15 November 1997

Dear Mr Sithole

The FXI is honoured to contribute towards the debate and discussion on the Swaziland Media Council Bill. Attached please find our memorandum on this Bill.

The FXI welcomes the Swazi government’s request for comment on the Bill and we further welcome and applaud our High Commission’s commitment towards involving South African civil society in foreign affairs issues. However, while we respect these initiatives, the FXI wants to make it abundantly clear that we do not wish to compete with the people of Swaziland for the attention of their government.

Journalists and other workers in Swaziland have clearly articulated their criticism of the Bill. They have also held several public protests against the Bill. The government apparently has failed to take cognisance of their views. The FXI thus calls on the South African High Commission to insist that the Swazi government consult and listen to the views of Swazi journalists and media practitioners. We feel it is essential if there is to be media excellence in Swaziland and respect for its practice that the government engage in this consultation.

The FXI is mindful that Swaziland is the only country in the Southern African region which does not have a Constitution, thus failing to guarantee its citizens fundamental human rights such as media freedom and freedom of expression. We are mindful too that currently a Constitutional review process is underway in the country. However, the FXI regards this process as highly problematic since it has been proven to be unrepresentative of all the shades of opinion in the Kingdom.

We feel no constitution, which is meant to be the guiding document of a nation, can be constructed within the context of a repressive environment where people are unable to freely express their view and opinions about what they wish to see in their Constitution. The FXI calls on our High Commission to urge the Swazi government to urgently reconstitute the CRC to ensure that it is open to and representative of all the shades
of opinion in Swaziland. We also call on High Commission to urge the Swazi
government to urgently scrap legislation which bans free expression, free political activity and which infringes on media freedom, in order to create a political environment conducive to a Constitutional-writing process where people are able to freely speak and express their views.

We thank you for the opportunity to contribute to the political process in Swaziland.
 

Yours faithfully
 

Raymond Louw
Deputy Chairperson - Freedom of Expression Institute (FXI)
 

MEMORANDUM ON THE SWAZILAND MEDIA COUNCIL BILL 1997.

At the outset it must be stated that the Bill violates a basic principle of Press Freedom -- that the freedom of the media is indivisible from, and subject to the same legal and moral restraints as, that of the individual and rests on the public's fundamental right to be informed.

This concept of Press Freedom is accepted throughout the world as a standard definition that pertains in democratic countries. Any deviation from that standard immediately places a country at risk of being categorised as one that controls the Press and therefore is not freed. The Bill also violates Article 19 of the United Nations Universal Declaration of Human Rights and there are aspects of it which conflict with the concept of media freedom contained in the statement of principles of the Southern African Development Community.

The concept of Press Freedom derives from the individual's right to freedom of expression and is no greater and certainly not less than that. The media does not aspire to have greater legal powers or rights than the individual because that would diminish, if not destroy, the concept of freedom of expression for the individual and subject the media to political manipulation. By the same token it will not accept that it should be subjected to legal and other restraints which diminish its ability to apply the principles of freedom of expression to its activities.

Detailed objections:

1. One of the objects of the Bill is to "promote responsible standards of journalism". Who will be the judge of "responsible standards". No political party or member of a political party serving that party's political interests is able to define "responsible standards" without aligning them to the aims and interests of the party. Thus "responsible standards" will become not the standards generally accepted by the people but those of the political party in power. It will immediately be conceded that this is undesirable. Indeed, it is generally accepted by the media that the term has no validity when it is imposed on the media by others.

2. Another object is to give effect to a code of ethics for the media. The argument outlined in 1 applies. If it is deemed necessary that a code of ethics should apply to the media it is for the media itself to draw up such a code and for the government to criticise it if it is found wanting. But a code is ineffectual unless it is administered and the manner in which that should be done is by the media itself through a voluntary mechanism such as a Press Council set up by the media itself if it so desires.

3. A third object is to establish a media supervisory body. As in 2. the media can, if it deems it necessary, set up a voluntary Press Council to administer a code of ethical conduct but any supervisory body imposed on the media by a government is unacceptable because it violates the principle of Press Freedom and it subjects the media to controls that are politically motivated and administered.

4. Sections 3 to 10 - Establishment and functioning of the Swaziland Media Council.

4.1 The general principles outlined in items 1 to 3 above apply. The council contemplated by the Swaziland government is an imposition on the media which conflicts with the principle of Press Freedom. It is not a body voluntarily established by the media. Its lay members are appointed by the government and will be seen to be giving effect to the government's views whether they do or do not.

4.2 Its functions -- even those ostensibly related to the promotion and advancement of standards of journalism -- are contrary to the principles of Press Freedom. A body which has five of its seven members persons who have no experience of journalism cannot set standards of journalism and Press Freedom. Nor can it "advance the highest professional and ethical standards" when the majority of its members do not have any experience of practising journalism. The function of ensuring "the protection of the rights and privileges of journalists in the lawful performance of their professional studies" appears to be incapable of achievement as trying to implement such an object may clash with powers contained in other legislation. The council has no powers of authority over any other body but the media. If the enforcement powers outlined in Section 25 is intended to apply to this role, it is submitted that the provisions are unlikely to be achievable. Because the council is not a voluntary body and is weighted with non-journalists it is unacceptable that it should receive, inquire into, consider and discipline journalists which it has found contravening the code of professional ethics. The worst aspect of its functions is to accredit and register local and foreign journalists which is the first step of a pernicious form of attempting to control the media. Registration of journalists gives a government power to decide who shall -- and who shall not -- report the news of the day in Swaziland and this is an unacceptable form of control.

