Media Law and Practice in Southern Africa

SWAZILAND
No 17, June 2001
© ARTICLE 19

ISBN 1-902598-41-5

This paper is one of a series dealing with media law and practice in countries belonging to the
Southern Africa Development Community (SADC). A conference addressing this theme was held
jointly by ARTICLE 19 and the Media Institute of Southern Africa (MISA) in Zanzibar in October
1995.

Each paper in the series focuses on a particular country describing current and recent
developments in media law and practice, or a particular theme of wide relevance within the whole
SADC region.

It is hoped that the series will contribute to greater awareness of issues affecting media freedom in
this fast-changing region and will provide an invaluable resource for individuals and organizations
working in this field.

ACKNOWLEDGEMENTS

This report was written by Carolyn Norris. It was copy-edited and typeset by Liz James.

ARTICLE 19 gratefully acknowledges the generous support received from the Swedish
International Development Agency (SIDA). The views expressed do not necessarily reflect those of
SIDA.

ARTICLE 19

The Global Campaign for Free Expression, Lancaster House, 33 Islington High Street, London N1
9LH, United Kingdom

Tel: +44 20 7278 9292, Fax: +44 20 7713 1356, E-mail: africa@article19.org, www.article19.org
ARTICLE 19 - Africa Centre for Free Expression

PO Box 30942, Braamfontein 2017, South Africa

Tel: +27 11 403 1488 Fax: +27 11 403 1517, E-mail: info@article19.org.za, www.article19.org

Media Institute of Southern Africa (MISA)

Private Bag 13386, Windhoek, Namibia

Tel: +264 61 23 2975, Fax: +264 61 24 8016, E-mail: research@misa.org.na, www.misanet.org

CONTENTS

INTRODUCTION

CONSTITUTIONAL PROVISIONS

THE PRESS

BROADCASTING

ELECTIONS

NATIONAL SECURITY AND SEDITION

PROTECTION OF SOURCES

DEFAMATION AND THE RIGHT OF REPLY

TOLERANCE AND INCITEMENT TO HATRED

FREEDOM OF INFORMATION

OBSCENITY

REPORTING OF COURTS AND PARLIAMENT

CONCLUSION
INTRODUCTION
Swaziland is one of only two countries in southern Africa that have not signed the
International Covenant on Civil and Political Rights (ICCPR). The fact that the
Swaziland Constitution, including the chapter on fundamental rights and individual
freedoms, was repealed by the King’s Proclamation of 12 April 1973 further diminishes
respect for human rights and removes many legal safeguards which should, under
international human rights law, be available to all citizens.

Recent cases indicate the urgent need for reform if human rights, including freedom of
expression, are to be respected. In September 1999 a journalist was charged with criminal
defamation. In 2000 other journalists were sacked for the non-violent exercise of their
rights to freedom of expression and association, and a leader of a political party, which
operates despite a blanket ban on all political parties, was charged with sedition. The
sedition charges are still pending.

The print media in Swaziland is severely limited by restrictive practices, including self-
censorship. There are no independent broadcast media, and only one private radio station
which broadcasts religious programmes. Independent journalists are frequently victims of
harassment and in May 2001, two independent newspapers – Nation and Guardian –
were suspended when the government claimed that they had not paid a registration tax.
The police raided the Guardian’s offices and seized copies of one edition to prevent its
circulation. The suspension on the Nation was lifted after two weeks, when a high court
judge ruled the government’s action unlawful, but the Attorney-General appealed against
the verdict and the police raided the Nation’s offices a few days later. The case against
the Guardian was still pending at the time of writing. Some members of parliament
considered the articles which led to the papers’ suspension as an invasion of the King’s
privacy and called for a revival of a draft Media Council Bill which was presented in
1997 and which would introduce government control over all aspects of media practice
and policy. The Bill had been shelved after much criticism from national and
international bodies concerned to defend freedom of expression and pluralism in the
media.

