Assessment of media development in Swaziland based on ...unesdoc.unesco.org/images/0025/002592/259242E.pdf · Background Information..... 14 Methodology ... LUCT Limkokwing University

United NationsEducational, Scientific and

Cultural Organization

Assessment of Media

Development in

SWAZILANDSWAZILANDBased on UNESCOs

Media Development Indicators

SWAZILANDA

ssessment of M

edia Developm

ent in SW

AZILA

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List of countries in which MDI-based assessments have been completed to date: Bhutan, Croatia, Curaao, Dominican Republic, Ecuador, Egypt, Gabon, Jordan, Libya, Madagascar, Maldives, Mongolia, Mozambique, Myanmar, Nepal, Palestine, South Sudan, Swaziland, Timor-Leste, Tunisia.

For more information, see https://en.unesco.org/programme/ipdc

The UNESCO/IPDC Media Development Indicators are a useful diagnostic tool for all stakeholders to assess the level of media development in a given country. The MDI studies serve to map the strengths and weaknesses of the national media environment and propose evidence-based recommendations on how to address the identified media development priorities. The MDIs have been endorsed by the Intergovernmental Council of UNESCOs International Programme for the Development of Communication (IPDC). They have proved invaluable in contributing to an improved environment for free, pluralistic and independent media in many countries, thereby supporting national democracy and development.

Assessment of Media Development

9 789231 002380

1473_17_IPDC_swaziland_COUV_NEW.indd 1 16/12/2017 06:52

Assessment of Media

Development in

Based on UNESCOs Media Development

Indicators



SWAZILAND

Published in 2017 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) 7, place de Fontenoy, 75352 Paris 07 SP, France

UNESCO 2017

ISBN 978-92-3-100238-0

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The ideas and opinions expressed in this publication are those of the authors; they are not necessarily those of UNESCO and do not commit the Organization.

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Dates of research: November 2014 October 2015

Research team:Vuyisile Sikelela Hlatshwayo, Lead ResearcherPhakama Shili, Assistant ResearcherKaren Zabeira, Assistant Researcher

Prepared by: MISA Swaziland

Peer review: Dr. Francis Lukhele

UNESCO review and editing:Fackson Banda, Programme Specialist, UNESCOGuy Berger, Director, UNESCO

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Table of Contents

Acronyms ........................................................................................................................................ 7

Executive summary ........................................................................................................................ 9

Key recommendations ................................................................................................................. 11

Introduction ................................................................................................................................... 13

Background Information .............................................................................................................. 14

Methodology ................................................................................................................................. 16

Category 1 A system of regulation conducive to freedom ofexpression, pluralism anddiversity of the media ............................................... 19

A. Legal and policy framework ............................................................................................ 21B. Regulatory system for broadcasting ............................................................................... 39C. Defamation laws and other legal restrictions on journalists ....................................... 42D. Censorship ......................................................................................................................... 47

Category 2 Plurality and diversity of media, a level economic playing field and transparency ofownership ............................................................................ 55

A. Media concentration ......................................................................................................... 57B. A diverse mix of public, private and community ........................................................... 61C. Licensing and spectrum allocation ................................................................................. 64D. Taxation and business regulation ................................................................................... 69E. Advertising .......................................................................................................................... 70

Category 3 Media as a platform for democratic discourse .......................................................... 75

A. Media reflects diversity of society................................................................................... 77B. Public service broadcasting model ................................................................................. 82C. Media self-regulation ....................................................................................................... 85D. Requirements for fairness and impartiality ................................................................... 88E. Levels of public trust and confidence in the media ...................................................... 89F. Safety of journalists ........................................................................................................... 92

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Assessment of Media Development in Swaziland

Category 4

Professional capacity building and supporting institutions that underpin freedom of expression, pluralism and diversity .......................... 101

A. Availability of professional media training.................................................................... 103B. Availability of academic courses in media practice .................................................... 109C. Presence of trade unions and professional organisations ........................................ 110D. Presence of civil society organisations ........................................................................ 113

Category 5 Infrastructural capacity is sufficient to support independent and pluralisticmedia ............................................................................ 119

A. Availability and use of technical resources by the media ......................................... 121B. Press, broadcasting and ICT penetration ..................................................................... 122

Annex I: List of Laws ................................................................................................................ 129

Annex II: Selected Bibliography ............................................................................................... 131

Annex III: Annex of Individuals consulted ............................................................................... 133

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Acronyms

ACHPR African Charter on Human and Peoples Rights AMB African Media Barometer AGOA African Growth Opportunity Act AUFM Africa Unite FM BA Bachelor of Arts BBC British Broadcasting Corporation CANGO Coordinating Assembly of Non-Governmental Organisations CHRPA Commission on Human Rights and Public Administration CSC Council of Swaziland Churches CSO Civil Society Organisation DCGH Digital Content Generation Hub DPFEA Declaration of Principles of Freedom of Expression in Africa E Swazi Lilangeni (currency) EBU European Broadcasting Union FAMW-SA Federation of African Media Women in Southern Africa FM Frequency Modulation FODSWA Federation of People with Disabilities in Swaziland HIV Human Immunodeficiency Virus ICCPR International Covenant on Civil and Political Rights ICT Information, Communication and Technology IPDC International Programme for the Development of Communication IPPF International Planned Parenthood Federation ISP Internet Service Provider ITU International Telecommunications Union JMC Journalism and Mass Communication LUCT Limkokwing University of Creative Technology MAMS Media Audience Measurement Survey MCCS Media Complaints Commission of Swaziland MDI Media Development Indicator MISA Media Institute of Southern Africa MP Member of Parliament MWASWA Media Women Association of Swaziland MWUS Media Workers Union of Swaziland NBIA National Broadcasting Infrastructure Agency NDS National Development Strategy

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NERCHA National Emergency Response Council on HIV and AIDS NGOs Non-Governmental Organisations NICTP National Information, Communication and Technology Policy OSISA Open Society Initiative for Southern Africa PAC Public Accounts Committee PSA Public Service Announcement PSB Public Service Broadcasting PUDEMO Peoples United Democratic Movement SBIS Swaziland Broadcasting and Information Service SCC Swaziland Competition Commission SCCOM Swaziland Communications Commission SCCCO Swaziland Coalition of Concerned Civic Organisations SCRN Swaziland Community Radio Network SDTTMP Swaziland Digital Terrestrial Television Migration Policy SEF Swaziland Editors Forum SFE&CC Swaziland Federation of Employers and Chamber of Commerce SIFTPA Swaziland Independent Film and Television Producers Association SMEWA Swaziland Media Women Association SNAJ Swaziland National Association of Journalists SPC Swaziland Press Club SPTC Swaziland Posts and Telecommunications Corporation SRA Swaziland Revenue Authority STA Swaziland Terrorism Act STB Set Top Box STBC Swaziland Television and Broadcasting Corporation STVA Swaziland Television Authority SWACAA Swaziland Civil Aviation Authority TUCOSWA Trade Union Congress of Swaziland UDHR Universal Declaration of Human Rights UNESCO United Nations Educational, Scientific and Cultural Organisation UNIFEM United Nations Development Fund for Women UNISWA University of Swaziland VAT Value Added Tax VOC Voice of the Church

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Executive summary

This study is an assessment of media development in Swaziland based on UNESCOs Media Development Indicators (MDIs). The MDI framework, approved in 2008 by the 26th session of the Intergovernmental Council of the International Programme for the Development of Communication (IPDC), comprises a comprehensive framework for assessing the media landscape. The structure of the report is based on the five categories of the MDIs.

The first chapter, on Category I, discusses the legal framework for freedom of expression, pluralism and diversity. The assessment finds that in the present political dispensation in Swaziland the legal and policy framework does exist but only on paper. There are still numerous legal challenges faced by the local media and citizens before they can enjoy their constitutional rights due to the endemic infringements on freedom of expression and media freedom. This chapter concludes with several recommendations including one suggesting that the government should prioritise law reforms and repeal those media laws that are restrictive and inconsistent with the Constitution.

