With the ubiquity of social media, governments in Southern Africa are coming up with several regulations under the pretext of regulating the scourge of misinformation, yet they are using these laws to target dissenting voices, civil society, the media and opposition political parties.
In this regard, the respective governments have come up with a number of regulations, which oftentimes are ominous for the future of freedom of expression and the media in those countries.
It is worrisome to note that when the respective governments intervene through legislation, under the pretext of regulating behaviour during pandemics such as the Coronavirus when the pandemic ends, the restrictive and repressive regulatory pieces are likely to remain entrenched in the member states’ statute books.
Worse off, the laws are being enacted without the much-needed parliamentary scrutiny and public participation as they are birthed through presidential decrees and emergency powers in the majority of cases.
This is irrespective of the fact that freedom of expression and the right to privacy are constitutionally guaranteed in most Southern African countries. It is, therefore, trite to note that these regulations to curb fake news could be in violation of constitutionally enshrined rights.
The Zambia Information and Communications Technology Authority (ZICTA), recently warned Zambians to desist from circulating fake and unverified information regarding the coronavirus using various ICT platforms. ZICTA spokesperson Ngabo Nankonde was quoted as saying the circulation and publication of falsehoods with intent to cause fear and alarm to the public, is an offence and is prosecutable under the Penal Code.
In addition, Nankonde said, the authority would work with Zambia Police Service to ensure those who break the law by circulating falsehoods or misleading information on COVID-19 on any ICT platform will be brought to book.
While there is a need to curtail the spread of misinformation, it is worrying that ZICTA is reverting to a law that was invalidated by the courts. Section 67 of Zambia’s Penal Code outlawed the spreading of false information likely to cause fear and alarm.
However, in the case of Chipenzi vs The People, a High Court found that the section was unconstitutional. It is thus quite surprising that the ZICTA would allude to this section of the Penal Code.
Zambia is in the process of drafting a Cyber Security Bill, whose contents are still unknown. Fake news and misinformation will no doubt be covered under this proposed law. We will continue to monitor and determine the effect this law on freedom of expression and the media.
In Botswana, publishing of false statements constitutes an offence under Section 59 of the Penal Code. Section 59 (1) says: “Any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of an offence.”
Furthermore, the country’s laws make it a criminal offence to transmit false information through the telecommunications system. In that regard, an official of the Botswana Patriotic Front, Justice Motlhabane and two online journalists, Letsogile Bapuri and Oratile Dikologang, who run the online platforms, Botswana Trending News (BTN) and Botswana People’s Daily News (BPDN), were arrested on allegations of releasing and publishing information that was false with the intent of deceiving the public. The case is still before the courts.
Fake news regulations are usually strict liability laws, where the onus is on the accused to prove that what they communicated is not false news, rather than on the state to prove that a crime was committed. They negate the maxim that an accused is “innocent until proven guilty”. It is for this reason that there is little justification for such laws in a democratic country.
There is also the added risk that authorities may use fake news regulations to clamp down on freedom of expression, dissent and the media.
Authorities have warned citizens against publishing, forwarding or creating fake news and misinformation about the novel coronavirus in the country. Furthermore, the Tanzania Communications Regulatory Authority (TCRA), was ordered to make follow-ups on those who fabricate news through social media.
Tanzania already has tough laws pertaining to fake news, particularly for online content creators. In April, Talib Ussi Hamad, a journalist with the Tanzania Daima daily newspaper, was suspended for six months for his reports on the COVID-19 outbreak in that country.
Prior to that, Tanzania had suspended the online licence of Mwananchi daily newspaper over a picture of President John Magufuli that it circulated online. In the picture, President Magufuli was surrounded by many people, with the newspaper asking what this meant in the wake of advice to prevent the spread of COVID-19.
There is concern that Tanzania could be using such regulations to curtail any criticism of the present government. Such practices are anathema to democracy and freedom of expression. We urge the authorities in Tanzania to come up with laws that enhance freedom of expression rather than those that curtail these fundamental rights.
In its COVID-19 lockdown regulations, Zimbabwe came up with a law that penalises the publishing of fake news with up to 20 years in jail – Statutory Instrument 83 of 2020. A number of people have already been arrested and charged under these regulations, with their cases still pending in courts.
In addition, Zimbabwe recently gazetted the Cybersecurity and Data Protection Bill, which in Section 164C criminalises the use of a computer or information system to avail, broadcast, distribute data knowing it to be false and intending to cause psychological or economic harm to someone. This also seems to be targeted against the spread of false information on social media.
As with such similar laws across the region, this provision is unclear on who will be the arbiter of the truth. As we have already pointed out, assumptions should not be made of the fact that the accused person had knowledge of the falsity of the statement.
This is particularly so taking note of the magnitude of the use of the Internet, which can make it difficult to determine the origin and authenticity of a message. This means that individuals will receive messages voluntarily or involuntarily.
MISA Zimbabwe position
Regulating against fake news and promoting freedom of speech needs a fine balancing act, which is often almost impossible to achieve. In this regard, regional nations are urged to err on the side of protecting their citizens’ rights to freedom of speech by not promulgating misinformation laws.
Instead, governments, in collaboration with civil society and citizens should come up with an all-inclusive approach to find ways of dealing with false news, without necessarily resorting to regulations.
This could be done by freeing the airwaves and allowing more print and online news as opposed to choking the media industry inadvertently leads to the spread of fake news.
These laws should lean more on the side of entrenching fundamental human rights in line with the constitutional provisions and regional and international instruments that safeguard these freedoms such as the African Declaration on Internet Rights and Freedoms and Declaration on the Principles of Freedom of Expression and Access to Information in Africa, among others.
MISA Zimbabwe Regional Solidarity statement