Nevertheless, it is encouraging to note that there have been developments in the laws of a number of countries in the sub-region which augur well for the consolidation of media freedom. Such developments include the enhancement of the constitutional protection of media freedom, stricter definitions and interpretations of national security, and the requirement in specific cases for substantiation of claims that the exercise of media freedom is likely to prejudice national security.
Constitutional Protection
While in countries such as Tanzania and Zimbabwe media freedom must be understood as being subsumed within the guarantee of freedom of expression, and the constitutions of Namibia and South Africa expressly state that freedom of expression includes freedom of the press and other media, the constitutions of Malawi and Mozambique provide for freedom of the press as a fundamental freedom distinct from freedom of expression generally.
The constitutions of Malawi, South Africa and Mozambique expressly protect the right of access to information held by the state. The Constitution of Mozambique goes further and expressly extends the protection to other key aspects of media freedom such as the protection of professional independence and confidentiality.
Express provision for these specific aspects of media freedom ensures that the press does not rely on the benevolence of the judiciary which, in the event of conflict, might side with the government. Even if media freedom is given broad protection under a constitution, it may easily be curtailed on the grounds of national security if this is not strictly defined. The Constitution of Malawi provides a model which permits only such limitations as are reasonable and recognized by international human rights standards. This is not a requirement in some other countries of the SADC. The Malawi Constitution also does not permit any derogation from freedom of the press even in states of emergency. Although it is recognized that in some cases the state may have a right to curtail media freedom some SADC legal systems require that claims of national security be substatiated before they can be permitted to prevail over media freedom.
Narrowing the Scope of Permissible Restrictions
While it is conceded that there are instances in which it is legitimate to restrict the exercise of media freedom on the grounds of national security, it is equally true that if national security is defined too broadly, media freedom may be easily abrogated on dubious grounds masquerading as national security interests.
The Malawi Preservation of Public Security Act is a case in point. It defines public security to include the securing of the safety of persons and property, the maintenance of supplies and services essential to the life of the community, the prevention and suppression of violence, intimidation, disorder and crime, the maintenance of the administration of justice, and the prevention and suppression of mutiny and rebellion and concerted defiance of and disobedience to lawfully constituted authority and the laws of Malawi.
Another example is the Subversive Activities Act of Swaziland which makes it a criminal offence to publish anything derogatory of the King or the Queen Mother.
The law of sedition has also been extensively used in the sub-region purportedly for the protection of national security. Typically it makes it an offence to publish anything which may promote ill-will or disaffection towards the government. The narrowing of the scope of sedition would make it harder for governments to abrogate media freedom on the basis of bogus or exaggerated claims. Clearly, only acts or expressions which undermine the territorial integrity or institutions of the state or pose a grave threat to the safety of its population by the use or threat of force should be regarded as a legitimate national security interest. Another area of law in which the broad definition of national security interests unduly restricts media freedom is that which relates to official secrets. It prohibits journalists from having access to "official secrets" on the grounds that access to, or publication of, such secrets compromises national security. An example of such official.
The Official Secrets Act of Malawi, for example, defines official secrets to include any sketch, plan, model, article, note or document which relates to any railway, road, way or channel or other means of communication by land or water, which might be useful to the enemy. This legislation need only be cited for the potential for its abuse to be demonstrated. A common feature of the application of "official secrets" legislation in SADC countries is the obligation placed on journalists to disclose the sources of any "official secrets" which they publish.
With regard to the right of access to information, disclosure, rather than withholding, of information should be the rule, with the public interest in the right to know being a primary consideration, and the exceptions being specifically defined and justified. The narrowing of the scope of national security interests in legal definitions and interpretations needs to be complemented with rules on the burden and standard of proof which are consistent with the high degree of protection given to media freedom by most national constitutions in the region and by international human rights law.
Burden and Standard of Proof
In a number of SADC countries, the law places the onus on a journalist who publishes something to show that it did not threaten national security where this is alleged by the state. In Malawi, for example, a person charged with publishing any ?official secret? for any purpose prejudicial to the safety and interests of the state bears the burden to prove that the publication was not done for such a purpose.
It is not conducive to media freedom to require that the burden should be on the advocate of that freedom to prove that a particular publication does not threaten national security. To ensure protection of media freedom, the law should place the burden of proof on those who wish to abrogate the freedom on the grounds of national security.
Similarly, anyone who seeks to withhold information held by the state under the guise of 'official secrets' should bear the burden of proving that this is justified on the grounds of national security. This is because gaining access to official information is also a fundamental right guaranteed by the Constitution and required by international human rights instruments. Where a balancing exercise needs to be carried out between the conflicting interests of freedom of expression and national security, this exercise must be done by the courts which should determine whether the claims of national security are justified in law and in fact. The government must not be the final arbiter as to what constitutes threats to national security.
Essential Measures for Protecting Media Freedom
Since the freedoms of expression and information are vital to a democratic society and essential for the exercise of other human rights and fundamental freedoms, media freedom should be expressly guaranteed constitutional protection. It and should be interpreted to include the right to have access to information and for journalists not to have to disclose their sources of information.
National security considerations which may be used as grounds for restricting freedom of expression and information must be drawn narrowly and with precision.
Legislation and its judicial interpretation and application should limit the meaning of national security to the preservation of territorial integrity, the safety of the population, and the effective functioning of a legitimate and democratic government against the use or threat of force. It should not include the preservation of such nebulous interests as national unity, national honour, or respect of national political leaders or symbols. In conclusion, it is important to note that despite the constitutional protection accorded to it, media freedom, continues to be under constant threat in most SADC countries. In some cases the freedom is not sufficiently entrenched in the constitutions; in other cases statutory and case law permit wide exceptions to media freedom on the grounds of national security.
The situation is also made more hostile to media freedom by laws which place the burden on journalists to prove that particular publications do not undermine national security. This uncertain picture needs to be changed through the adoption by SADC legal systems of positive standards such as those highlighted in this paper. Doubtless the systems of individual countries will need to retain a margin of appreciation but one within which it should be recognized that media freedom is essential to democracy and needs to be protected from bogus or exaggerated claims of national security.
Fidelis Edge Kanyongolo
Lecturer in Law, University of Malawi
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