- South African History
South Africa was too, evolving out of the apartheid era. In 1994 “The ANC-led government proceeds to implement the Reconstruction and Development Programme (RDP), adopted in as the basic policy framework guiding the transformation of the country” South African History Online. “Main Chronology”. South African History Online website. 2003. Available at:
.
15 April 2003. Negotiations were initiated by the ANC resulting in the first elections based on one-person-one vote. The ANC won these first historic elections with a vast majority. 62,6% of the more than 22 million votes cast were in favour of the ANC. That year, Nelson Mandela is inaugurated as the president of South Africa and in 1996 the new South African Constitution is in full effect. The ANC won the second democratic election in 1999 and Thabo Mbeki is inaugurated as the second president of democratic South Africa. South African History Online. “Main Chronology”. South African History Online website. 2003. Available at: .
From the above history, one may see that both African countries develop and maintain as democratic states. McQuail(1987: 121-123) states; for a country to be democratic, a free press is critical. On the surface, a government may appear to be democratic, but act in an un-democratic manor. Whether democracy is a front for these countries or not, the following case studies will allow for the social constructionism of the countries, in terms of freedom of speech and freedom of the press.
- Conclusion
This background information serves as an introduction into the political alignment of Zambia and South Africa. The following section is a more in depth evaluation of the respective countries’ press, freedom of expression and associated laws.
- The Press Laws
- Introduction
Every country is governed by laws. The press is an aspect, which is extensively reviewed by the government, in terms of law making. The laws a country chooses, reflects the kind of political system that country is under. The following section encompasses several press and freedom of expression laws found within Zambia and South Africa.
- Zambian Press Laws
Zambia has a host of laws that contrast themselves, in promoting as well as prohibiting the individuals right to freedom of expression. The following articles and sections are found in the 1996 Zambian Constitution, found here; Zambian Legal Information Institute. "Constitution of Zambia, 1996". Zambian Law Server website. 2003. Available at .13 April 2003.
Article 20: Freedom of Expression:
Zambian press freedom is an aspect, which is deducted from the respective freedom of expression right;
“20(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.
20(2) Subject to the provisions of this Constitution no law shall make any provision that derogates from freedom of the press."
However article 20(3b) gives rise to a great potential of limitation in terms of the freedom of expression. “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision;
20(3b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television…”
“reasonably required” and ”reasonably justifiable in a democratic society” are subjective matters, as they have not yet been defined by the Constitution.
Article 25: Derogation from fundamental rights and detention
This article has been included due to its hindering nature towards Zambia’s freedom of speech. The derogation of the Zambian individual’s right to freedom of expression will occur should the following happen;
“the Republic is at war or when a declaration under Article 30: Declaration of public emergency is in force, or measures for the purpose of dealing with any situation existing or arising during that period; and nothing done by any person under the authority of any such law shall be held to be in contravention of any of the said provisions if it is shown that the measures taken were, having due regard to the circumstances prevailing at the time, reasonably required for the purpose of dealing with the situation in question.”
Article 78: Exercise of legislative power of Parliament
“78(7)No law made by Parliament shall come into operation until it has been published in the Gazette, but Parliament may postpone the coming into operation of any such law and may make laws with retrospective effect.”
The above law combined with the fact that there is a lack of constitutional obligation to gazette a bill, before it becomes a law, gives rise to out of print statutes and debates as well as a lack of up-to-date law updates.
The Zambian Penal Code:
The following are descriptions of various penal codes, which pertain to Zambia’s freedom of expression, or the hindrance of it.
Section 53: the President has the discretion to declare any publication or series of publications, whether published within or outside Zambia, to be a prohibited publication if he is of the opinion that such a publication is not in the public interest.
Section 54: any person who imports, publishes, sell or offers for sale or distribution or reproduces a prohibited publication or an extract from it is guilty of an offence and liable on conviction to two years' imprisonment. Anyone who unknowingly receives a prohibited publication is required, once he or she becomes aware of this fact, to surrender the publication to the nearest police station. The penalty for failing to do so is imprisonment for one year. Under this arrangement the President is effectively the moral judge of what is and what is not good for the people.
Section 56: any officer of the Zambia Postal Services, Zambia Revenue Authority, police officer above the rank of Assistant Inspector, or any person appointed by the President may detain, open and examine any package or article which he or she suspects to contain any prohibited publications and may detain the sender or recipient during examination of the package.