The second chapter, on Category II, looks at the degree of media plurality and diversity. The study finds that a three-tier system consisting of public, commercial and community broadcasting does not exist allowing for multiple voices to be heard. However, there is hope that the newly established Swaziland Communications Commission (SCCOM), an independent broadcasting regulator, will move quickly to normalise this situation.

The third chapter, on Category III, focuses on the performance of media as a platform for democratic discourse. The study finds that the absence of a public service broadcasting model does not allow for adequate promotion of democracy and dialogue. In addition, in the absence of a public service broadcaster, citizens who hold different viewpoints from the government do not have a platform in which to deliberate and debate public affairs. The state monopolises and controls the state broadcasters and criticising government is prohibited in the state broadcasters.

The fourth chapter, on Category IV, looks at the availability of professional training opportunities and support for media practitioners. The study finds that media training institutions do exist but media practitioners are largely unable to access financial sponsorships to pursue training. In addition, the training institutions offer primarily theory classes due to the lack of technical resources and financial means required to procure equipment and materials for practical courses.

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Chapter V examines the availability of modern infrastructure, facilities and equipment for media professionals. The assessment finds good performance for the the infrastructural base for media, with media houses well linked with information and communication technologies (ICTs). There is, however, a great need for capacity building in online journalism to assist the media practitioners.

The overall conclusion is that there is an urgent need to address the specific legal framework and major technical and financial challenges identified in this study to ensure pluralism and media diversity in the Kingdom of Swaziland.

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Executive summary

Key Recommendations1. The government should repeal all pieces

of legislation restricting media freedom to comply with Section 24 of the Constitution, which states that a person has a right to freedom of expression and opinion and that a person shall not, except with the free consent of that person, be hindered in the enjoyment of the freedom of expres-sion, which includes freedom of the press and other media.

2. The Constitution should be amended to provide for the right to access information to be consistent with Article 19 (2) of the International Covenant on Civil and Political Rights, Article 1.2 of the UNESCO Consti-tution and Article 9 of the African Charter on Human and Peoples Rights.

3. Criminal defamation should be completely removed from the Swaziland statute books

4. The prohibitive cash bond required from media entrepreneurs should be abolished from the Books and Newspapers Act to encourage media development.

5. There should be tax incentives given to aspiring media entrepreneurs to promote media development.

6. The Swaziland Communications Commis-sion should formulate an advertising policy to ensure that all media houses get a fair share of government advertising.

7. Government should prioritise the safety of journalists and protect media workers from threats, intimidation, harassment, physical assault and imprisonment in line with Target/Indicator 16.10.1 of the UN Sustainable Development Goals (SDGs).

8. Media organisations should formulate a gender policy to promote gender balance in the media industry.

9. Efforts should be made by media organisa-tions to build a culture of media literacy by educating the public about the role of the media in democracy.

10. Efforts should be made to make formal training of practising journalists be an integral part of media companies human development policies.

11. Government should prioritise journalism training by not only including it on the priority list of government-sponsored programmes but also funding postgrad-uate programmes in order to create a pool of media trainers and improve the standard of journalism.

12. Media houses should make efforts to train media workers in digital journalism so that they can better utilize social media and other online tools for breaking and devel-oping stories.

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Introduction

The UNESCO Media Development Indicators (MDIs) are a universal tool for taking stock of national media development and identifying critical areas of media development. The MDIs were adopted in 2008 by the Intergovernmental Council of the International Programme for the Development of Communication (IPDC) and were seen as a vital tool in developing and enabling an environment for a free, independent and pluralistic media. The Swaziland Chapter of the Media Institute of Southern Africa (MISA) partnered with UNESCO to assess the media landscape in the Kingdom of Swaziland in 2014, by applying the MDI framework.

This MDI assessment report is the second such report in the Southern Africa region after a similar study was conducted in Mozambique.1 However it is the first of its kind to be conducted in the Kingdom of Swaziland in terms of its holistic approach and is the first comprehensive study to assess the national media landscape undertaken in the Kingdom by researchers since the adoption of the Constitution of the Kingdom Swaziland on 26 July, 2005.2 To ensure objectivity, accuracy and balance, a survey for this report was conducted with relevant national stakeholders including civil society, academia, media and government. The researchers made efforts to ensure that the composition of the respondents was gender balanced.

This study aims to assess and gain an in-depth understanding of the Swaziland media landscape using the UNESCO MDIs. Its recommendations are intended to provide guidance to policy makers, lawmakers, the media, civil society organisations, universities and training institutions on how to strengthen a free, independent and pluralistic media in Swaziland in keeping with international standards and principles. More importantly, it is also intended to provide a reliable resource for other decision-makers, including donor institutions and development partners with a keen interest in addressing the identified priority areas outlined by the national stakeholders.

The timing of the MDI study coincided with a tough year for journalists in Swaziland as the state clampdown on the media culminated in the arrest and conviction for two years, without an option of a fine, of The Nation editor, Bheki Makhubu, and columnist, Thulani Maseko. Their incarceration came after the judge found them guilty of writing scurrilous articles

1 UNESCO, Assessment of Media Development in Mozambique based on UNESCOs Media Development Indicators. 2011.

2 The Constitution of the Kingdom of Swaziland July 26, 2005.

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that undermined the judiciary.3 While the media fraternity was still reeling from the harsh conviction of Makhubu and Maseko, in May 2014 the appeal judges upheld the sentence and awarded the highest defamation claim of US$55,000 against the countrys oldest newspaper, Times of Swaziland.4 When the current study was undertaken, the entire media community was still gripped by fear.

Background Information The Kingdom of Swaziland is a small country sandwiched between the Republic of South Africa and Mozambique. It has a population of 1.2 million people, two thirds of whom live below the poverty line.5 The country gained independence from Britain on 6 September, 1968, and functions under a Westminster-type constitution.6 Under the Westminster model enshrined with a Bill of Rights, Swazis enjoyed the fundamental human rights and freedoms of conscience, expression, assembly, association and movement. However, this was short-lived as King Sobhuza II repealed the 1968 Constitution on 12 April, 1973.7 This resulted in the removal of the Bill of Rights that secured the aforesaid rights and freedoms. Until 2005, the Swazi nation had been ruled without a constitution save for the 1973 Decree which retained some provisions of the 1968 Constitution.8

Yielding to national and international pressure, King Mswati III ushered in a new constitutional dispensation on July 26, 2005.9 Section 79 of the Constitution of the Kingdom of Swaziland describes the Swaziland political system as a democratic, participatory, tinkhundla-based system which emphasises devolution of state power from central government to the people in the tinkhundla areas.10 Swaziland is divided into several areas or constituencies called tinkhundla and for purposes of political organisation and representation of the people in Parliament, these tinkhundla are used for the election of Members of Parliament. Enshrined with a Bill of Rights, the Swazi Constitution specifically provides for freedom of expression, the

3 High Court of Swaziland, Judgment on Sentence: Rex v The Nation Magazine. July 25, 2014.4 MISA Swaziland, So this is Democracy? State of media freedom in Southern Africa, National Overview.

2014. 5 National Development Plan 2014/15-2016/17, Ministry of Economic Planning and Development, Economic

Planning Office, March 2014.6 Langwenya, M, Swaziland Justice Sector and the Rule of Law: A review by AfriMAP and the Open Society for

Southern Africa. 2013. 7 Hlatshwayo, V, The reality of media freedom in Swaziland under the new constitutional dispensation. A

dissertation submitted in partial fulfilment of the requirements for the award of Master of Arts in Media Studies, University of Cape Town. 2011.

8 Langwenya, M, Swaziland Justice Sector and the Rule of Law: A review by AfriMAP and the Open Society for Southern Africa. 2013.

9 Dlamini, L, Swaziland Democracy and Political Participation Discussion Paper: A review by AfriMap and the Open Society Initiative for Southern Africa, 2013.

