One of the most widely used - and frequently abused - elements of justice is criminal defamation, deployed by governments from Algiers to Pretoria, Dakar to Mogadishu when it comes to suppressing information and silencing critical journalism.
At its 2007 World Newspaper Congress in Cape Town, South Africa, WAN-IFRA identified criminal defamation and ‘insult’ laws as amongst the most severe obstacles to securing the future of the independent press in Africa. By endorsing the Declaration of Table Mountain, WAN-IFRA engaged in leading a long-term strategic campaign to see the repeal of such legislation across the continent, a vital step towards democratisation that would expose African governments to greater accountability and public scrutiny through the organ of a free and independent press.
Across the continent such laws are used to criminalise journalists, close publications, and stifle information otherwise considered crucial to safeguarding the public interest. Research into the number of cases based on criminal defamation prior to the 2007 Declaration, conducted on behalf of the World Press Freedom Committee - an international coalition of press freedom organisations of which WAN-IFRA is an active member - revealed an alarming frequency that severely hampers the press in its ability to cover issues of public concern.
Reporters covering corruption involving public officials, the conduct of police or military personnel, government policy decisions, public spending, even the health of kings or presidents, continue to be systematically hauled before the courts and tried for defamation. Journalists, editors and publishers across the continent who resist the enormous pressure to self-censor and instead choose to tackle these so-called ‘red lines’ head-on in the pages of their newspapers risk charges of endangering national security, destabilising the country, and - in extreme cases - treason. As a result they are frequently imprisoned for exposing the truth, and even in cases where financial compensation is deemed appropriate recompense for the plaintiff, exorbitant fines often far outweigh the actual damage inflicted. Assets are seized, publications are forced to close, and in many cases the accused risk jail if they are unable to pay. In brief, criminalising defamation deters investigative journalism and significantly reduces the capacity of the press to fulfill its role of public watchdog, and as a result African leaders can – and do – enjoy virtual infallibility.
The impact of such an approach can be witnessed in a recent case from Zimbabwe. In a country in which transparency is lacking in virtually every walk of life, it is perhaps no surprise to learn that Zimbabwe has a very active judicial system when it comes to harassing the critical press. A recent article published in The Standard weekly newspaper owned by independent publishing house Alpha Media Group, highlights the extent to which authorities will go to punish investigative journalism. A story that alleged the police were recruiting war veterans loyal to the ZANU-PF party of President Robert Mugabe to take over senior posts ahead of next year's elections led to the arrest of reporter Nqobani Ndlovu on 17 November 2010. He was charged with allegedly making defamatory statements and released after spending nine days in a Bulawayo prison.
That a journalist could be incarcerated without trial is disturbing enough, but subsequent developments and the escalation of the affair show precisely why criminal defamation law has become one of the most frequently used forms of protection for authorities with something to hide. Initially, Mr Ndlovu was to be charged with contravening Section 96 of the Zimbabwean Criminal Law (Codification and Reform) Act related to criminal defamation, with any conviction leading to two years' imprisonment, a fine, or both.
However, he now faces an additional charge under Section 31 of the same Act, which deals with the publication of falsehoods prejudicial to the state. If convicted he could face up to 20 years in prison. On 30 November, The Standard’s editor, Nevanji Madanhire, was also arrested and charged with breaching the same section of the Act.
"The arrest of Nqobani Ndlovu is a big blow against the return of confidence in Zimbabwe as far as press freedom and freedom of expression is concerned," said Trevor Ncube, Chairman of the Alpha Media Holdings Group in a statement to WAN-IFRA. "However, we are not intimidated but emboldened to continue informing the public in a professional and ethical manner,” he affirmed.
WAN-IFRA’s Declaration of Table Mountain campaign goes beyond the repeal of criminal defamation and aims to have a free and independent press placed far higher on the political agenda of African governments. The link between an active and independent press, free from government interference and intimidation, is a key step along the road to economic, political and social development and is seen as a must for any state with even the mildest of democratic pretensions.
There are many steps along the road to achieving this involving local, regional and international organisations working in partnership both on the ground and in the corridors of power across the continent. Amending the African Peer Review Mechanism, a mutually agreed self-monitoring instrument for African Union member states when it comes to reviewing governance, to include press freedom as part of its assessment criteria is one of the major goals for the coming months. WAN-IFRA’s Declaration of Table Mountain campaign fits directly with this aim and has been gathering steady momentum at every level of the debate. After intense lobbying and direct contact with policymakers and government representatives, the NGO forum of the African Commission for Human and Peoples’ Rights proposed a resolution on defamation that was adopted by the Commission in November. The resolution will be a genuine tool in the armory when it comes to addressing heads of state on their commitment to a free and independent press, providing initiatives like the Declaration of Table Mountain - when it comes to engaging the media, civil society and progressive political voices alike – with the real possibility of delivering meaningful, long-lasting and effective change.
Join the DTM campaign www.declarationoftablemountain.org
World Press freedom Committee www.wpfc.org
For more information on the situation in Zimbabwe visit The Media Institute of Southern Africa www.misa.org