COVID-19 and Africa Symposium: The COVID-19 Pandemic–A Dark Cover for Cracking Down on Free Expression in Eswatini and Zimbabwe

[Justice Alfred Mavedzenge is a constitutional law academic and a legal adviser at the International Commission of Jurists, Africa Regional Programme.]

Prior to the outbreak of COVID-19, Zimbabwe and Eswatini had a well-established record of cracking down on freedom of expression. In both countries, criticising State authorities has in the past frequently earned human rights defenders a lengthy jail term, and at times even brutal punishment – including torture.

In Eswatini, the 2015 case of Thulani Maseko and Bheki Makhubu comes to mind.  In Zimbabwe, author Jamal Jafari has captured the state’s institutionalised and long standing tradition of cracking down on free expression.

True to Professor Steven Levitsky and Professor Daniel Ziblatt’s predictions and observations about natural disasters and authoritarianism in their 2018 book How Democracies Die: What History Reveals About Our Future, the COVID-19 pandemic has provided an opportunity for the regimes in Eswatini and Zimbabwe to consolidate their hegemony, in part by increasing attacks on free expression. This is notwithstanding the international and domestic legal obligations binding the two States to respect and promote freedom of expression.  

International and domestic standards on free expression

Articles 19(2) of the International Covenant on Civil and Political Rights (ICCPR) and 9(2) of the African Charter on Human and Peoples’ Rights (African Charter) protect the right to freedom of expression and information. Zimbabwe and Eswatini are parties to both treaties. In addition, both States have domesticated these rights in their Constitutions. In terms of article 19 of the ICCPR, freedom of expression includes the freedom of every person to seek, receive and impart information and ideas of all kinds through any media of their choice. The right to freedom of expression includes freedom of the press. As was noted by the United Nations Human Rights Committee:

“A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function.”

Freedom of expression is not an absolute right. Article 19(3) of the ICCPR, permits restrictions to be imposed against freedom of expression, for only certain specified legitimate purposes, one of which is protecting public health. However, as has been underscored by the United Nations Human Rights Committee, and  captured in the Siracusa Principles as well as in the domestic Constitutions of Eswatini [s37(1)] and Zimbabwe [s86(2)], restrictions on human rights may only be imposed when it is strictly necessary to do so and such restrictions must be proportionate. The United Nations Human Rights Committee has said:

“….restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…”

Thus, in the context of the COVID-19 pandemic, in order to be proportionate, the restrictions must not infringe upon the freedom of expression beyond what is strictly necessary to protect public health.

Eswatini and Zimbabwe’s measures against COVID-19

In response to the COVID-19 pandemic, Zimbabwe declared a state of disaster, while Eswatini declared a state of emergency. Despite these differences in approach, COVID-19 response measures implemented by both countries are legally required to comply with the above described standards of necessity and proportionality. As part of their COVID-19 response measures, both Eswatini and Zimbabwe enacted regulations which restricted freedom of expression by criminalising the spreading of false information.

In Eswatini, the regulations criminalised the “[spreading] of any rumour or unauthenticated information regarding COVID-19” and spreading “any rumour or unauthentic information regarding any measure taken by the Government to address COVID-19.”  Contravening these rules is punishable by a fine of up to the equivalent of USD 1 295 or imprisonment up to five years. These regulations are vague, and possibly are in contravention of the principle of legality,  because they do not define what “rumours” mean. Inevitably, they disproportionately undermine freedom of expression by criminalising the publication of any criticism of government’s policies on the COVID-19 pandemic. 

As is reported by the Committee to Protect Journalists, two journalists fell victim to these regulations. Eugene Dube published an article that was critical of government’s response to the COVID-19 pandemic. In this article, Dube expressed his opinions regarding the weaknesses in the government’s response to the pandemic. The police raided his home on 23 April 2020, confiscated his work documents and information gadgets, and interrogated him for seven hours before releasing him without charge. Fearing for his life, Dube is said to have fled into exile. In a similar fashion, the police also arrested another journalist, Mfomfo Nkhambule, on 24 April 2020.  

The government claimed that these journalists had been arrested for spreading “fake news” about government’s COVID-19 measures. This bears testimony of the unnecessary and disproportionate nature of the restrictive measures on freedom of expression, and how these regulations were used to harass and intimidate journalists and the public.

Similarly, Zimbabwe enacted vague and overbroad regulations which state that:

“any person who publishes or communicates false news about any public officer, official or enforcement officer involved with enforcing or implementing the national lockdown in his or her capacity as such, or about any private  individual that has the effect of prejudicing the State’s enforcement of the national lockdown, shall be liable for prosecution under section 31 of the Criminal Law Code…”

This regulation criminalizes the spreading of false information regardless of the publisher’s intention or whether any harm was or could have been foreseen by the publisher. More importantly, this regulation exposes journalists and the public to harassment as they can be arrested and detained for up to 24 hours, on mere suspicion that they may have communicated false information. Although, there are no publicly reported cases of arrests (as yet) for contravening this particular regulation, its vagueness has had a chilling effect on the freedom of expression, as confirmed by MISA in its statement. The President of Zimbabwe is also on record, threatening citizens that they would be jailed for 20 years if they spread false information.

In addition to this regulation, Zimbabwe imposed a national lockdown which was used by state authorities as an excuse to harass journalists through arrests, detentions and torture. A case in point is that of journalists Leopold Munhende and Munashe Chokodza who were arrested when they were coming from work. Despite identifying themselves as journalists by showing their press cards, they were made to lie down on the ground and were  beaten with truncheons and whips. Another case is that of Frank Chikowore and Samuel Takawira who were arrested during the course of their work and were prosecuted for contravening the lockdown orders.  Although the two were eventually found not guilty of the charges, they had spent four nights in detention and four months on trial. Several other cases of similar harassment of journalists and citizens were reported.

Conclusion

As predicted by Professors Steven Levitsky and Daniel Ziblatt’s in their 2018 seminal book, the COVID-19 pandemic has provided certain autocratic regimes with an opportunity to crack down on democratic freedoms.

Zimbabwe and Eswatini are classic examples which illustrate this thesis. The governments of the two States have enacted and implemented regulations which unnecessarily and or disproportionately undermine the freedom of expression. This constrains the press and the public from enforcing transparency and accountability on the management of the COVID-19 pandemic, public resources and other issues.