10 The Constitution of the Kingdom of Swaziland July 26, 2005.

15

Introduction

press and other media. Despite the guarantees in the Constitution, the government continues to maintain a stranglehold on the local mainstream media.11

As regards the national media landscape, Swazilands print media industry is dominated by two national players - Times of Swaziland Group of Newspapers and Swazi Observer Group of Newspapers. Owned by the Loffler family, the former publishes the Times of Swaziland, Swazi News, Times of Swaziland Sunday and Whats Happening. The proprietor of the Swazi Observer Group of Newspapers is the royal company, Tibiyo Taka Ngwane. Their titles include Swazi Observer, Observer on Saturday and Sunday Observer. Smaller Swazi-owned media start-ups such as the Independent News, Swaziland Shopping, Ingwazi News and Swazi Mirror struggle to attract advertising to keep them afloat and are therefore published on an ad hoc basis. Swaziland has two privately-owned periodicals namely The Nation and Agribusiness. The former is a socio-economic and political publication while the latter specialises in agriculture and business news.

For its part, the broadcast media is dominated by two state broadcasters namely, the Swaziland Broadcasting and Information Services (SBIS) (radio) and Swaziland Television and Broadcasting Corporation (STBC) (television). There is also Channel Swazi which is the only privately-owned television station in the country. In addition to SBIS, there are two other small radio stations: one is a Christian radio station, the Voice of the Church (VOC), which is a franchise of Transworld Radio12 and the other is a commercial station known as Africa Unite FM (AUFM) which was secretly granted a licence by then acting regulator, Stan Motsa, in 2013. Since it was granted the licence, the owners have not yet set up the radio station to start broadcasting. Although community radio has no legal status in Swaziland, some communities have shown interest in setting up community radio stations. Championing this cause is the Lubombo Community Radio, which sometimes gets a one-day provisional licence to broadcast events surrounding the Kings birthday. Several communities have established a Swaziland Community Radio Network advocating for the granting of licences to community radio stations.

The backbone of the information and communication technology (ICT) infrastructure is provided by the Swaziland Posts and Telecommunications Corporation (SPTC). Until recently, its main responsibilities were the operation, maintenance and development of national postal and telecommunications services. SPTC is responsible for the management of the Internet gateway. Swaziland has made great progress in ICT with most of that progress in mobile communications which has 72 subscriptions per 100 inhabitants. The fixed line penetration

11 So this is Democracy? State of media freedom in Southern Africa, Swaziland National Overview, 2012.12 Mthembu, M, A critical evaluation of state broadcasting and recommendations for future transformation

campaign direction, 2006.

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has remained at 4.4 subscriptions per 100 inhabitants while the number of Internet Service Providers (ISPs) increased from two in 1999 to seven in 2010.13

As mentioned above, given the increasingly hostile government-media relations, this is a fitting time to examine the media environment in Swaziland using the MDIs. This is further spurred by criticism for the Constitution enshrined with a Bill of Rights in 2014.14 As Dlamini states, the positive effect of the many progressive provisions in the Constitution is vitiated by the numerous inconsistencies, contradictions, overboard limitations of human rights and deficiencies in the independence of constitutional bodies.15 It is important to note that Swaziland has signed and ratified international instruments such as the African Charter on Human and Peoples Rights (ACHPR), Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR).16

Methodology

The MDI assessment was launched in October 2014 following a request by the Swaziland Chapter of the Media Institute of Southern Africa (MISA) and was kick-started with a training workshop on the MDI methodology organised and run by UNESCO. The three members of the research team attended this training workshop. At the end of the workshop the assessment was officially launched with the cooperation of media stakeholders, editors, government, civil society organisations and academics.

The MDI assessment in Swaziland is focused on the national context and is based on a combination of desk and field research aimed at yielding both qualitative and quantitative data on the various aspects of the Swazi media sector. The desk research included an audit of the existing media laws, bills and regulations, review of literature and reports on Swazi media as well as international reports. The field research took two formats: a survey targeting media workers in the country on one hand, and in-depth interviews with media workers, academics as well as representatives from civil society organisations and government on the other.

The main objective of the survey was to collect data relating to each of the indicators. Using a convenience or purposive sampling method, the researchers were able to come up with a sample of respondents broken down as follows:

13 National Information and Communication Infrastructure Implementation Plan 2012-2016, Kingdom of Swaziland.

14 So this is Democracy? State of media freedom in Southern Africa, Swaziland National Overview. 2007.15 Dlamini, L, Swaziland Democracy and Political Participation Discussion Paper: A review by AfriMap and the

Open Society Initiative for Southern Africa. 2013.16 Hlatshwayo, V, The reality of media freedom in Swaziland under the new constitutional dispensation. A


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Introduction

Region Age Gender

Hhohho 18-25 10.0% Male 56.4%

Manzini 26-35 60.0% Female 43.6%

Shiselweni 36-45 22.5%

Lubombo 46-55 7.5%

Education Income Work sector

High School or less Above average 10.0% Government 35.9%

Certificate Average 70.0% Private 58.9%

Diploma Less than average 20.0% Non-governmental 5.1%

Undergraduate (Associates Degree)

Undergraduate (BA Degree)

Postgraduate (MA, PhD, or more)

Do you work in more than one organisation?

Are you fully employed or do you work as a freelance journalist?

What is your main field of work?

Yes 12.5% Fully employed 84.6% Print 61.4%

No 87.5% Freelance 7.7% Radio 11.4%

Both 2.6% TV 18.2%

Other 5.1% New media 9.1%

Education/training

0.0%

Which category does your work fall into?

How familiar are you with Swazi laws relevant to the media?

Managing editor 2.6% Familiar 52.5%

Editor-in-chief 0.0% Somewhat familiar 42.5%

Assistant editor 2.6% Somewhat unfamiliar 0.0%

News editor 10.5% Unfamiliar 5.0%

Sub-editor 2.6%

Senior reporter 21.1%

Reporter 60.5%

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The survey was conducted in January and February 2015, with a total of 50 questionnaires distributed to the six major media houses, leaving out Swaziland Shopping, Ingwazi, Swazi Mirror, VOC and Channel Swazi due to their small circulation and poor listenership and viewership.17 The researchers distributed the questionnaires to SBIS, STBC, Times of Swaziland, Swazi Observer, The Nation and Independent News. The respondents were given three weeks to work on their responses before the researchers returned to collect them. The two research assistants participated in the survey. To supplement the survey data, the research assistants and lead researcher conducted structured interviews with media workers, academics, civil society actors, government and the regulatory bodies. Under the guidance of the lead researcher, the research assistants compiled the primary data and literature review.

The entire report was presented for validation in a media stakeholders conference organised on 4 November, 2015. Soft copies of the assessment were emailed in advance to all the participants. A total of 17 participants attended the validation and included representatives from academia, civil society, trade unions and media partners. Government officials could not honour the invitation due to other commitments. Assisted by a veteran journalist and secretary of the Swaziland Press Club (SPC), the head of the University of Swaziland Journalism and Mass Communication Department led the discussions, providing the much-needed journalism expert input on the study. The lead researcher received the feedback which guided the team in finalising and filling the gaps. After scrutinizing the draft and the recommendations, the report was validated by all participants.

17 Rogers, M, Women, Abuse and the Swazi Media: Analysis of media coverage of the 16 Days of Activism Against Gender Violence Campaign 2006 and gender issues

Assessment of Media

Development in

Based on UNESCOs Media Development

Indicators



Category 1 A system of regulation conducive to freedom of expression, pluralism and diversity of the media

US Embassy in Swaziland

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Key Indicators:

A. LEGAL AND POLICY FRAMEWORK

1.1 Freedom of expression is guaranteed in law and respected in practice1.2 The right to information is guaranteed in law and respected in practice1.3 Editorial independence is guaranteed in law and respected in practice1.4 Journalists right to protect their sources is guaranteed in law and respected in

practice1.5 Public and civil society organizations (CSOs) participate in shaping public policy

towards the media

B. REGULATORY SYSTEM FOR BROADCASTING

1.6 Independence of the regulatory system is guaranteed by law and respected in practice

1.7 Regulatory system works to ensure media pluralism and freedom of expression

C. DEFAMATION LAWS AND OTHER LEGAL RESTRICTIONS ON JOURNALISTS

1.8 Unwarranted legal restrictions are not placed on the media1.9 Defamation laws impose the narrowest restrictions necessary to protect the

reputation of individuals1.10 Other restrictions upon freedom of expression, whether based on national

security, hate speech, privacy, contempt of court laws and obscenity should be clear and narrowly defined in law and justifiable as necessary in a democratic society, in accordance with international law

