Kollapen cautioned against allowing the rights to freedom of expression and media freedom to become the preserve of the elite. He stressed that these freedoms cannot be ends in themselves but should be used to advance the right to know; to inform citizens so that they can make informed choices; and to hold government accountable. The political context in which the delegates worked was discussed frequently during the conference. The separation of powers came in for scrutiny. The abuse of power was due generally to a ruling party holding a large majority in Parliament thereby being able to pass, or keep in place, restrictive legislation.
There was also a problem with unenforceable bills of rights in most of the constitutions. It was recommended that countries work towards exploring mechanisms to ensure that freedoms contained in their constitutions, including freedom of expression, were enforced. One way of doing so was to found constitutional courts charged with interpreting and enforcing fundamental rights. Lack of an independent judiciary in most countries also contributes to the poor protection of freedom of expression and media freedom in the region. In many cases, the executive still impacts heavily on the appointment, promotion and retirement of members of the judiciary thereby compromising its independence. Without such independence, media lawyers often choose to live with bad laws than test them in the courts at great expense and with little chance of success.
This is not to say that that there have been no victories for free expression in the latter two groups: indeed, some of the most important have been won in countries with extremely hostile conditions, such as Zambia, Tanzania and Botswana, where the governments= proposed Media Council Bills were recently fended off. Conversely, in those countries where free speech seems to be expanding, there have been setbacks such as the recent banning of a book before publication by a South African Court [see SAMLB Vol. 3 No.1]. Ironically, every country, except Swaziland, has a constitutional guarantee of freedom of expression (and, more rarely, access to information). However, there are frequently widely worded limitations clauses.
In Tanzania, Mozambique and Kenya, constitutional reviews are currently underway which might see increased protection of media freedom. In every country, legislation exists which is unconstitutional and which should be amended or repealed. Laws, which were carried over from colonial times without legislative review often pose serious problems for freedom of expression. Most of these deal with access to information, sedition, national security and censorship. There is often no privilege for journalists to protect confidential sources. Forcing journalists to reveal sources threatens media freedom, exposes journalists to physical danger once they are labeled informers and causes vital sources to dry up.
Governments throughout the region are continually evolving new forms of censorship to thwart free expression and access to information. Among these in the escalating use of the judicial system by governments and individuals to gag the media. In many countries, among them Kenya, Tanzania and Zambia, the state is increasingly using prior restraint orders against the media. Frequently applications for injunctions are heard and granted ex parte, with no return date being set. Defamation law is used extensively in almost every country by government officials as a means of silencing critical voices.
If they are successful, damages awards against the newspaper are usually enough to put it out of business; even if they are unsuccessful, the cost of defending itself can often lead to the paper=s closure. The law of defamation is in urgent need of review in every country in the region since it offers undue protection to public figures and frequently leads to self-censorship. Informal and indirect censorship is on the increase and should be consciously noted by media lawyers. This includes the government withholding advertising from newspapers that are critical of its policies; raising the price of newsprint; subsidizing state-controlled media so that it has an edge over its competitors; and heavily taxing the purchase of newspapers. Lawyers pointed out the need to develop arguments to challenge informal and so-called Aeconomic@ censorship through the courts.
Media lawyers and journalists need to address the issues of monopolies, transparency in the appointment of those tasked with the regulatory framework, autonomy of regulating and licensing authorities, and the accountability of regulatory authorities to Parliament (as opposed to the Minister or the President).
Finally, it was recognized that although litigation is a useful way to defend or advance freedom of the media, it is costly. Legal defence funds for the media should be established wherever possible. Litigation is only one of a number of strategies available. The other, which is often neglected, is the education and sensitization of judicial officers.
In Zambia, the increasing willingness of the courts to have the media present at their proceedings is a positive step. As is the unprecedented step by the Ugandan president to phone in to a live radio talk show recently to defend his government=s controversial land bill, rather than attempting to silence the station. There have also been several positive decisions handed down by courts in the regions in defence of freedom of expression and media freedom. Delegates at the conference expressed satisfaction with the role that the Media Law Briefing was playing in informing them about developments in this field, and as a tool for networking.
Alex Kuhn
Conference Rapporteur
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