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Navigating the Shadows: Ambiguous laws and freedom of expression in Africa

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The Eswatini Supreme Court. Citizens, journalists, civil society, human rights defenders and activists are constantly open to charges including of insult and sedition across Africa, the writer says, adding that in Eswatini, two former members of parliament were convicted under prevention of terrorism legislation, which has a judgment on its constitutionality pending in its Supreme Court. – Picture: Southern Africa Litigation Centre (SALC)

By Melusi Simelane

Introduction

Freedom of expression, a fundamental right crucial for open dialogue, critical thinking, and societal progress, is under threat in Africa due to outdated and ambiguous legal frameworks. Citizens, journalists, civil society, human rights defenders and activists are constantly charged with a variety of insult, sedition, subversive, anti-terrorism and defamation offences across Africa.

In Eswatini, two former members of parliament were convicted under the prevention of terrorism legislation, which has a judgment on its constitutionality pending in the Supreme Court. In Malawi, a citizen was convicted for posting an animation video depicting the president. In Botswana, The Southern Africa Litigation Centre (SALC) is challenging the penal code provision on ‘publishing alarming information’ because it is vague and limits press freedoms.

While some work is being done to reverse these colonial provisions, some states are reintroducing them by including them in new legislation. The reimagining of these provisions is seen through quick enactments of laws, for instance those that seek to prevent cybercrimes, while civil society regulations legislation is used in some.

Kenya’s Section 77

On May 18, 2024, the Kenyan Supreme Court struck down Section 77 of the Penal Code, intended to prevent subversion. However, this law led to uncertainty due to its broad language and lack of a clear definition of provocative behaviour. This ambiguity allowed for arbitrary interpretation, creating a chilling effect that stifled public discourse and undermined democracy.

International human rights mechanisms influenced the court’s decision, including the UN Human Rights Committee’s General Comment 34, which called for decriminalising defamation and insult offences. The court ruled that Section 77 was vague and overbroad, as it failed to limit freedom of expression explicitly and did not provide precise definitions for the terms used in the offence.

Regional Phenomenon

The issue of vague laws affecting freedom of expression has garnered attention at the regional level, with calls for decriminalising defamation and similar offences such as sedition and repealing restrictive media and blasphemy laws.

Legal reforms in this regard have positively impacted freedom of expression in Africa. The African Commission has also called for outright repealing sedition and criminal defamation offences. These laws pose a significant threat to freedom of expression and human rights, and there is a need for a concerted campaign to address them comprehensively.

Inexplicable delays in Eswatini

In 2016, the High Court of Eswatini declared the offences of sedition and subversion unconstitutional, which made the Sedition and Subversive Activities Act ineffective. It also declared parts of the Suppression of Terrorism Act unconstitutional, specifically the definitions of terrorist acts, terrorist groups, and the offence of supporting terrorist groups.

The court found that these provisions violated the rights to freedom of expression and association and that the State had failed to show that the restrictions on the applicant’s rights were reasonable or justifiable. This decision was seen as a significant ruling in upholding the rule of law against the absolute monarchy.

After a six-year delay, Eswatini’s Supreme Court controversially condoned and reinstated the government’s appeal against the 2016 high court judgment. This action raised concerns about disregarding the rule of law and proper judicial procedures to accommodate what seemed to be a political agenda.

The late human rights lawyer Thulani Maseko criticised the Supreme Court’s condonation judgment, stating, “It is clear that there is one law for the regime and its supporters and another for those who oppose it. This judgment represents supreme injustice from the Supreme Court.” SALC expressed concerns that such jurisprudence could weaken the entire legal system and raise questions about the independence of the judiciary.

A year has passed since the Supreme Court heard the appeal, with the Chief Justice presiding over the case. This delay is consistent with my observation in 2021 that the judiciary in Eswatini seems inactive on matters related to advancing human rights, displaying apparent disinterest in protecting fundamental freedoms outlined in the Constitution.

This was evident in a delay in issuing a judgment on the freedom of association case brought by eSwatini Sexual and Gender Minorities, an LGBTIQ+ organisation seeking the right to associate under current legislation.

Apex Courts: Last Hope for Freedom Of Expression

A constitution that protects citizens from unconstitutional legislation requires an unwavering commitment to justice. As citizens rely on the justice system to safeguard their rights and freedoms, human rights defenders must emphasise the need for free and fair access to justice. Efficient court processes characterised by expedited judgments should be the norm.

The Supreme Court plays a critical role in the justice system and should demonstrate efficiency, especially in handling matters of constitutional significance. Mbekezeli Benjamin and Nurina Ally noted that an apex court ‘reinforces democracy and accountability’ when critiquing the South African constitutional court for delaying issuing judgements.

I echo these sentiments and emphasise that an apex court is not only an institution that strengthens democracy and accountability but also the last resort for individuals denied protection, liberty, and freedom.

Freedom of expression is a guiding light that shows the way to a fairer and more democratic Africa. It is a basic right, protected by international and regional laws, and resonates across different countries and cultures.

Within the boundaries of the law, individuals have the right to seek, receive, and share information, whether through speech, art, or any other form of communication. By recognising the significance of this right, African states can create fair and inclusive societies that respect the rights of all people. Let’s support this freedom, as it is crucial for progress and positive change.

As I commend the Kenyan Supreme Court’s ruling, I call on the Eswatini Supreme Court to consider the impact of delaying the judgment on the State’s appeal. Many citizens in Eswatini live in fear due to uncertainty regarding the sedition and subversion law and the Prevention of Terrorism Act, which threatens freedom of expression.

Melusi Simelane is Civic Rights Programme Manager – Southern Africa Litigation Centre (SALC)