D. CENSORSHIP

1.11 The media is not subject to prior censorship as a matter of both law and practice1.12 Efforts are not sought to block or filter Internet content deemed sensitive or

detrimental

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Category 1 A system of regulation conducive to freedom of expression, pluralism and diversity of the media

A. Legal and Policy FrameworkSwaziland is a signatory to a number of international instruments on human rights.1 The Swazi Constitution is based on the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), African Charter on Human and Peoples Rights (ACHRP), Declaration of Principles of Freedom of Expression in Africa (DPFEA) and the Windhoek Declaration.2 The Swaziland Constitution contains a number of important provisions in Chapter III titled Protection and Promotion of Fundamental Rights and Freedoms, which, in theory, protect the media, including publishers, broadcasters, journalists, editors and producers. There are other provisions elsewhere in the Constitution that assist the media as it goes about its work of reporting on issues in the public interest.3 These include the following:

Section 33(1) of the Right to Administrative Justice provides that:

A person appearing before any administrative authority has the right to be heard and to be treated justly and fairly in accordance with the requirements imposed by law including the requirements of fundamental justice or fairness and has a right to apply to a court of law in respect of any decision taken against that person with which that person is aggrieved.4

Section 33(2) provides that a person appearing before any administrative authority has a right to be given reasons in writing for the decision of that authority. This section protects journalists and the media from administrative officials who act unfairly or unreasonably by not complying with legal requirements.

1 Langwenya, M, Swaziland Justice Sector and the Rule of Law: A review by AfriMAP and the Open Society for Southern Africa. 2013.

2 Hlatshwayo, V, The reality of media freedom in Swaziland under the new constitutional dispensation. A dissertation submitted in partial fulfilment of the requirements for the award of Master of Arts in Media Studies, University of Cape Town. 2011.

3 Limpitlaw, J, Media Law Handbook for Southern Africa Volume 1. Konrad-Adenauer-Stiftung, Regional Media Programme, Johannesburg. 2012.

4 Section 33(1) of the Constitution of the Kingdom of Swaziland.

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In addition to the human rights provisions, there are other sections such as the Parliamentary Privilege and Public Access to Courts that assist the media in carrying out its duty. Section 131 of the Constitution entitles Parliament to proscribe laws providing for immunities and privileges for the president, the speaker, Members of Parliament (MPs) and anyone else participating in or reporting on the proceedings of Parliament.

Under the Public Access to Courts, Section 139(4) of the Constitution provides that the proceedings of every court shall be held in public except as may otherwise be provided in the Constitution or as ordered by a court in the interest of public morality, public safety, public order or public policy. This allows journalists to attend court proceedings.

The Parliamentary Privileges Act, 1967, is a law that assists the media to report on the work of Parliament. It also allows journalists to report on parliamentary proceedings without facing arrest or civil proceedings for what they report.

Despite these guarantees, continued human rights violations by the state apparatuses against media workers, labour unions and political parties have attracted criticism from international freedom defenders organisations. In a 2009 report, Amnesty International expressed concern over certain provisions of the Suppression of Terrorism Act No. 3 of 2008 threatening human rights, being inherently repressive and breaching Swazilands obligations under international and regional human rights law and the Swaziland Constitution. As such, they recommended that the Swazi government:

[F]ully protect[s] and uphold[s] the internationally recognized rights of freedom of opinion and expression, freedom of association, freedom of assembly, to the liberty and security of the person, to fair trial and to not be subjected to torture or other forms of ill-treatment, and end impunity for violations of these rights.5

1.1 Freedom of expression is guaranteed in law and respected inpractice

Freedom of expression is a basic right enshrined in the Swazi Constitution that explicitly protects the media as set out in subsections 24(1) and (2), which state:

1. A person has a right to freedom of expression and opinion.

2. A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of expression, which includes the freedom of the press and other media, that is to say

a) Freedom to hold opinions without interference

5 Amnesty International, Suppression of Terrorism Act Undermined Human Rights in Swaziland. London: Amnesty International Publications. 2009.

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A system of regulation conducive to freedom of expression, pluralism and diversity of the media Category 1

b) Freedom to receive ideas and information without interference

c) Freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons); and

d) Freedom from interference with the correspondence of that person.6

The Constitution is in line with Article 9 of the African Charter on Human and Peoples Rights which states that: Every individual shall have the right to express and disseminate his opinions within the law.7 Swaziland also accepted a specific legal obligation to respect, protect and fulfil the rights in the ICCPR when it acceded to this International Human Rights Treaty in 2004. Article 19(1) of this treaty states: Everyone shall have the right to hold opinions without interference. Article 19(2) states: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.8 Similarly, Article 19 of the Universal Declaration of Human Rights states: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The Constitution also allows the media to approach a body such as the Commission on Human Rights and Public Administration (CHRPA) to assist in the enforcement of the rights. Among other things, the CHRPA investigates complaints concerning alleged violations of fundamental human rights and freedoms.

Freedom of expression is also guaranteed in laws such as The Parliamentary Privileges Act of 1967. Section 3 of this Act entitled Freedom of Speech and Debate states that there shall be freedom of speech and debate in proceedings in Parliament. Such freedom shall not be liable to be impeached or questioned in any court or place outside Parliament.9

Although the Constitution guarantees freedom of expression, the Swaziland media environment is extremely difficult.10 For instance, the judge ruling in the case against The Nation editor, Bheki Makhubu, stated: No one has the right to attack a judge or the Courts under the disguise of the right of freedom of expression. Inasmuch as this is a right enshrined in the Constitution, the Constitution itself makes the right not absolute.11 The judge invoked

6 Government of Swaziland, The Constitution of the Kingdom of Swaziland. 2005.7 Organisation of African Unity, African Charter on Human and Peoples Rights. 1981.8 Amnesty Internationa,. Suppression of Terrorism Act Undermines Human Right in Swaziland. London:

Amnesty International Publications. 2009.9 Section 3 of The Parliamentary Privileges Act.1967.10 Limpitlaw, J, Media Law Handbook for Southern Africa Volume 1. Konrad-Adenauer-Stiftung, Regional

Media Programme, Johannesburg. 2012.11 Swaziland High Court, Judgment: Rex v The Nation Magazine. July 17, 2014.

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Section 24(3) of the Constitution, which contains an internal limitation on the general rights to freedom of expression and opinion contained in subsections 24(1) and (2) and provides that refuge can be sought in the applicable legislation.

Section 24 (3) states that:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision

a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;

b) that is reasonably required for the purpose of.

(i) protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings;

(ii) preventing the disclosure of information received in confidence;

(iii) maintaining the authority and independence of the courts; or

(iv) regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television or any other medium of communication; or

c) that imposes reasonable restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under the authority of that law is shown to be reasonably justifiable in a democratic society.12

Limpitlaw observes that these limitations are generally not out of step with international norms for limitations on freedom of expression, except in one respect namely, the restriction imposed upon public officers. Clearly, many public officials do have secrecy obligations, particularly in defence, intelligence and policing posts.13

To strike a balance between the constitutional guarantees of freedom of the press and protection of the rights to privacy, the government has come up with the Media Commission Bill. This aims to set up an independent media regulatory body, the Swaziland Media Commission, made up of twelve members. Its main objectives are as follows:

to establish a multi-sectoral body for the purpose of mediating public complaints in the press and print media in Swaziland;

12 Government of Swaziland, The Constitution of the Kingdom of Swaziland, 200513 Limpitlaw, J, Media Law Handbook for Southern Africa Volume 1. Johannesburg: Konrad-Adenauer0Stiftung

Regional Media Programme, 2012.

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to promote and establish an equitable balance between the constitutional guarantees of freedom of the press and the protection and respect of the rights to privacy and the home, family, women, children and persons with disabilities;

to give effect to a code of ethics for the media and promote the standard of professionalism in information communication technology;

to promote, supervise and maintain responsible standards of journalism; and

to provide for incidental matters.