There is general frustration within the political opposition, the independent media and the
trade union movement about the apparent lack of any progress, despite repeated promises
that the process of finding a new form of government is under way. At present, it is
highly centralized around the King who holds full executive authority, appointing the
prime minister and all other members of the Cabinet. Since the 1973 proclamation he has
acquired full legislative and judicial authority as well. Parliament, as amended by the
Establishment of the Parliament of Swaziland Order, 1992, comprises two chambers. The
Senate is made up of ten members elected by the House of Assembly and twenty
appointed by the King. The House of Assembly comprises ten members appointed by the
King, the Attorney-General as an ex-officio member and 55 members who represent local
"Tinkhundla" administrative centres. Each of these centres (an Inkhundla) is headed by
an Indvuna who is directly appointed by the King or by an internal election by Inkhundla
members. Although until recently the individual members of the Inkhundla were elected
by a ‘hand-picked’ electoral college, they are now directly elected, which, along with the
fact that from this pool members of parliament are chosen, has enhanced their
importance.

Over the past decade, there have been a series of royal appointed commissions – the most
important being the Tinkhundla Review Commission, established by decree in 1992,
which recommended retaining the Tinkhundla system but with some reforms to ensure
direct, secret ballots, open procedures for nominating candidates and the involvement of
women. Its recommendation for a written Constitution paved the way for the current
Constitutional Review which was set up by royal decree in 1996 and is due to submit its
report in mid-2001. It is then expected that a drafting committee will be appointed. It is to
be hoped that the new Constitution will reflect the issues raised in this report. The Decree
states that the Commission shall "examine and provide for fundamental human rights and
freedoms of the individual and other rights in the new Constitution and for this purpose
examine any legal instruments or documents that may contain them." However, the
process itself is neither open nor transparent, which seems to indicate a lack of
commitment to the principles of freedom of expression and association; the Decree
prevents any groups from making submissions. A reported statement by the Commission
chairman, Mangaliso Dlamini, in April 2001 seems to indicate little hope for
improvements in respect for human rights. He stated that his team had drafted a
constitution which retained the existing power structure. For any reform to be
strengthened, it is essential that the new Constitution paves the way for implementing
legislation to give force of law to United Nations and Organization of African Unity
(OAU) conventions which have been signed by the government.

CONSTITUTIONAL PROVISIONS
The 1968 Constitution was suspended in 1973 as a result of a Royal Proclamation by the
current King’s father. The King’s Proclamation criticized the Constitution for failing "to
provide the machinery for good government and for the maintenance of peace and order"
and stated that it had "permitted the importation into our country of highly undesirable
political practices". It also abolished the whole second chapter, on the protection of
fundamental rights and freedoms, including those of freedom of expression and freedom
of association and assembly. The relationship between these freedoms is one of
interdependence, in that the exercise of freedom of association and assembly may be
seriously affected by the extent to which freedom of expression is guaranteed. As Drah
rightly points out:

In the absence of freedom of expression ... associations cannot make their

objectives, interests and demands openly known, much less publicise their
activities as well as their views and comments on the government’s
policies and measures.
All that remained of the Constitution was a few sections including those concerning the
exploitation of land and minerals, the succession within the monarchy, financial matters
and some aspects of the judiciary. Perhaps most significantly, the King’s Proclamation
specifically banned political parties "and similar bodies that cultivate and bring about
disturbances and ill-feeling within the Nation". All meetings of a public nature and
processions, which are a vital component of the rights to freely associate and express
oneself, were also banned, except those with prior written consent of the Police
Commissioner. The final paragraph of the King’s Proclamation states:

"Any person who forms or attempts or conspires to form a political party

or who organises or participates in any way in any meeting, procession or
demonstration in contravention of this decree shall be guilty of an offence
and liable, on conviction, to imprisonment not exceeding six months."

Section 2 effectively allows for emergency powers renewable every six months which
permit the King to detain any person "in the public interest" for up to 60 days, which can
be renewed as often as necessary on release, and during which period "no Court shall
have power to enquire into or make any order in connection with any such detention."

According to the King’s Proclamation of 1973, the King has the authority to rule by
decree. For example, the Swazi Administrative Order, 1998 empowers the chiefs’ courts
– traditional courts which remove the right to legal counsel – to hear minor civil and
criminal cases. The defendant may appeal decisions of the chiefs’ court to regional appeal
courts and higher courts of appeal. The main restriction on chiefs’ courts is that they can
only administer customary law "insofar as it is not repugnant to natural justice or
morality" or is not inconsistent with the provisions of any law in force.

