggesting words or ideas, and every copy and reproduction of any publication’. Also seditious are publications or speeches that intend to encourage hatred or contempt of, or to excite disaffection against the administration of justice in Swaziland, to promote feelings of ill-will and hostility between different classes of the population of Swaziland.

The Cape Libel Act, 1882 makes it an offence punishable by two years’ imprisonment or a fine, or both, to ‘publish a defamatory libel’: that is to injure the reputation of a person and expose him or her to hatred, ridicule and contempt.

The Ndlovukati Act, 1968 protects the person of the Ndlovukati (Queen Mother). ‘A person who does or attempts to do, or makes preparation, or conspires with any other person, to do, an act with the intention of bringing into hatred or contempt, or of inciting disaffection or ill will or hostility against, the person of Ndlovukati, shall be guilty of an offence.’

The Obscene Publications Act, 1927 prohibits the importation, making, manufacture, production, sale, distribution, or public exposure of indecent or obscene material. No exemption is granted to material of an artistic, literary or scientific nature. The penalties are a fine, or a prison sentence of up to six months, or both. The Act does not define what it means by the terms ‘indecent’ and ‘obscene’. (Presumably this is meant to refer primarily to pornographic material.)

The Magistrate’s Courts Act, 1939 grants magistrates the power to hold trials in camera or to exclude females, minors and the public generally ‘in the interest of good order or public morals’. The Criminal Procedure and Evidence Act of the same year extends this power of the magistrate to the preparatory examination phase of a case. The Act adds a further reason which may justify in camera proceedings. A magistrate may decide it is in the interests of “the administration of justice”.

The Proscribed Publications Act, 1968 empowers the Minister for Public Service and Information to ban publications ‘if the publication is prejudicial or potentially prejudicial to the interests of defence, public safety, public order, public morality or public health.’

The Books and Newspaper Act, 1963 prohibits anyone from printing or publishing a newspaper in Swaziland unless the editor of the newspaper is resident within Swaziland and without a registration certificate issued by the Registrar of Books and Newspapers. Where a newspaper has more than one editor, the chief editor has to be resident in Swaziland. The effect of this is that newspapers have to be locally controlled and registered in order to be disseminated in Swaziland.

The Cinematograph Act, 1920 controls the making and public dissemination of films, and of pictures and placards relating to the films. It is prohibited for anyone to make a film showing African gatherings or African life without the prior permission of the Minister for Public Service and Information. The Act further prohibits films to be made of certain Swazi cultural occasions and celebrations namely the Incwala Day, the King’s Birthday, the Umhlanga (Reed Dance) and the Somhlolo (Independence Day) without the Minister’s written consent. The Minister has an unlimited discretion to grant or to refuse consent.

A particularly draconian aspect of the legislation is that section 6 empowers the Minister to declare any picture to be objectionable (within his complete discretion) if he believes that the picture represents scenes holding up to ridicule or contempt any member of the King’s naval, military or air forces;
- scenes tending to ‘disparage public characters’; scenes calculated to ‘affect the religious convictions or feelings of any section of the public’;
- scenes ‘suggestive’ of immorality or indecency;
- executions, murders and ‘other revolting scenes’;
- scenes of ‘debauchery, drunkenness, brawling, or of any other habit of life not in accordance with good morals and decency’ scenes depicting ‘successful’ crime or violence; and
- scenes which are ‘in any way prejudicial to the peace, order or good government of Swaziland’.

Protection of sources
There are no laws, which specifically refer to the protection of the confidentiality of journalistic sources. The principle of the right of a journalist to protect their sources, which is a crucial element of media freedom and of freedom of expression and information generally, is certainly not respected in Swaziland.

Freedom of Information
Swaziland has no freedom of information legislation. The Official Secrets Act and other restrictive practices restrict the media in their efforts to obtain information and report freely on the activities of government. Access to information from the government and officials depends on goodwill and contacts rather than on any clearly established rules. A Freedom of Information Act is urgently needed in Swaziland.

See also

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