In a bid to promote media pluralism and freedom of expression, the ICT Minister tabled the Swaziland Broadcasting Bill 2013 and Swaziland Broadcasting Corporation Bill 2013 in Parliament. The Swaziland Broadcasting Bill has five objectives. Notably, the Bill provides for freedom of expression through broadcasting. It also seeks to regulate sound and television services and provide for the maximum availability of broadcasting to the people through the three-tier system of public, commercial and community broadcasting services.14 At the time of the compilation of this report, the House of Assembly had not yet passed these two bills into law.

However, there are certain clauses of one of these pieces of legislation that are likely to impact negatively on broadcasting. The Swaziland Broadcasting Bill 2013 has clauses that discriminate against members of political parties even though political parties are not legally recognised and registered in the Kingdom. For example, sub-section 8 of the Swaziland Broadcasting Bill 2013 under Licensing Procedure for Diffusion Service stipulates in (c): the Commission shall not grant a licence where the applicant is an office bearer in a political party or is actively engaged in politics. It also states in (d) where the applicant is a political party or association.

In an interview with Sikelela Dlamini, Principal Secretary in the ICT Ministry, it was disclosed that the ministry had already tabled before Cabinet the Rules and Regulations on the three-tier broadcasting namely public, commercial and community broadcasting.

We have since realised that the passage of the broadcasting bills would take long. Hence, with the Swaziland Communications Commission already in place, we have asked the Attorney General to prepare the Rules and Regulations and present them to Cabinet for approval so that the regulator should issue broadcasting licences.15

Governments tight control on the media has denied other sectors of society platforms for democratic discourse. Participants in an Afrobarometer study conducted in 2013 were asked the following question: In this country, how free are you to say what you think?. The

14 So this is Democracy? State of media in Southern Africa, Swaziland National Review, 2013.15 Interview with Principal Secretary in the ICT Ministry Sikelela Dlamini. October 13, 2015.

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results found that 24% of participants in the Swaziland sample felt completely free to express themselves, 57% felt not at all/not very free, 17% felt somewhat free and 2% said they did not know whether they were free or not.16

In the Global Press Freedom Rankings of 2014, Freedom House gave Swaziland a rating of 78/100 and a status of Not Free, ranking it 171th in the world, one place lower than the previous year when it occupied position 170th in the world, a position it shared with Zimbabwe.17 In sub-Saharan Africa, Swaziland ranked 41 out of 49 sub-Saharan countries included in the study.18 In the 2015 World Press Freedom Index published by the Reporters Without Borders, Swaziland ranked number 155 out of 180 states.

Swazilands absolute monarchy continued to exert strict control over the media in 2014. King Mswati III has the power to suspend the constitutional rights to freedom of expression and freedom of the press at his discretion. These rights are severely restricted in practice, especially with respect to speech on political issues or the royal family. Of the six media Bills proposed in 2007 along with a new Constitutionincluding a Public Broadcasting Corporation Bill, a Swaziland Broadcasting Bill, and a Freedom to Information and Protection of Privacy Billnone was enacted by the end of 2012, and only the press-regulating Media Commission Bill was opened to parliamentary debate.

According to a 2002 audit of Restrictive Media Laws and African Media Barometer, there are approximately 32 laws that restrict media freedom in Swaziland, including harsh defamation laws and the Suppression of Terrorism Act (STA) that the government has threatened to apply to critical journalists.19 According to Hlatshwayo (2011), the STA infringes on the rights of media practitioners who interact with and interview members of proscribed organisations that have been branded as terrorists.20 For instance, the Attorney General warned journalists against supporting suspected terrorists in their reporting. In addition, while there is no law specifically banning criticism of the monarchy, authorities warn that such criticism could be considered seditious or treasonous. In March 2012 the government proposed the Computer Crime and Cyber-security Draft Bill which would ban criticism of the King and private citizens on social media platforms. This bill is still waiting to be approved by Cabinet and then tabled before Parliament. If passed, it would also protect citizens from harassment stemming from electronic communications.

16 Kamau, P. and W. Mitullah, The Partnership of Free Speech & Good Governance in Afrobarometer. 2013.17 Karlekar, K.D. and J. Dunham. Press Freedom in 2013: Media Freedom Hits Decade Low: http://

www,freedomhouse.org 2014.18 Freedom House, Freedom of the Press 2013: Middle East Volatility Amid Global Decline: http://www.

freedomhouse.org 2013.19 Hlatshwayo, V, The reality of media freedom in Swaziland under the new constitutional dispensation. A


20 Ibid.

http://wwwhttp://wwwhttp://www

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In the past, defamation cases and contempt of court cases curtailed freedom of expression. One example was the case of contempt of court brought against The Nation in 2009 for an article that was critical of the judiciary. When this matter was finally resolved in February 2013, both the publication and its editor were found guilty of contempt of court. Judge Bheki Maphalala fined the publisher E200, 000 (US$20,000) and failing payment of the fine, the editor was to be put behind bars for two years. The courts decision was appealed and the fine was reduced to E30, 000 (US$3000) and the sentence from two years to three months.21 This would suggest that the courts are starting to relax somewhat as they have dismissed a number of defamation cases and overturned attempts to limit media coverage of politically or culturally sensitive issues.

Of the 40 Swazi journalists, out of a national population of 86, who took part in the survey for this report, 35% disagree with the statement that they felt that they can exercise their right to freedom of expression in practice. Almost one quarter (22.5%) somewhat disagree, 25% somewhat agree, and 10% agree with the statement. Of the total number of respondents interviewed, however, 7.5% had no opinion on the matter. These results indicate that the majority of journalists do not feel free to exercise their right to freedom of expression in practice and are reflective of those found by 2013 Afrobarometer study, which also concluded that the majority of individuals in Swaziland did not feel free to express themselves. The imprisonment of The Nation editor, Bheki Makhubu, and columnist, Thulani Maseko, in July 2014 following their writing of two articles in The Nation criticising the judiciary is likely to have influenced the responses of the interviewees.

Table 1:I feel that I can exercise my right to freedom of expression in practice.

Overall

Agree 10.0%

Somewhat agree 25.0%

Somewhat disagree 22.5%

Disagree 35.0%

No opinion 7.5%

1.2 The right to information is guaranteed in law and respected in practice

There is no freestanding right of Access to Information in the Swaziland Constitution.22 Swaziland does not have a freedom of information law, and accessing government

21 So this is Democracy? State of media freedom in Southern Africa, Swaziland National Overview. 2013.22 Limpitlaw, J, Media Law Handbook for Southern Africa Volume 1. Konrad-Adenauer-Stiftung, Regional

Media Programme, Johannesburg. 2012.

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information is difficult.23 The Information and Media Policy of 2005 requires the media to eradicate information poverty, reduce isolation of communities, and unify the Swazi nation through provision of information that is demanded.24 This policy is based on Vision 2022 of the National Development Strategy (NDS), aimed at achieving sustainable socioeconomic development, social justice and political stability.

The ICT Ministry has drafted the Freedom of Information and Protection of Privacy Draft Bill, 2007. This bill seeks to promote a culture of openness, transparency and accountability in public bodies. Chief, among other things, it proposes to:

provide a right of access to information held by public bodies;

provide a right of access to information held by private bodies, where such access is required for the exercise or protection of the right to freedom of expression;

provide for reasonable and justifiable limitations on the right to access to information held by public or private bodies in accordance with the right to freedom of expression under section 24 of the Constitution; and

repeal the 1968 Official Secrets Act.25

As the case has been with other media reform initiatives in the country, the process to enact the draft bill has stalled.

Despite the lack of legislation in the area of access to information, the Code of Ethics for Journalists allows for the peoples right to information. Article 1 (3) of the Code states that, the public must have unfettered access to all media.26

In its annual report of 2013, Freedom House indicated Swazilands Freedom Status as Not Free, which suggests a country where basic political rights are absent and basic civil liberties (such as freedom of speech, expression and information) are widely and systematically denied.27 One example is the governments banning of trade unions from making announcements on the state broadcasters, in addition to the state broadcasters ensuring that a news blackout pertains to the unions activities. The Swaziland Federation of Employers and Chamber of Commerce (SFE&CC) has reacted to this ban and has reportedly warned the Swazi government against the muzzling of the media. It made it clear that access to information is a basic human right.28

23 Freedom House, Freedom of the Press 2013: Middle East Volatility Amid Global Decline: http://www.freedomhouse.org, 2013.

