THE STATE OF PRESS FREEDOM IN SOUTHERN AFRICA 2020-2021
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THE STATE OF PRESS FREEDOM IN SOUTHERN AFRICA 2020-2021
This document is based on HAR/CI/2022/1 country reports for Angola, Botswana, eSwatini, Lesotho, Malawi, Mozambique, Namibia, Tanzania, Zambia and Zimbabwe. The country reports were commissioned by MISA. May 2022 EDITORIAL COMMITTEE: Nashilongo Gervasius-Nakale, Kholwani Nyathi, Reyhana Masters DESIGN AND LAYOUT: Garikai Tunhira UNESCO, the Swedish Embassy, Fojo Media Institute, International Media Support (Fojo-IMS), The Sigrid Rausing Trust and the National Edowment for Democracy, hereinafter refered to as “The Funding Partners” are pleased to support the State of Press Freedom Report for Southern Africa 2020- 2021 with limited financial assistance. However, since this report has been independently developed by MISA, therefore, the funding partners have no influence over the content. The authors will be responsible for the choice and the presentation of the facts contained in the paper and for the opinions expressed therein, which will not be necessarily those of the funding partners. The designations employed and the presentation of the material will not imply the expression of any opinion whatsoever on the part of the funding partners concerning the legal status of any country, territory, city or area, or of its authorities or concerning the delimitation of its frontiers and boundaries. CC-BY-SA licence Open Access COVER PHOTO: Police arrests during Reverend Thuso Tiego’s protest in September 2021 in Gaborone, Botswana. The priest had called for President Mokgweetsi Masisi’s resignation and he was arrested. CREDIT: Thalefang Charles
STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 1 Independent journalist Thembeka Gamedze (left) celebrates with women rights activist Nontobeko Mbuyane after being released at the Mbabane Police Station. The jour- nalist known for exposing corruption was targeted by the police and arrested after she tried to take pictures of traffic officers, who were allegedly taking a bribe. CREDIT: Mciniseli Kunene
STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 2
Contents
Foreword: Digital surveillance and existential threat to freedom of expression /3
State of Press freedom in Southern Africa /4
Journalism under surveillance in Southern Africa / 10
Gender and ICT in Southern Africa / 17
Country Reports / 24
Angola: Media face new challenges despite early promises of improvement / 24
Botswana: Quietly, Botswana increasingly becoming hostile / 28
eSwatini: Covid-19, pro-democracy protests used to clamp down on free speech / 32
Lesotho: Attacks Against journalists intensify / 35
Malawi: New access to information law brings hope / 38
Mozambique: Armed conflict worsens plight of journalists / 41
Namibia: A beacon of hope for Press freedom / 44
Tanzania: Optimism in the media industry after a dark period / 47
Zambia: Hopes for a new dawn / 50
Zimbabwe: One step forwards, two steps backwards / 53
Media freedom violations / 56
The state of media and information literacy in Southern Africa / 59
References / 68
STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 3
Foreword A common retort is that
surveillance tools will aid in the
fight against crime.
DIGITAL SURVEILLANCE: However, there is need to
strike a balance between
AN EXISTENTIAL fighting crime and protecting
citizens’ rights, such as the
THREAT TO FREEDOM OF
right to privacy and to access
information.
EXPRESSION Building up on last year’s
World Press Freedom Day,
which recognised information as
T
a public good, in 2022, we can
HE internet is that governments and big also argue that transparency is
increasingly becoming corporations are working to a public good.
ubiquitous, thereby undermine the right to privacy
enhancing the exercise by acquiring advanced software Governments should be
and enjoyment of to spy on citizens and, by transparent about what
citizens’ rights to access extension, journalists. information they collect from
to information, freedom of citizens and what they intend
expression and the broader The acquisition of digital to use it for.
democratisation agenda. surveillance tools and other
forms of spyware will translate There should always be
Thanks to the internet and new to fewer people willing to transparency and accountability
digital technologies, journalists pass confidential information backed by judicial oversight
can now reach more audiences to journalists and this will on the data that they collect
than ever before. undermine the right to access to minimise infringements of
to information and ultimately citizens’ right to privacy.