Section 67: it is an offence, punishable on conviction by up to three years' imprisonment, for anyone to publish, whether orally or in writing, any statement, rumour or report which is likely to cause fear and alarm to the public or disturb the public peace, knowing or having reason to believe that such statement, report or rumour is false. This provision is especially unfair and unreasonable in a country where those in power have no obligation to answer inquiries from the press or public and where there is no legislation enabling people to have access to government information.
Section 69: it is an offence for anyone to publish, with the intention of bringing the President into hatred, ridicule or contempt, any defamatory or insulting matter, whether in writing, print, word of mouth or in any manner. The penalty for this offence is imprisonment for up to three years
Protection of Sources:
Journalists are under an obligation to disclose their sources if requested to do so, otherwise they may be jailed for contempt of court. This seriously undermines the role of the media in acting as a watchdog on government, which is a vital role in a democratic society
- South African Press Laws
The following laws come from the South African bill of rights, of the 1996 Constitution, which can be found here Constitution of the republic of South Africa. “South Africa’s Amended 1996 Constitution”. Umwebi resource of South African Government Information website. 2001. Available at . 13 April 2003. and ohannessen, L, Cohen T. 'Media Law and Practice in Southern Africa No. 1 SOUTH AFRICA'. Article 19 website. 1996. Available at . 12 April 2003.
Section 8: Application
For the specific relationship, which involves the government and the press, section 8: Application, contains several pertinent laws;
8. (1) “The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all
organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is
applicable, taking into account the nature of the right and the nature of any duty imposed by the
right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court;
- in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
- may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature
of the rights and the nature of that juristic person. “
Section 16: Freedom of Expression
The first and foremost law of South Africa, in terms of the press, is that of section 16: Freedom of Expression. This right is defined accordingly;
“16. (1) Everyone has the right to freedom of expression, which includes
- freedom of the press and other media;
- freedom to receive or impart information or ideas;
- freedom of artistic creativity; and
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academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to
- propaganda for war;
- incitement of imminent violence; or
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advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. “
Although this right omits the ideas of impartiality and diversity, it does explicitly guarantee the freedom of expression, by specifically referring to “freedom of the press”.
Section 32: Access to Information
This section makes South Africa one of the very few countries in the world which, at the constitutional level, that provides for a free-standing, albeit not absolute, right of access to government information;
“32. (1) Everyone has the right of access to
- any information held by the state; and
- any information that is held by another person and that is required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state”.
Section 36: The Limitation of Rights
“36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including
- the nature of the right;
- the importance of the purpose of the limitation;
- the nature and extent of the limitation;
- the relation between the limitation and its purpose; and
- less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. “
This right provides for derogation from the Bill of Rights in the event that a state of emergency be declared. But such derogation is permitted only in closely defined circumstances, to the extent that the derogation is strictly required by the emergency and the relevant legislation is consistent with South Africa's obligations under international law. A further technicality is that the derogation is limited to certain rights and these rights only, while not affecting others. E.g. the Right of Life would never be derogated while the Right to Freedom of Expression would.
Restrictive Laws Against the Press
Albeit South African press seems relatively free, there are several laws which in fact hinder/restrict freedom of expression. Such laws are the Defence Act (No. 44 of 1957), the The Internal Security Act (No. 74 of 1982), The Armaments Development and Prodcution Act (No. 57 of 1968) and several others. The Defence Act entails clauses such as section 101, ‘the President may censor all forms of media 'during operations in defence of the Republic or for the prevention or suppression of terrorism or for the prevention or suppression of internal disorder’. Section 118 prevents the media from publishing information relating to military activities, Section 119 imposes a prohibition on taking photographs or making sketches of military installations and Section 121 makes it an offence to incite a member of the military to neglect or disobey an order. The Internal Security Act (No. 74 of 1982), states provides for the banning of organisations, publications, individuals and gatherings in the interests of 'national security'. It further provides for various forms of detention without trial, criminalized Communism and provides for the crimes of sabotage and terrorism. Finally, the The Armaments Development and Production Act (No. 57 of 1968), prohibits the disclosure of any information relating to the acquisition, supply, marketing, import, export, development, manufacture, maintenance or repair of or research in connection with armaments. With a host of further laws to curb freedom of speech, the kind of democracy in South Africa, should be questioned.