24 Swaziland Information and Media Policy 2005.25 Limpitlaw, J, Media Law Handbook for Southern Africa Volume 1. Konrad-Adenauer-Stiftung, Regional

Media Programme, Johannesburg. 2012.26 Swaziland National Association of Journalists, Swaziland Journalists Code of Ethics.27 Puddington, A, Freedom in the World 2013: Democratic Breakthroughs in the Balance. http://www.

freedomhouse.org 2013.28 Times of Swaziland. July 20, 2012.

http://wwwhttp://www

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The results of the survey of journalists in Swaziland indicate that a majority (42.1%) disagree that they have sufficient access to official information whereas 10.5% agree. About one-quarter (26.3%) somewhat disagree whereas 21.1% somewhat agree with this notion. Somewhat agree means the respondent agrees to a certain extent while somewhat disagree means the respondent disagrees to a certain extent. This suggests that the majority of journalists feel that they are met with restrictions when they try to access official information. This mirrors the observations of Freedom House in that accessing government information in Swaziland is difficult.29

Table 2: I believe that I have sufficient access to official information.

Overall

Agree 10.5%



Disagree 42.1%

No opinion 0.0%

When respondents were asked for their opinion on whether they consider that public bodies release information in response to public demand as well as proactively in the aim of advancing citizens right to information in practice, half of the respondents said that they disagree while 27.8% of the respondents said they somewhat disagree, 13.9% somewhat agree, 8.3% agree and 2.8% had no opinion.

Table 3: I consider that public bodies release information in response to public demand as well as pro-actively, in the aim of advancing citizens right to information in practice.

Overall

Agree 8.3%



Disagree 50.0%

No opinion 2.8%

29 Freedom House. Freedom of the Press 2013: Middle East Volatility Amid Global Decline: http://www.freedomhouse.org 2013.

http://www

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These results indicate that most journalists feel that public bodies either hesitate or refuse to release information in response to public demand. Information may eventually be released but it may not be done proactively and may be due to pressure from external forces. One example involves the Minister of Housing and Urban Development, who reportedly took nine months to respond to a questionnaire on an issue involving sugarcane growers at the Vuvulane Irrigated Farms. 30 This suggests that some basic civil liberties, such as the right to information, are widely and in some cases systematically disregarded.

When interviewed about access to information, Principal Secretary in the ICT Ministry, Sikelela Dlamini, said that the government was doing everything to make it possible for the citizens to access public information through e-government. However, he made it categorically clear that as custodians of information including confidential information there needed to be checks and balances.31 Dlamini explained:

Before giving out information, we need to cross check the facts in order to protect the information owner or the image of the country. There are laid down procedures on how to access government information. We are entrusted with both public and confidential information as government.32

1.3 Editorial independence is guaranteed in law and respected inpractice

The Media Commission Bill 2009 seeks to promote editorial independence through the Swaziland Media Commission, whose functions would include promoting, protecting and preserving the freedom of the press and media and improving standards of newspapers and the media in Swaziland.33 It will also provide for the protection of the rights and privileges of journalists and other persons engaged in the provision of media services.

Perhaps most evident is the lack of editorial independence in the state-controlled broadcast media. Rooney, for example, suggests that Swazi TV and radio are effectively departments of the civil service and government mouthpieces acting more as a vehicle for development.34 In the case of the SBIS, which operates the radio station, the broadcast journalists are considered civil servants first and journalists second.35 As they are employed as information officers, they are part of the civil service and are thus expected to abide by the Government

30 Swazi Observer. July 11, 2011. 31 Interview with Principal Secretary in the Ministry of Information, Communication and Technology, Sikelela

Dlamini, October 13, 2015.32 Ibid.33 The Media Commission Bill. 200934 Limpitlaw, J, Media Law Handbook for Southern Africa Volume 1. Johannesburg: Konrad-Adenauer-Stiftung

Regional Media Programe, 201235 Hlatshwayo,V, The reality of media freedom in Swaziland under the new constitutional dispensation. A


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General Orders.36 As government information officers they are expected to censor disruptive or critical information likely to compromise national security and frustrate governments realisation of socioeconomic development goals, which clearly contravenes the spirit of editorial independence.

In addition, the ICT Ministry has invoked the Public Service Announcement (PSA) Guidelines to control the state broadcasters. These guidelines bar all Swazi citizens, irrespective of their status, from airing their opinions on the radio and television stations before their opinions have been cleared by their chiefs. Thinly veiled as public announcement guidelines, the PSA guidelines regulate all operations and activities of the state broadcasters. Article 2.2.2, for example, states that any PSA:

(i) that is contrary to the laws, regulations and the Constitution of the Kingdom of Swaziland shall not be allowed;

(ii) organised by, and/or benefitting a political candidate will not be accepted, except in circumstances prior arrangement has been made with relevant authorities or during official election periods and campaigning has been officially opened to all individuals by the Elections and Boundaries Committee;

(iii) that is negative or does not support Governments agenda shall not be allowed;

(iv) that seeks to promote Witchcraft, Fortune Telling, Astrology, Phrenology, and other forms of occultism, such as spiritualism, mind or character reading, handwriting, palm reading numerology, etc shall not be allowed;

(v) that is calculated or likely to offend any section of the population, gender, racial group etc, shall not be allowed.

(vi) Furthermore, Article 2.2.3 of PSA states categorically that the SBIS shall ensure the following:

(vii) No programming (including news bulletins) other than paid for commercial advertising should be allowed to promote an individual or organisation;

(viii) A medium should be established through which information from politicians should be communicated to reporters. Executive producers and editors are to monitor information flow from members of the public through producers and reporters meant for broadcast purposes;

(ix) Individual sections must adhere to administratively and professionally drawn set of responsibilities in order to avoid overlapping of responsibilities;

(x) Editors and executive producers shall ensure that all broadcasting has been personally approved by them prior to broadcast, at all times;

36 Mthembu, M, A critical evaluation of state broadcasting and recommendations for future transformation campaign direction. 2006.

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(xi) The news coverage of the activities of Their Majesties and the Head of Government shall be coordinated by a pool of full-time, appropriately trained and experienced staff members, in respect of both local and international activities;

(xii) Issues of national interest such as development should feature prominently during broadcasts;

(xiii) All broadcasts (programmes and news) that raise issues relating to Executive Arm of Government should receive a timely response from the concerned Ministry or the Government spokesperson before being aired; shall include issues raised in Parliament.

According to the Swaziland Broadcasting and Information Services Code of Conduct and Operational Procedures of 1987, all state events and occasions which involve the presence of the King, Indlovukazi (Queen Mother) and Prime Minister shall receive priority coverage.37 Article 3 of the same code stipulates that SBIS is a national radio station fully supported by the government and therefore broadcasters must abide by the policies and should not allow their political affiliations to intrude into broadcast messages.38

However, this is contrary to Public Service Broadcasting (PSB) which caters for all people irrespective of their social or economic status in society. It provides programming for everyone; be it the general public or minority audiences. Bussiek (2004) states that it is broadcasting service to the general public in all its variety, diversity and controversy. UNESCO defined public broadcasting as:

A meeting place where all citizens are welcome and considered equals. It is an information and education tool; accessible to all and meant for all, whatever their social or economic status. Its mandate is not restricted to information and cultural development public broadcasting must also appeal to the imagination, and entertain. But it does so with a concern for equality.39

According to Hlatshwayo (2011), even in the private media editorial independence is compromised by editors and media owners who have a cosy relationship with the government and big corporations.40 The private media owners and editors ingratiate themselves with big corporations that reciprocate with handing out freebies to the editors and journalists.41 Such tendencies not only compromise the editorial independence of the media but also contravene