This situation results in a dual system of both customary and civil law marginalizing the
role of the judiciary, which should play an important role in defending all human rights
including freedom of expression and association. A recent dispute over the chieftancy
clearly indicates this problem. In October 2000 two Swazi chiefs, members of their
families and supporters were forcibly evicted by the security forces from Macetjeni and
kaMkhweli, despite an earlier ruling by the Chief Justice. The ruling had been rescinded
when the Attorney-General presented an affidavit stating that the King had decreed the
evictions. However, after the evictions, the Court of Appeal ruled that the original ruling
by the Chief Justice had been correct, stating that the courts did have jurisdiction over the
issue.

THE PRESS
In 1997 the Government proposed the Swaziland Media Council Bill, with the stated aim
of promoting responsible standards for all print and broadcast journalists, giving effect to
a code of ethics for the media and establishing a media supervisory body. Although this
Bill appeared to have been shelved after several attempts to discuss its provisions, in May
2001 some members of parliament suggested the planned legislation should be revisited.
The Bill was widely criticized by media freedom organizations and also by a
parliamentary select committee, which criticized the lack of adequate public consultation.
The Bill contained many threats to freedom of expression and incorporated penalties,
including imprisonment, fines and professional suspension, which could be handed down
by a government-controlled Council. The Council was to have seven members, all of
whom would be appointed by the Minister, and could be dismissed in writing by the same
Minister without giving any reasons. Two of them would have been nominated by "the
recognised association governing journalists in Swaziland". The Council would have the
authority to accredit journalists. To be considered eligible for accreditation, the Bill
specified that the person must be a resident of Swaziland, aged over 18 years and have a
diploma in journalism or mass communication from a recognized institution.

ARTICLE 19 has consistently opposed requirements for minimum qualifications for

journalists on the grounds that writing in and for the press is exercising the fundamental
right to freedom of expression. If it were limited to those with academic qualifications,
this would deprive many people of their right to express themselves through this
important medium. The prerequisite of Swazi residency is contrary to Article 19 of the
Universal Declaration of Human Rights which stipulates that everyone has the right to
freedom of opinion and expression and the right to seek, receive and impart information
and ideas through any media and regardless of frontiers. It also runs counter to the
UNESCO/Windhoek Declaration of 1991 which advocates the free movement of
journalists and information. The punishment for either writing without accreditation or
for an editor allowing material to be written by a non-accredited person would be a fine
or a prison sentence of up to five years, or both.

The Council would have the power to decide whether an article was defamatory or
injurious and their conclusion would be accepted in a civil damages hearing as prima-
facie proof. The onus would be on the journalist to prove that it was not defamatory or
injurious. It also states that the "mere act of publication of the defamatory or injurious
matter shall constitute proof of intention on the part of the journalist or publication".

Section 25 of the Bill determined that criminal liability of a corporate body for offences
under the Bill was consequent upon "an act performed by or on instruction or with
permission, express or implied, given by a director or servant of that corporate body".
This would seem to undermine normal criminal law provisions that intent has to be
strictly proven, not simply implied, as well as the basic principle stressed by international
courts that governments must exercise restraint in using criminal remedies when
restricting fundamental rights. This recommendation recognizes the fact that the
criminalization of a particular activity implies a clear state interest in controlling the
activity and imparts a certain social stigma to it.

There is no generally accepted Code of Ethics that unites journalists in Swaziland. A

Code of Ethics for Swazi Journalists was reportedly agreed upon at a consultative
meeting on the formulation of communication policies and the setting up of a National
News Agency in Swaziland (held in 1992 at the University of Swaziland), but it has not
become a working document among journalists. A draft code of ethics formed part of the
proposed Media Council Bill. There are currently moves by various groups, including the
Swazi National Association of Journalists (SNAJ), to establish a code of ethics, but none
has been finalized.