- Conclusion
From the above laws, one may understand why each African country has employed their specific press system. These press laws worked in conjunction with the following case studies, will allow one to clearly and fully define the two countries’ press systems, according to the normative press theories.
Case Studies and Applications
- Introduction
The following case studies will serve as evidence to prove the normative nature of the respective countries’ press system. Between 1994 and 2003, several instances within Zambia and South Africa, allow for the indication and definition of each countries’ press system. To fully acquire this definition, several cases have been selected and will be presented. The following evaluations will encompass a description of the given case study and how the country’s press laws are applied.
- Zambian Case Studies
Case Study: William Banda v. the Attorney General
“The petitioner was a member of the United National Independence Party (UNIP). His party had applied for police permits, pursuant to the provisions of Section 5(4) of the Public Order Act, to hold public rallies. On all occasions his name had been deleted from the list of speakers with no reasons given. The petitioner argued that his freedom of expression had been violated and sought a declaration by the court that his freedom of expression had been violated by the conduct of the regulating officer. It was argued for the state that the petitioner was a non-Zambian, hence he should not be permitted to address rallies, that members of the ruling party, the Movement for Multi-Party Democracy (MMD), were against his speeches and that the petitioner's previous speeches were provocative.”
Article 19. 'Media Law and Practice in Southern Africa No. 7 ZAMBIA'. Article 19 website. 1998. Available at . 12 April 2003.
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The above case study clearly indicates that the Zambian state is one with a totalitarian nature. The government is in total control over the freedom to express and anyone or anything which does not coincide with the ideology of the government is be suppressed. Here censorship is used, and according to the authoritarianism normative press theory, censorship is advocated.
The People v. Bright Mwape and Fred M'membe
“The defendants have been charged with the offence of insulting the President. The accused are respectively the news editor and managing editor of the independent newspaper, The Post. They had published a story in which they quoted a Deputy Minister calling the President "a twit". Under Section 69 of the Penal Code (see chapter 4.2) it is an offence for anyone to publish, with intent to bring the President into hatred, ridicule or contempt.
It was argued on behalf of the defendants that Section 69 of the Penal Code was unconstitutional in that it hinders the enjoyment of freedom of expression in relation to the President. The High Court found Section 69 intra vires the Constitution, in that it was necessary to maintain public order, and that the restraint placed on the accused persons was the price they had to pay for being members of society. On appeal to the Supreme Court, all three judges confirmed the High Court's decision and the journalists were pending a facing trial in the magistrate's court for breach of Section 69 of the Penal Code.”
Article 19. 'Media Law and Practice in Southern Africa No. 7 ZAMBIA'. Article 19 website. 1998. Available at . 12 April 2003.
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According to Section 69 of the Penal Code the President exercises executive powers, which naturally provoke criticism. Because of the nature the Zambian political system, being a multi-party system, criticism to undermine political rivals should be a common (and legal) occurrence. However seeing the President represents his government body, prohibiting the censure of the president, prohibits censure on the government. The above deduction is closely related to the authoritarian norms. Here, the press tell of an occurrence where Zambia’s legislation is ignored (“The Deputy Minister herself has not been charged.”). The government declares that the press has undermined the President. Therefore the press has contravened the prevailing morality and political values of the government, yet another authoritarian norm.
Journalists
Case1: The right of journalists to protect their sources
This right has become increasingly important in recent years, especially in the private media. Moreover, in the absence of a statutory obligation on public officials to make information available on request or when otherwise needed, journalists have no choice but to obtain such information from sources within government bodies. This lays them open to prosecution under provisions of the Penal Code and the State Security Act.
If journalists facing prosecution take the witness stand to speak on oath in their own defence, they are open to cross-examination and are under an obligation to answer any relevant question, which may include disclosing their sources of information. The courts in Zambia do not recognize communications between journalists and their sources as being privileged.
Article 19. 'Media Law and Practice in Southern Africa No. 7 ZAMBIA'. Article 19 website. 1998. Available at . 12 April 2003.