37 Swaziland Broadcasting and Information Services Code of Conduct and Operational Procedures, 1987.38 Ibid.39 Bussiek, C & H, The Media: Making Democracy Work, Tool Box 3: Public Broadcasting, Friedrich-Ebert-

Stiftung, Media Project Southern Africa, 200440 Hlatshwayo, V, The reality of media freedom in Swaziland under the new constitutional dispensation. A


41 So this is Democracy? State of media freedom in Southern Africa. Swaziland National Review. 2012.

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Article 3(1) of the Code of Ethics for Journalists which states that: Journalists should not accept bribes or any form of inducement to influence the performance of his/her professional duties. 42

In an interview, Swaziland Coalition of Concerned Civil Organisations (SCCCO) Director, Lomcebo Dlamini, observed that the editorial independence of the private media is not only compromised by political pressure but also by brown envelope journalism where media practitioners are given money or other benefits to push or hide information or stories.43

One example of editorial independence not being respected in practice is when the Attorney General threatened the editor of the Times of Swaziland Sunday with the STA if he allowed the president of the banned political party Peoples United Democratic Movement (PUDEMO), Mario Masuku, to continue writing for the weekly. Masuku challenged this ban in 2010. However, the attorney-general wrote the Times of Swaziland Newspaper Group a letter advising management to stop publishing Masukus column because he alleged that the former was a member of a terrorist entity.44 The newspaper management obliged and stopped him from writing his column.

Government also uses threats to withdraw advertising as a common strategy to silence critical media. As a result, the small fraction of privately-owned media trying to uphold editorial independence is being crippled financially and politically. At the core of this issue is lack of the role of the media in society, the right of society and of the media to access information and the citizens right to public information.

When asked whether they believed that external bodies or actors (outside of the editorial team) do not influence the editorial content of the media, this study found that 50% of respondents disagree with this statement while 22.5% said they somewhat disagree; 17.5% said they somewhat agree; and 10% said they agree with the statement. This indicates that most of the respondents believe that editorial content is, in fact, influenced by external actors outside the editorial bodies.

Table 4: I believe that external bodies/actors (outside of the editorial team) do not influence the editorial content of media.

Overall

Agree 10.0%



Disagree 50.0%

No opinion 0.0%

42 Swaziland National Association of Journalists, Code of Ethics for Journalists. 2006.43 Interview with SCCCO Director Lomcebo Dlamini. October 16, 2015.44 Times of Swaziland, March 21, 2010.

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More telling are the responses to the question Have you ever been faced with attempts by external actors (whether political or commercial) to interfere in the editorial content of an article or programme that you were working on? To this question, 65% of the journalists interviewed answered Yes, more than once; 5% answered Yes, once; while 15% answered No, never and 15% had no answer to the question. Looking critically at these results, 70% of respondents had, at least on one occasion, experienced some form of interference in the editorial content of an article or programme that they were working on.

A very small proportion of the respondents said that they had never experienced this. However, what is curious is the proportion of respondents who said that they had no answer (15%). This may suggest that some respondents might have been responding with caution out of fear of reprisals. Another possible explanation might be the uncertainty in the level of interference, which in some cases might have been vague or latent. Other possible explanations for this result may indeed exist.

Table 5: Have you ever been faced with attempts by external actors (whether political or commercial) to interfere in the editorial content of an article or programme that you were working on?

Overall

Yes, more than once 65.0%

Yes, once 5.0%

No, never 15.0%

No answer 15.0%

These results suggest lack of editorial independence in both private and state media and two recent cases illustrate this. In 2014, the government interfered with the editorial independence of the privately-owned Times of Swaziland as well as the state broadcaster. The government ordered the former, Times of Swaziland, to retract a story about the spending of E208 million (US$20,800,000) by the authorities reportedly sourced from Principal Secretary in the Finance Ministry, Khabonina Mabuza, to the Public Accounts Committee (PAC) in Parliament. In another case, the management of the state broadcaster suspended information officer, Thandiswa Ginindza, from air after she broadcast a live interview with the Chairman of the Ministry of Labour and Social Security and Member of Parliament, Jan Sithole, on the countrys disqualification from benefitting from the USAs African Growth Opportunity Act (AGOA). A controversy surrounded the number of benchmarks that Swaziland required to meet before being reinstated as a beneficiary. But the main reason for her suspension was that MPs are banned from using the state broadcaster.

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1.4 Journalists right to protect their sources is guaranteed in law and respected in practice

A journalists sources are the life blood of his or her profession. Without trusted sources, a journalist cannot obtain information that is not already in the public domain. However, sources will often be prepared to provide critical information only if they are confident that their identities will remain confidential and will be respected and protected by a journalist. This is particularly true of whistleblowers that are able to provide journalists with information regarding illegal activities, whether committed by companies or government personnel. It is recognised that without such protection of sources, information that the public has a right to know would not be given to journalists, especially those pursuing investigative reporting.45

Article 1(1) of the Code of Ethics for Journalists states the following in relation to journalists right to protect their sources: The duty of every journalist is to write and report, adhere to and faithfully defend the truth.46 In addition to this, Article 7(1) of the same code states that journalists are bound to protect confidential sources of information.47

There is also legislation that allows for journalists to protect their sources. The 2006 Anti-Corruption Act, for example, provides for protection of whistleblowers and thereby providing journalists with a small amount of protection.

However, several statutes also exist that undermine a journalists duty to protect his or her sources. The Criminal Procedure and Evidence Act of 1938 requires every citizen over the age of 18 to be a competent and compellable witness. As such, according to the law, all citizens, including journalists, can be required to divulge their sources under all circumstances; failure to do so could result in a conviction for contempt of court. For example, in April 2015 Swazi Observer news reporter, Nomile Hlatshwayo, was forced by the High Court of Swaziland to reveal her source of information in her story about corruption in one of the public enterprises. She said she had to appear before court even though she dropped the story after the management of the public company threatened to withdraw advertising. It is noteworthy that panellists in a recent African Media Barometer Swaziland 2014 research exercise stated that any person called to testify in court cannot refuse to do so because the state will send you to jail for 30, 60 then 90 days until you do comply and divulge your source.48

Section 34 of the Magistrates Courts Act, No. 66 of 1939, also contains provisions that can be used to compel a journalist to reveal confidential sources; however, to date this has not happened. It provides that any person who has been subpoenaed to give evidence or to produce any documents and who fails to attend, or to give evidence, or to produce such

45 Limpitlaw, J. Media Law Handbook for Southern Africa Volume 1. Konrad-Adenauer-Stiftung, Regional Media Programme, Johannesburg. 2012.

46 Swaziland National Association of Journalists, Code of Ethics for Journalists, 2006.47 Ibid.48 Ibid.

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documents may be sentenced by the court to a fine, and, if the fine is not paid, to a period of imprisonment. Under the same Act, the court can also issue a warrant for the persons arrest so that he/she may be brought to court to give evidence.49

Although the Parliamentary Privileges Act of 1968 relates to the activities of Parliament under the old 1968 Constitution, it is important to note that the Act has not been repealed and so continues to be in force. Section 18 of the Act empowers Parliament or any of its committees to order any person to attend before Parliament and to produce any book or document under his or her control. Section 11 makes it an offence not to comply, and the penalty is a fine or imprisonment or such lesser penalty as may be provided for in the Parliaments Standing Orders.

The Public Accounts Committee Order of 1973 relates to the activities of the Public Accounts Committee (PAC) under the old 1968 Constitution and it also continues to be in force. Section 4(1) of the Public Accounts Committee Order empowers the committee to conduct enquiries and it may summon any person to give evidence at an enquiry or to produce any relevant book or other document. Failure to appear before the committee, to answer any question or to produce the required book or document is an offence in terms of Section 5, and the penalty is a fine of E400 (US$40) or imprisonment not exceeding two years or both.