BROADCASTING
The licensing of radio broadcasting is regulated by the Swaziland Radio Regulations,
1992, which modify the Posts and Telecommunications Corporation Act, 1983. It is the
Minister of Natural Resources and Telecommunications who effectively holds the
regulatory powers and the authority to issue licences. S/he is under no obligation to
respond to applications within a specified time limit. Under Section 12 of the
Regulations, both the licensing authority and the Minister (who are effectively the same
person) may at any time revoke or suspend any licence:

(a) if the licensee fails to comply with any of the provisions of the Act or of these
Regulations or any condition of the licence; or

(b) where it appears that such revocation or suspension is expedient in the public interest.

In such circumstances, the licence fee is non-refundable. There is no right of appeal

against decisions.

ARTICLE 19 was informed by the Attorney-General in March 2001 that five licensing
requests were currently before the Cabinet for decision. It is not clear whether there is
any legal provision for Cabinet involvement in such decisions.

There is currently a government monopoly on both television and radio programming.

There are two government-owned radio stations and one private station which only
broadcasts religious programmes. Swaziland Television Broadcasting Corporation
(STBC), which is officially a parastatal body, appears to be closely controlled by the
government. In March 2000, 32 staff members were sacked by the STBC board of
directors for strike action the previous October, despite the findings of a commission of
inquiry that they were not guilty of an illegal strike.

In late March 2001 a new satellite television station, Channel Swazi, which appears to be
close to the government, was launched. S’fiso Zwane, the channel’s co-ordinator,
explained its aims as "informing the continent impartially about the kingdom as the
foreign media only gets across one side of the story". It also aims "to promote and
strengthen investment and tourism in the kingdom". King Mswati III’s senior wife,
Sibonela Mngomezulu, reportedly has a weekly gospel show on the channel. It is not
clear what procedures were followed to license this television station.

ARTICLE 19 believes that the process for allocating broadcast licences should be
transparent, fair and non-discriminatory and that licences should be allocated by a body
independent of the government. The Swazi legislation requires urgent review to reflect
these principles. In addition, licence applications should be made public, so that the merit
of the application and the motivation for decisions become matters of public knowledge
and debate. The decisions reached should also be made public.

ELECTIONS
The election process itself is tightly restricted in Swaziland, as political parties and public
meetings are banned. Also, as there are no direct elections to the higher parliamentary
chamber and ten people in the lower chamber are appointed by the King, it is only the
remaining 55 who are directly elected. This limited form of direct election was a reform
introduced in response to recommendations of the 1992 Tinkhundla Review Commission.
These members are chosen to represent the various Tinkhundla – whose head can be
directly appointed by the King or elected by Inkhundla members.

There is no provision in law for an independent electoral commission, which in many

countries enforces rules in connection with equal access for political parties to the media
during election campaign periods. In Swaziland, the Establishment of the Parliament of
Swaziland Order, 1992, which is a King’s Order-in-Council, stipulates that the Chief
Electoral Officer or Umphatsi-Lukhetfo, who is appointed by the King, may act as an
independent commission. This is in line with the 1992 Tinkhundla Review Commission
recommendation but it is difficult to see how a royal appointee can be genuinely
independent.

NATIONAL SECURITY AND SEDITION

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
penalty is a fine or a prison sentence of up to five years, or both. To convict a person
under this Act, it is not necessary to prove that the accused was guilty of any particular
act, but merely that "it appears, from the circumstances of the case or the conduct of the
accused, that his purpose was a purpose prejudicial to the safety or interests of
Swaziland".

In accordance with the Sedition and Subversive Activities Act, 1938, a speech or
publication is 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" in
very broad terms: it "includes 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.

However an act, speech or publication is not seditious if it intends to:

a. "show that His Majesty has been misled or mistaken in any of His
measures;

(b) point out errors or defects in the government or constitution of Swaziland as by law
established or in legislation or in the administration of justice with a view to the
remedying of such errors or defects; or

(c) persuade His Majesty’s subjects or the inhabitants of Swaziland to attempt to procure
by lawful means the alteration of any matter in Swaziland as by law established; or

(d) point out, with a view to their removal, any matters which are producing or have a
tendency to produce feelings of ill-will between different classes of the population of
Swaziland."