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The idea that journalists can at any given time be asked to divulge their sources, is a clear indication that the government has control over the journalists. This notion is cemented by the lack of protection of sources laws, as found in the Zambian Press Laws section
Case2: A Zambian journalist in exile responds to the media crisis in Zambia
“In April 1999, a leading independent daily in Zambia invited the wrath of its government for alleging that the country may have no capacity to repel an armed insurgence by neighbouring Angola. Thirteen journalists including Managing Director and Editor in Chief Fred M'membe were immediately detained and charged with criminal offences under the country's state security laws. The paper was sealed by armed police, printing presses were taken over by security forces blocking the printing of one of the papers editions. Espionage. That was the offence The Post was alleged to have committed. Espionage because, they painted Zambia weaker than a neighbour. Espionage because they alleged Zambia's weaponry was old and inadequate. Espionage, because how else can a man know of these secrets unless they are spies? Espionage because by publishing the information they were communicating information to all and sundry, doing the security homework for the enemy: the Angolan defence forces.”
Freedom of Expression Institute. "Zambian Government Attacks Press Freedom". Freedom of Expression Isntittue website. 1999. Available at . 12 April 2003
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Here, the Zambian press criticises the strength of the Zambian army. The Zambian government sees this criticism as a challenge their authority and position. The government acts accoridingly. Punishment is seen through the governments detaining of those involved. Censorship is depicted, by the sealing of the paper, by armed police. From the government’s point of view, the act of divulging important information about their armaments goes against their moral and political values. Now that the press have undermined the government’s power, they (those involved) are reminded that the press is subordinate to the government and have been detained. The government’s use of physical force adds to the totalitarianism of the state.
Derrick Chitala and Dean Mung'omba v. the Movement for Multi-Party Democracy
“Both the Times of Zambia and the Zambia Daily Mail carried stories about the plaintiffs, who had challenged their suspension from the MMD. Both papers reported that the plaintiffs had lost their case, which was not true. Advocates for the plaintiffs wrote to the papers seeking correction of the wrong impression created by these reports. Both papers refused to issue any correction until they were cited for contempt of court and ordered to print retractions.”
Article 19. 'Media Law and Practice in Southern Africa No. 7 ZAMBIA'. Article 19 website. 1998. Available at . 12 April 2003.
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Authoritarian normative press theory states that the press is an agent of the government. In this case, the first indication that Zambia employs authoritarianism, is the very fact that there are government owned newspapers. The second indication is how those newspapers perform. The newspapers provided disinformation, aiding the government’s credibility in the public sphere. When the advocates came to correct the newspapers, the truth was denied. This is an example of how the government has the right to appoint editorial staff of newspapers, which happens to be an authoritarian characteristic.
- South Africa
Because South Africa has been and still is evolving out of the old apartheid era, the function of the press is vivid, to both the press and the government. The primary case study used to determine South Africa’s press system according to the normative press theory involves the Denel arms manufacturer.
"Denel tries to gag us over huge arms deal" was the headline of the Sunday Independent on the 20th of July 1997. Along with this article, parallel articles occurred in the newspapers of the Sunday Tribune and Sunday Argus. The story behind the article involves the transaction of conventional arms between Denel, on behalf of South Africa, and Saudi Arabia. However, the three papers, all belonging to the Independent Newspapers group, were interdicted against by the state-owned arms manufacturer. This was done on the day before the publishing of the controversial article(s) occurred, on the grounds that the articles violated the secrecy legislation.
Freedom of Expression Institute. 'Statement issued following the decision of arms manufacturer Denel to resort apartheid legislation to gag media'. Freedom of Expression Institute's website. 1997. Available at . 12 April 2003.
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The newspapers involved in this case studies take a rigorous, active and direct approach to their participation and coverage of the Denel-Saudi arms transaction. With the above mentioned Denel (which is a government-owned institute) react firmly by infringing on the South African’s right of freedom to access information. Even though Denel is government owned, the people have the right to any information held by the state.
To further prevent the publishing of the reports, Denel laid criminal charges against the three newspapers in accordance to the 1968 Armaments Development and Production Act. This act entails the prohibition of disclosure of any information pertaining to the supplying, marketing and exporting aspects of South African armaments for the benefit of Armscor (The former governments arms manufacturer)
Freedom of Expression Institute. 'Statement issued following the decision of arms manufacturer Denel to resort apartheid legislation to gag media'. Freedom of Expression Institute's website. 1997. Available at . 12 April 2003.
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With the usage of the 1968 Armaments Development and Production Act, the press’s participation in investigating the arms deal, has in fact hindered any hope of understanding this political and social matter. This is a factor associated with the democratic-participant normative press theory.