Section 10 of the Official Secrets Act of 1968 empowers the commissioner of police, whenever s/he believes that an offence under the Official Secrets Act has been committed and a person is able to furnish information about it, to require such person to provide the necessary information. If the person fails to do so, he or she shall be guilty of an offence, and the penalty upon conviction is a fine, a period of imprisonment or both.50

Finally, under the Control of Supplies Order of 1973, Section 5 empowers the Principal Secretary for the Ministry of Commerce, or anyone authorised by him/her, without prior notice, to enter any premises, make an examination and take samples of any goods found there for the purposes of obtaining any information or ascertaining the correctness of any information. Theoretically, this could be used to seize journalists computers or notebooks, thereby compromising journalists sources, though to date it has not been used.51

All this said, when questioned, participants in the MDI survey highlighted that source protection was not a major issue with media houses and that incidences where journalists were coerced to reveal their sources were not common.




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To the statement I feel that I can protect the confidentiality of my sources without fear of prosecution or harassment, 41% of the journalists interviewed said they agree; 28.2% said that they somewhat agree; 10.3% said that they somewhat disagree; and 20.5% said they disagree.

Table 6: I feel that I can protect the confidentiality of my sources without fear of prosecution or harassment.

Overall

Agree 41.0%



Disagree 20.5%

No opinion 0.0%

These results indicate that the majority of journalists are able to abide by Article 7(1) of the Code of Ethics for Journalists and are able to protect the confidentiality of their sources without fear of prosecution or harassment. However, the number of respondents who somewhat disagree and disagree is significant, implying that even if most journalists feel they can protect their sources, some feel that they cannot guarantee the protection of the confidentiality of their sources. This may be as a result of past experience(s) where they were unable to protect the confidentiality of their sources (perhaps forced to reveal who their sources were), or the feeling that the media environment is unpredictable such that at any time they may suddenly find themselves in a situation where they may be forced to reveal their sources.

1.5 Public and civil society organisations (CSOs) participate in shaping public policy towards the media

The National Development Strategy (NDS) states the governments intention to formulate a media policy through a fully consultative and participatory approach.52 Ordinarily, this would involve consulting with the public and the various civil society organisations (CSOs) in the country. It does, however, seem unlikely in an environment where authorities routinely attempt to prevent meetings and demonstrations intended to generate ideas and sensitise government to issues by withholding consent or taking civil society leaders to court.53

52 Government of Swaziland. Swaziland National Development Strategy. Mbabane: Government of Swaziland. 1999. Pp.10-11.

53 United States Department of State. Swaziland 2013 Human Rights Report, Washington DC: Bureau of Democracy, Human Rights and Labor. 2013.

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Participants in the African Media Barometer Swaziland 2014 study said in general there is no meaningful consultation on media legislation among the state and civil society actors. According to the study, where consultation does take place it is just about ticking the box and suggestions from civil society, including media advocacy groups, are not taken on board.54 As a result, the final product tends not to be a true reflection of the discussion.

However, in the past, interventions from CSOs have had some positive results such as the case of lobbying the MPs that prevented the passing of the Media Council Bill No.9, 1997, which if legislated, would have created a statutory media council. Rallying behind the media bodies, the CSOs swayed the Swaziland Media Council Bill 1997 Select Committee by favouring a media self-regulatory body. This saw the birth of the Media Complaints Commission of Swaziland (MCCS) in 2011. However, the government, through the ICT Ministry, secretly crafted the Swaziland Media Commission Bill Draft Bill 2009, which seeks to establish a statutory media regulatory body known as the Swaziland Media Commission. This bill was endorsed by Cabinet and opened up to parliamentary debate in 2011. What is now left is for the House of Assembly to enact the bill. The media stakeholders have objected to the bill as it is set to usurp the regulatory powers of the self-regulatory MCCS that is already fully operational. The ICT Minister has indicated that the Swaziland Media Commission is necessary to improve the standard of journalism in the Kingdom.

In the survey conducted for this report, opinions on the statement on whether relevant stakeholders have the opportunity to participate in and influence the development of media laws and policies in Swaziland were spread fairly equally among the five responses the journalists had to choose from: 23.7% agree with the statement; 23.7% somewhat agree; 18.4% somewhat disagree; 23.7% disagree; and 10.5% had no opinion on the matter.

It is interesting to note that almost half of the respondents felt, at least to some extent, that relevant stakeholders in Swaziland have an opportunity to participate in and influence the development of media laws and policies. However, 42.1% disagree or disagree to some extent with this same notion. They hold the same view with the United States Department of States observations that the Swaziland environment is characterised by the interruption of meetings of CSOs as well as of public demonstrations by various state apparatuses such as the police.55

54 African Media Barometer Swaziland, 2014. 55 United States Department of State. Swaziland 2013 Human Rights Report. Washington D. C.: Bureau of

Democracy, Human Rights and Labor. 2013.

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Table 7: Relevant stakeholders have an opportunity to participate in and influence the development of media laws and policies.

Overall

Agree 23.7%



Disagree 23.7%

No opinion 10.5%

In a discussion paper titled Swaziland Democracy and Political Participation, Lomcebo Dlamini, who is SCCCO Director, noted that if the dialogue is to be genuine and meaningful, the existing limitations on the freedoms of expression (including of the media), association and assembly will also have to be removed.56

When interviewed, the SCCCO Director said civil society is not doing as much as it could in influencing media development and policies. She stated that the media and civil society need to recognise that their roles are inextricably linked and that their relationship can be complementary and beneficial to both. She acknowledged that the reality is that civil societys work on media freedom is on an ad hoc basis and dependent on the particular mandate of the CSOs. The CSOs have capacitated the MPs on the importance for access to information. Dlamini explained:

Analyses and issue papers have been submitted to MPs to equip them to debate effectively on media issues. Civil society raises these issues when engaging at regional and international levels SADC, AU, UN, EU and Commonwealth.57

B. Regulatory System for Broadcasting

1.6 Independence of the regulatory system is guaranteed by law and respected in practice

The Swaziland Communications Commission (SCCOM) has to comply with regional and international instruments such as the African Charter on Human and Peoples Rights (ACHPR), Declaration of Principles of Freedom of Expression in Africa (DPFEA) and the Windhoek Declaration which Swaziland has ratified. Until 2013, there was no independent broadcast regulatory body in the country. The government used the Posts and Telecommunications Act of 1962, which was amended and became the Swaziland Posts and Telecommunications Act of

56 Dlamini, L. Swaziland Democracy and Political Participation Discussion Paper: A review by AfriMAP and Open Society Initiative for Southern Africa. 2013.

57 Interview with SCCCO Director Lomcebo Dlamini. October 16, 2015.

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1983, to control broadcasting activities and grant broadcasting licences. This Act allowed the Swaziland Posts and Telecommunications (SPTC), a public enterprise, to allocate frequencies and issue broadcasting licences and did not provide for an independent broadcasting regulator.58 This limited the granting of the frequency spectrum and broadcasting to the alternative broadcasting media. The government was thus able to stifle media freedom by not liberalising the airwaves. Public service broadcasting and community broadcasting was out of question.59

Also in 1983, the Swazi government enacted the Swaziland Television Authority Act (STVA) which mandated the state to oversee the television broadcasting industry. It provided the regulatory framework for the establishment of television stations, issuance and withdrawal of licences and collection of television receiver licences.60

With the enactment of the Swaziland Communications Commission Act, 2013, and Swaziland Electronic Communications Act, 2013, the Swaziland Government established the Swaziland Communications Commission (SCCOM) as an independent regulator of the increasingly converging broadcasting and telecommunications sectors. Under the general functions of the SCCOM, Section 6(c) of the Act empowers the Commission to regulate and supervise the provision of radio and television broadcasting services and the content of these services.61 Its primary function is to ensure the compliance with national and international communication standards and obligations laid down by international communications agreements to which Swaziland is a party.

According to SCCOM Company Secretary, Sicelo Simelane, the Swaziland Communications Commission Act transfers the regulatory powers and functions of the SPTC relating to communications, as provided under the Swaziland Posts and Telecommunications Act, 1983, to the Commission.62 It also transfers the regulatory functions of the Swaziland Television Authority, relating to the issuance of a licence to provide a television service, provided under the Swaziland Television Authority Act, 1983, to the Commission. In term

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Assessment of media development in Swaziland based on ...unesdoc.unesco.org/images/0025/002592/259242E.pdf · Background Information..... 14 Methodology ... LUCT Limkokwing University