Southern africa regional perspectives background paper prepared by the Media Institute for Southern Africa (misa)


Obstacles to media freedom: the political, social and legal context



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2. Obstacles to media freedom: the political, social and legal context:

With the exception of Swaziland1, the last decade has seen a second wave of democratisation and a rebirth in the region from a political and institutional climate of authoritarian one-party regimes towards an era of multi party democracy and the re-establishment of constitutional governance2. Often this phenomenon has been referred to as a ‘second liberation’. In most of the Southern African countries the institutional developments seemed to have the correct ingredients and precepts necessary for the protection of fundamental human rights, whilst in others this has entailed making modest or nominal provisions. In a few of these countries the process has marked a clean break with the past and a quest to effect, far-reaching innovations to banish the political evils of colonial and apartheid ghosts3. All this seemed to augur well for the thriving of an independent and pluralistic free press. The adoption of the Windhoek Declaration and the inspired principles enshrined it, seemed timely indeed.


Ironically, the record of frequent media freedom violations directed at media houses and the press in general and the reported acts of harassment and intimidation directed against individual journalists within the region, should be seen as a sign of a vibrant and active press; albeit operating under difficult conditions. Within this context, the purpose of this paper is to provide a regional insight of the changing legal, institutional and political terrain and to paint a broad picture of the emerging patterns.

Constitutional guarantees


On a theoretical and institutional level the process of democratic reforms within the region has been accompanied by recognition of the need for the protection of freedom of the media and information in the form of constitutionally entrenched human rights provisions. However regionally there are variations to the theme as the protection regimes afforded to freedom of expression in the constitutions of most of the countries in Southern Africa are not uniform.
The differences in the strength of the relative freedom of expression provisions occur in these areas:

  • the wording and content of the provisions in the protection of media freedoms,

  • the extent of the limitation clauses as regards the restriction of the right to freedom of expression;

  • The protection of correlative rights that are complementary to the enjoyment of media freedoms and freedom of information.

From this perspective an overview of the constitutional guarantees in the region and their efficacy in affording real and meaningful protection to media freedom, certain aspects may be identified as key to the attainment of these rights thus relevant in the enquiry.
In the words of Fidelis Kanyongolo, “Express provision for these specific aspects of media freedom ensures that their effectiveness does not depend on unpredictable judicial definitions of the scope of media freedom. In cases involving national security, journalists should not have to rely on the benevolence of the Judiciary,..”4 How elaborate an expression do these key components of media freedom receive in the constitutions of the region?

Press Freedom Provisions


The traditional approach, which is characteristic of the Westminster Constitutional model proceeds on the assumption that press freedom is an integral part of and is subsumed under freedom of expression protections. This is certainly the case in respect of the Zimbabwean and Tanzanian Constitutions5. In other Constitutions in the region press rights have been articulated as a distinct category of rights deserving of specific and separate protection, whereas in some countries press freedom has been accommodated as a specific right within the definition of freedom of expression6.
As a matter of principle, respect for journalistic confidentiality and the protection of sources are very crucial policy components that should inform the content of constitutional protections for media freedom especially the right to impart and receive information7.
However the Constitution of Mozambique is a pioneering instrument in that it contains an express provision that recognises as a species of professional privilege the right of journalists to confidentiality and non-disclosure of sources8. It should be noted that the South African experience in the light of recent developments concerning the application of ‘reveal-your-sources’ subpoena provisions and the common law duties on potential witnesses called to appear before court and give evidence, suggests a cautionary approach of a ‘qualified privilege’ that creates a scope for broader justification of ‘just excuse’9.

Limitation Clauses and Restriction of Derogation


It is now a well-established position recognised in both international and national instruments is that the right to freedom of expression and by that token, media freedom is not absolute but subject to certain limitations.

In article 19 of the International Covenant on Civil and Political Rights (ICCPR) proclaims these restrictions as follows;

“The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:


  1. For respect of the rights and reputations of others;

  2. For the protection of national security or public order (ordre public), or of public health and morals;10

Further refinement of the limitation criteria in the arena of international and regional standards have been formulated. Principle 1(a) of the Johannesburg principles is one such restatement. It states:


No restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest”
In this regard stricter criteria in further expounding the above requirement have been formulated and absorbed into the body of human rights jurisprudence. One of these tests is the ‘three-part test’ in terms of which restrictions must meet the following prerequisites to be permissible.

  • The interference must be provided for in law; which law must be accessible and framed with sufficient precision as to ensure certainty as to its contents and effect;

  • The interference must be pursuant to one of the legitimate aims set out in Article 19(3) of the ICCPR;

  • The interference must be necessary to secure that object.

What is reasonably justifiable in a democratic society is itself a vexed question which leads to a further enquiry or assessment. The Canadian Supreme Court case of R vOakes11 has set our another test as a guide for assessing whether a restriction is reasonably justifiable: the ‘Oakes Test‘. The limitation to be reasonably and demonstrably justified, it must meet the following conditions:



  1. It must be proportional to the aim or bear some relation to it as follows:

  2. the measures adopted must be carefully designed or concisely formulated to achieve the objective in question; and must not be unfair, or arbitrary or based on an irrational considerations;

  3. even if the means are rationally connected to the objective, should impair as little as possible the right or freedom in question;

  4. There must be proportionality between the effects of the measures which are responsible for limiting the (constitutionally protected rights) or freedom and the objective which has been identified as of sufficient importance12.


It is quite clear that as long as the limitation clauses are drawn in broad and permissive terms, the overall effect is the likelihood of the most pernicious of derogation from fundamental rights protection is great. Yet in the main, whilst most of the constitutions of most of the countries in the region have adopted limitation clauses of varying broadness, few circumscribe or contain clearly defined criteria for the restriction or narrowing of derogation.
A typical example of the most permissive limitation clauses is section 20 (2) of the Zimbabwean Constitution with a long catalogue of limitations13. Whilst it contains the standard qualification that the restrictions are permissible only if they do not exceed what is reasonably justifiable 14in a democratic society, this is couched in the negative:
“…. Except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society”
A sinister aspect of this provision is that it seeks to place the obligation of demonstrating that the restriction is not justifiable in democratic society on the individual seeking to assert the right.
Clearly the Zimbabwean Constitution deviates from the ICCPR in that it permits a wider scope of restrictions than are set out in the Covenant. Similarly broad provisions are contained in the Zambian and Botswana Constitutions.
Despite that the majority of the countries in the region are states parties to the ICCPR, scarcely any attention has been paid to ensuring that their limitation provisions conform to the standards contained in this instruments. Commentators on the subject observe that the Malawi constitution stands as a beacon in the region in this respect in that it narrowly defines the scope of permissible derogation with reference to established international human rights standards whilst prescribing that such limitations must be reasonable and necessary in an open and democratic society15. Not only does it entrench international law in this regard, but also it harmonises the Malawian human rights regime with the content of international law as expounded by jurisprudence16.
The South African Constitution seeks to restrict limitation to freedom of expression and other rights contained in the Bill of Rights to the extent reasonable and justifiable in an open and democratic society. It also provides for derogation from certain fundamental rights including freedom of expression and information in a state of emergency17. Freedom of the press being defined as a part of freedom of expression under that Constitution is equally affected. On the other hand, although The Constitution of Malawi provides for derogation from freedom of expression and information and other fundamental rights in a state of emergency, freedom of the press is not included in the closed list of rights that may be derogated from on grounds of emergency18. It may noted here that the standards adhered to in the Malawian Constitution in this regard are worthy of emulation and would ease the exercise of judicial interpretation in particular and enhance the challenge of media freedom rights through the courts.


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