Any person found guilty of sedition may be fined and sentenced to two years’
imprisonment for a first offence and three years’ on a subsequent offence. Mere
possession of a seditious publication may lead to a fine and imprisonment for one year
for a first offence and for two years for a subsequent offence.

In November 2000, the president of the banned People’s United Democratic Front, Mario
Masuku, was arrested and charged with sedition under Section 4(1)(b) of the 1938 Act,
for having uttered allegedly seditious words. He was held for five days before being
granted bail. His arrest followed a march to the Prime Minister’s office to deliver a trade
union declaration. He was charged with sedition for allegedly saying: "Phansi ngembuso
WaMswati" in a public place and in the presence of the King’s subjects. It was also
alleged that in September 2000 he had stated that: "churches, schools, colleges,
universities everywhere and in every house should join in overthrowing the Tinkhundla
system of government".

The far-reaching Sedition and Subversive Activities Act, 1938 became an even greater
threat to human rights following an amendment in 1987. The 1987 decree removed the
following limits on legal proceedings: Section 6(1) which had stipulated that no
prosecution was possible for an offence committed more than six months previously, and
Section 6(2) which had stated that the written consent of the Attorney-General was
required before any prosecution under the Act.

A similar law was impugned in England by the Privy Council, which stated in an appeal
from Antigua and Barbuda:
 In a free and democratic society it is almost too obvious to need stating
that those who hold office in government and who are responsible for
public administration must always be open to criticism. Any attempt to
stifle or fetter such criticism amounts to political censorship of the most
insidious and objectionable kind.... It is no less obvious that the very
purpose of criticism levelled at those who have the conduct of public
affairs by their political opponents is to undermine public confidence in
their stewardship and to persuade the electorate that their opponents would
make a better job of it than those presently holding office… (T)heir
Lordships, cannot help viewing a statutory provision which criminalises
statements likely to undermine public confidence in the conduct of public
affairs with the utmost suspicion.

In addition, Section 8 of the Public Order Act, 1963 which controls public gatherings and
prohibits the use of flags, banners and emblems, reinforces the role of the security forces
and others in preventing "seditious acts":

"Nothing contained in this Part shall be construed as affecting or

derogating from any right conferred or duty imposed upon a chief, police
officer or member of the public under any other law, including the
common law, to assist in the dispersal of riotous gatherings or the
prevention and suppression of riotous and seditious acts."

ARTICLE 19 believes that any restriction on expression or access to information that a

government seeks to justify on grounds of national security must have a genuine purpose
and demonstrable effect of protecting a legitimate national security interest, and must be
"necessary" in a democratic society. It is not justifiable to base such restrictions on vague
and subjective phrases such as "in the public interest" or "prejudicial to the safety or
interests 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.

In March 2000 the Swazi Observer, a newspaper owned by a royal trust, was closed,
reportedly because of financial difficulties. Some 70 staff were sacked. The real reason
for closure seems to be because the paper was becoming too critical of the government.
Staff had reportedly been under increasing pressure to tone down their stories, and there
was a concerted approach to force journalists to reveal their sources. The paper re-opened
in February 2001, but many of the senior staff were not re-instated. A case for unfair
dismissal is being pursued before an industrial tribunal.
In March 2001, the Editor of the Times of Swaziland was subpoenaed to testify against
six trade union leaders who were charged with contempt of court for a two-day work
stoppage in November 2000 which went ahead despite a court ruling which had outlawed
the strike. The editor was himself threatened with contempt of court if he did not appear
to clarify the sources of the articles which featured in his newspaper, so he did in fact
appear in court.

Mozambique provides a positive example of constitutional protection of the right of a

journalist to maintain the confidentiality of his or her sources. Section 74(3) of the
Mozambican Constitution states that freedom of the press shall include "the protection of
professional independence and confidentiality." The new Constitution of Swaziland
should provide a similar guarantee.

DEFAMATION AND THE RIGHT OF REPLY

Criminal defamation remains part of Swaziland’s laws dating back to Roman Dutch
common law which was in force during the colonial period. Among these laws was the
Cape Libel Act of 1882 which made it an offence punishable by two years’ imprisonment
or a fine, or both, to "publish a defamatory libel". Under the Act, the term "defamatory
libel" bears the same meaning as in English law. The defences available are: (a) truth and
public benefit; (b) fair comment, and (c) privilege.