5. Section 11 to 14 - Code of Ethics

5.1 The code is unacceptable because it is imposed on journalists by the government. A further unacceptable feature is the ability of the minister to amend the code. In a democratic country journalists can only be held answerable to a code of conduct drawn up voluntarily by journalists themselves and administered by a voluntary body.

6. Sections 16 to 20 - Register of journalists

6.1 As stated above a register of journalists enables the Media Council and the government to control who shall be and shall not be able to practice as journalists, thus destroying the freedom of the Press. The register as contemplated is unacceptable.

6.2 The qualifications demanded for accrediting journalists, too, are unacceptable. Limiting accreditation to residents of Swaziland means that a journalist from a neighbouring country or overseas who wishes to carry out a professional journalistic assignment will be prohibited from doing so. The relief intended for foreign journalists in Section 18 (4) and (5) is not only unacceptable because it involves an unacceptable imposition on a foreign journalist but because the procedures outlined will render accreditation impracticable from a time point of view. If a journalist does carry out an assignment he or she can be heavily fined and/or imprisoned. This is unacceptable and contravenes the principle allowing for the free flow of information across national boundaries.

6.3 The requirement for a journalist to have a diploma in journalism before being accepted for accreditation is also unacceptable. While a professional qualification may be desirable for a journalist to impose it as a condition of accreditation is a violation of the principle of freedom of expression. Some of the best journalists in the world do not have tertiary educational qualifications.

6.4 Payment of an annual registration fee is an unacceptable imposition on a journalist.

7. Section 19 - Effect of accreditation

7.1 The requirement that an editor or a person in charge of a publication be accredited is, apart from the reasons outlined above, unacceptable because the person in charge may be a non-journalist, such as a businessman, who would not be able to obtain accreditation. This could mean the closure of a publication or a prohibition on the establishment of a publication. Businessmen and other who are not journalists are frequently in charge of a publication or "operate a media establishment". The ability to control publications through this section is substantial and thus a violation of freedom of expression and thus unacceptable. The exemptions contained in Section 20 give extensive powers to the minister to control publications and are thus unacceptable.

8. Section 20 to 23 - Disciplinary proceedings and offences

8.1 The powers to ban a publication (Section 22 c) are extreme and conflict with the general principles stated above and are thus unacceptable.

8.2 The de-registering of a journalist (Section 22 d) is unacceptably harsh and gives power to the government to decide who may or may not practice as a journalist. The fine of Emalangeni 10 000 or five years jail or both is extremely harsh and unacceptable. It must be taken into account that the offence is an ethical one and for a person to be subject to such penalties for such an offence would be regarded as vicious and a form of torture in most democratic societies. The former South African Press Council had powers of fining journalists and publications but they have been dropped from the new system of an Ombudsman and an Appeals Committee on the ground that it is a form of punishment that would not be meted out to any other person except a journalist. It was deemed that publication of a censure or reprimand would be appropriate and would be in a form similar to that of the original offence -- ie publication.

8.3 One of the side-effects of legislation of this kind would be the deterring of people from the craft of journalism. People would hesitate before entering an occupation where they would be subject to penalties not appropriate for any other classes of society.

9. Section 25 - Criminal Liability

9.1 It is uncertain what this section refers to but it appears to give great additional powers to the courts to impose further fines on journalists and publishers. This could mean that a journalist could be punished twice or more severely under this section. The one bright note is that as the punishment is limited to a fine the amount of which is not specified, this may render this section ultra vires. It is, however, sinister and unacceptable. If its purpose is related to Section 6 c, the impression gained is that the potential offences are too vague and therefore it will not be capable of enforcement.
10. Section 31 - Funds of the Council

As the council's duties are extensive the funding required may also be large which means that the accreditation fee paid by journalists may be large and thus a burden on journalists, especially as the fee has to be paid annually. This form of funding is unacceptable.

11. Schedule 1 - The Code of Ethics

11.1 Because this code has been imposed on journalists and does not have their concurrence, it is unacceptable and is rejected. Journalists, as has been stated above, can only be held accountable to a code that they have drawn up themselves and to which they have consented. This code is, therefore, rejected.

There are also serious deficiencies with the code, which, however, I have not dealt with in detail partly because my copy has been obscured in parts.

Finally, the journalists of Swaziland have quite rightly objected strenuously  to this Bill. The government has, apparently, failed to take cognisance of their views. It is essential if there is to be media excellence in Swaziland and respect for its practice that the government consult and listen to the views of journalists. The journalists, themselves, have proposed a voluntary Press Council system. Our view is that the government should withdraw this Bill and give journalists the opportunity of voluntarily regulating their profession.

Raymond Louw  - Deputy Chairperson: Freedom of Expression Institute
15 November 1997