A three-week court battle ensued over whether the newspapers had breached any of the secrecy laws or in fact jeopardised the transaction. The arms sale to Saudi Arabia occurred at the time that the above-mentioned act had come under review in terms of the yet-to-be-passed Open Democracy Act. Denel’s case had been previously weakened due to radio broadcasts (through which, disclosure was not prohibited).
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The core rights of the people have been taken into consideration and have been met by these radio broadcasts. The right to relevant information, to react and to a means of communication are covered despite the limiting laws.
Although Denel had silenced the papers, on the 3rd August, the Sunday Independent named Saudi Arabia as Denel’s client in the case, despite being told not to do so by the court. On August 5th 1997, the interdicts were finally withdrawn in the High Court in Pretoria.
Freedom of Expression Institute. 'Statement issued following the decision of arms manufacturer Denel to resort apartheid legislation to gag media'. Freedom of Expression Institute's website. 1997. Available at . 12 April 2003.
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This disobeying of the court’s orders, may be seen as the rejection of a state-controlled press. Relevant legislative measures have been employed to prevent the newspapers from publishing and details pertaining to the arms deal, however the Sunday Independent rejects the freedom of the press restrictions and does disclose information.
Denel’s actions were highly criticised by the Sunday Independent, Guardian & Mail as well as The South African National Editors Forum (SANEF) and the Freedom of Expression Institute. “Arms industry is not exempt from transparency policy,” was an article published on the 15th of August by Wyndham Hartley who states;
“It begs the question of whether or not the press should determine if national interest should delay or halt publication. Some would argue that delaying publication would be co-option. Others might argue that the ‘publish and be damned’ attitude displayed by the media was inherited from the repression of old and was indeed irresponsible. But there seems to be insufficient evidence to demonstrate an orchestrated plan to harm the defense industry.”
Freedom of Expression Institute. "Denel Episode Leaves Many Issues Unresolved". Freedom of Expression Institute website. 1997. Available at . 11 April 2003.
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The extensive criticism from the various newspapers (some community and even niche) highlights the participant-intensive nature of South Africa’s press system. Another point is that these newspapers operate in the interests of commercial and professional factors, nation-building, a government advocated factor, is not employed.
Questions about the role of the press in a Post-Apartheid South Africa were brought up. Other issues brought up were press freedom, national security and access to governmental information.
Freedom of Expression Institute. "Denel Episode Leaves Many Issues Unresolved". Freedom of Expression Institute website. 1997. Available at . 11 April 2003.
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A side point which sparked off debates between the President and various editors and journalists was that of the press’s alignment in terms of supporting or opposing the government. This issue touches on the democratic-participant normative theory, with reference to the presses slant towards an elitist, paternalist and professional viewpoint of journalism and the government, while the government is in favour of a positive press which adds to nation-building.
The following is a second case study, on the Right of Freedom to Access Information, in South Africa. The Open Democracy Bill attempts to increase public participation in administration and governance, so moving beyond representative democracy to participatory democracy. It aims to promote open and accountable administration at all levels of government and, more specifically, to enable individuals to effectively scrutinize and participate in governmental decision-making on issues which affect them. It proposes four main changes to the law and provides several enforcement mechanisms.
- Right of access by any person to information held by the government, subject to a certain exemptions
- The use and disclosure of personal information held by both governmental and private bodies without the consent of the individual
- Meetings of governing bodies of organs of government be open to the public.
- Provides protection against civil and criminal liability for "whistleblowers".
Freedom of Expression Institute's website. 1997. Available at . 12 April 2003.
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These changes allow for further participatory action in the democratic South Africa, with special focus on multiplicity and diversity of media; small scale us if media; local nature of media and the interaction and involvement of minorities in the media field.
- Conclusion
From the correlation of the case studies and press laws of both countries, one is able to deductively define each country’s press system according to the normative press theories.
Zambia for example has totalitarianistic laws, which advocates absolute power to the government and therefore adopts the corresponding authoritarian normative press system. South Africa on the other hand, is a democracy – it does allow for extensive freedom of expression, but it is up to the people to participate and take control of the media, hence it has adopted the democratic-participant normative press theory.
Conclusion
The analysis of these two countries, their backgrounds, press laws and case studies have left me with this conclusion; a country’s press system is a reflection of it’s political system. In my opinion this statement holds true. Before people can change the way they see and hear, they must decide on the way they think.