In addition, The Criminal Procedure and Evidence Act, 1939 refers specifically to libel
and defamation as follows:

Section 150: No count for publishing a blasphemous, seditious, obscene or

defamatory libel or for selling or exhibiting any obscene book, pamphlet,
newspaper or other printed or written matter, shall be open to objection or
deemed insufficient on the ground that it does not set out the words
thereof;

Provided that the court may order the particulars to be furnished by the
prosecution stating what passages in such book, pamphlet, newspaper,
printing or writing are relevant in support of the charge.

Section 156:

(1) Any person charged with the unlawful publication of defamatory

matter, who sets up as a defence that the defamatory matter is true and that
it was for the public benefit that the publication should be made, shall
plead that matter specially, and may plead it with any other plea except the
plea of guilty.

ARTICLE 19 calls for these archaic legal provisions to be repealed. It believes that
criminal sanctions are not an appropriate punishment in cases of defamation. The state
should take no part in the prosecution of defamation cases regardless of the status of the
plaintiff. Criminalization of a particular activity implies a clear state interest in
controlling that activity. The protection of one’s own reputation is by definition a private
interest.

Contrary to a growing international consensus which generally accepts that no special

protection should be afforded for public officials, Swaziland offers specific protection for
the person of the Ndlovukati (Queen Mother). In the January 1968 law, entitled ‘The
protection of the person of the Ndlovukati Act’:

(2) 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 and liable, on conviction –

a. for a first offence, to imprisonment for a period not exceeding

two years or a fine not exceeding six hundred rand, or both, and,

b. for a subsequent offence, to imprisonment for a period not exceeding three

years or a fine not exceeding one thousand rand, or both.

As the following case shows, there is even wider acceptance that those in official
positions have need of greater protection. Aside from the specific legal protection, there
is a wider specific assumption in Swaziland that public figures warrant greater protection
for reasons of cultural tradition.

In September 1999 Bheki Makhubu, editor of the independent Times of Swaziland was
arrested for criminal defamation after reporting that the King’s latest fiancée, now one of
his wives, was a high-school dropout. He was released on bail and later sacked from his
job. There were also reports that a new defamation or character assassination law was
being drafted, but this has never been formally presented to Parliament. When Makhubu
appeared in court on 27 September 1999, the prosecution indicated that in addition to the
charge of defamation, there were several aggravating circumstances which would be
taken into consideration, including the absence of any apology, the fact that the statement
was aimed at bringing the royal household into disrepute and that the subject of the
article has a position close to His Royal Majesty, the King of Swaziland. After several
delays, in August 2000 the magistrate insisted that the case should proceed within one
week. However, the prosecution did not appear in court so the charges have effectively
been dropped.

As well as advocating civil action in defamation cases, ARTICLE 19 favours self-

regulation of content by the media. Consistent with the latter, there appears to be no legal
provision for a right to reply and at least one newspaper, Times of Swaziland, has its own
ombudsman. However, this role has done little to protect freedom of expression; in the
case against six trade union leaders mentioned under Protection of Sources, it was
apparently the newspaper’s ombudsman who insisted the publication’s journalists appear
in court.

TOLERANCE AND INCITEMENT TO HATRED

These aspects are covered by other provisions mentioned above. For example,
publications or speeches which 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, are designated
seditious. Also, while stipulating that this should in no way affect or derogate from the
rights or duties of officials or members of the public to prevent or suppress "riotous and
seditious acts", Section 6 of the Public Order Act, 1963 states that anyone who, "in any
place whatever, … has acted or conducted himself in such manner or spoken or published
such words, that it might reasonably be expected that the natural and probable
consequence of this act, conduct, speech or publication would under the circumstances,
be the commission of public violence by members of the public generally or by persons
in whose presence the act or conduct took place or to whom the speech or publication
was addressed" would have committed the common law offence of incitement to public
violence.

ARTICLE 19 believes these offences are defined so broadly that they are open to abusive
application which may stifle freedom of expression. International jurisprudence has
established that with regard to incitement to violence, the offence requires that a direct
and immediate connection be proven between an act, statement or publication and the
violence itself before it becomes a legitimate restriction on human rights.

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. Now that South Africa has
enacted such provisions, ARTICLE 19 hopes that the rest of southern Africa, including
Swaziland, will follow suit.

ARTICLE 19 has produced a set of international principles – to set a standard against

which anyone can measure whether domestic laws genuinely permit access to official
information. They set out clearly and precisely the ways in which government can
achieve maximum openness, in line with the best international standards and practice.
They comprise nine basic principles, including the following:

 freedom of information legislation should be guided by the principle of maximum

disclosure;
 public bodies should be under an obligation to publish key information;
  public bodies must actively promote open government; exceptions should be
clearly and narrowly drawn and subject to strict "harm" and "public interest" tests;
 requests for information should be processed rapidly and fairly;
 meetings of public bodies should be open to the public; and
 individuals who release information on wrongdoing –whistleblowers – must be
protected.

OBSCENITY
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. Possession or ownership of
indecent or obscene materials or objects is similarly punishable by the same Act.
Furthermore, officials may, upon receiving a complaint which they believe to be well-
founded, seize impugned material by force and destroy it where warranted. Such power is
subject to an appeal to the courts by the owner.

The words "indecent" and "obscene" have been rejected in some jurisdictions as being
excessively vague. In the US case ACLU v. Reno, the constitutionality of a statute
employing the word "indecent" without further definition was found to be so
"unconstitutionally vague … as to violate the First Amendment". The court said that
"indecent in this statute is an undefined word which, standing alone, offers no guidelines
whatsoever as to its parameters" and called for "a clear definition, particularly in a
statute, which infringes upon protected speech."

Recent court decisions and other developments in southern Africa have given new
impetus to the need to reform outdated laws relating to obscenity that facilitate the
restriction of freedom of expression. Mostly relics of the colonial period, they are
fundamentally at variance with international human rights standards.

REPORTING OF COURTS AND PARLIAMENT

Section 3 of the Parliamentary Privileges Act of 1967 guarantees freedom of speech and
debate in Parliament and states that this freedom cannot be impeached or questioned in
any court or place outside Parliament.

The Magistrate’s Courts Act of 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 Magistrate’s Courts Act, 1939 also guarantees the public’s right of access to records,
stating that "the records and proceedings of the court shall in all cases be accessible to the
public, under the supervision of an officer of the court at convenient times and upon
payment of such fees as may be prescribed by the rules."

CONCLUSION
The outcome of the ongoing Constitutional Review Commission will set the tone for
future respect for basic human rights, including freedom of expression, in Swaziland.
This requires a Constitution which reflects international freedom of expression standards
and principles. These include provisions for free and open elections at local and national
level, a self-regulating and diverse media which is immune from criminal sanctions in its
professional work, and good governance and mechanisms whereby the public can hold
the government and other branches of authority fully accountable for its actions. The
distinctive roles of traditional courts must also be clearly defined to remove any
ambiguity.

An important step would be for Swaziland to give legal force to the international
standards it has signed, for example the African Charter on Human and Peoples’ Rights,
and urgently ratify others such as the International Covenant on Civil and Political Rights
and the Convention on the Elimination of All Forms of Discrimination against Women.
These would provide the recourse currently lacking for Swazi citizens to defend their
rights.

It is essential that a concern to preserve the unique culture and tradition of Swaziland is
not used to deny any Swazis the fundamental rights that should be enjoyed by all peoples
without exception. At constitutional level, it is important that Article 19 of the
International Covenant on Civil and Political Rights is fully incorporated. To complement
the constitutional provisions, further amendments in law and practice are essential. Laws
must be modified to bring them into line with international and regional standards, in
particular those governing defamation and sedition and the Official Secrets Act which
restricts access to information. The Media Council Bill should be definitively shelved
along with any other proposals for state regulation of the media. Finally, it is important
that there is an end to the harassment of the print and broadcast media and that urgent
attention is paid to reforming public broadcasting.