The long and short of it is that affect democracy.
the citizens of Southern Africa Surveillance of citizens should
now have access to information not be indiscriminate and
at the tip of their fingers, should serve a clear purpose.
literally.
“UNESCO notes Among others, Principle 41
While the democratising
effect of the internet and new
that privacy is a of the Declaration on Principles
of Freedom of Expression and
technologies is beyond doubt, prerequisite for Access to Information in Africa
many governments are turning
to surveillance, which threatens
journalists to do provides that states shall not
engage in or condone acts of
the very democratic rights that their work and en- indiscriminate and untargeted
citizens seek to enjoy. sure access to fact- collection, storage, analysis
or sharing of a person’s
Protecting sources of based and reliable communications.
confidential information is at
the heart of journalism.
information. In addition, the International
Principles on the Application
UNESCO notes that privacy is of Human Rights to
a prerequisite for journalists to Communications Surveillance
do their work and ensure access In Southern Africa, Botswana, highlights that any form of
to fact-based and reliable Zambia and Zimbabwe are surveillance should be guided
information. some of the countries that have by the principle(s) of legality,
been reported to have acquired legitimate aim, necessity,
Privacy is necessary for sophisticated software to surveil adequacy and proportionality.
journalists to communicate their citizens. (1)
freely with sources, receive If left unchecked, digital
confidential information, These governments have so surveillance of citizens and,
investigate corruption, and far not been transparent about by extension, of journalists is
guarantee their safety and that how they intend to use these the latest threat to freedom
of their sources. technologies in the surveillance of expression, freedom of the
of their citizens. media, access to information
Therefore, it is worrying and the right to privacy.
STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 4
session of the UNESCO General
STATE OF PRESS FREEDOM
Conference. (1)
The Windhoek+30
IN SOUTHERN AFRICA Declaration, which places the
notion of “information as a
REPORT FOR 2021 public good” is building on
MISA’s guiding star — the
historic Windhoek Declaration
launched three decades ago.
BACKGROUND This historic text went on to
become a universal declaration
E
calling for a free, independent
VEN before the global on the media by State and and pluralistic press and gave
pandemic descended non-State actors, members birth to World Press Freedom
upon African shores, of political parties on all sides Day.
the media ecosystem as well as the private sector
in southern Africa protecting their illicit deals; The Windhoek+30
was afflicted with numerous l The rise in states’ use of Declaration, which places the
challenges. the law to persecute journalists notion of information as a public
and restrict the free flow of good at the heart of the media,
The COVID-19 pandemic information; provides an ideal springboard
brought the industry hurtling l The disturbing escalation for the media to ponder the
towards the minefield of issues of online violence particularly many issues at the core of its
it had been grappling with, into against female journalists. struggles, particularly when
sharper focus: engaging around the topic of
This pressure cooker situation, viability and sustainability.
l Dwindling advertising has to an extent battered and
revenue was now reduced to a bruised the media, but it has The Declaration calls upon
trickle; also fortified the sector to look all governments to create
l Increasing production inward and to strategically rail positive enabling environments
costs no longer mattered as against the constricting space for freedom of expression and
businesses closed down; and the controls around access access to information online and
l Already shrinking to information, media freedom offline in line with international
newsrooms were further and freedom of expression guarantees of these rights.
reduced in size as media outlets and at the same time connect
were forced to lay off staff; these rights to issues of media It urges governments to
l From dealing with sustainability, professionalism, ensure a free, independent
seepage of skilled staff online and offline safety and and pluralistic media, through
from newsrooms, there protection of journalists and in adopting appropriate legal
was a dramatic move to the particular women. measures in a transparent
introduction of shift work; manner and following
l From retaining its This inspiration that the adequate public consultation,
relevance amidst waning public media and media advocacy guaranteeing the exercise of
trust, the media was propelled to organisations are looking journalism free of governmental
capture the public’s fleeting and for can be found in the very interference, promoting
easily diverted attention away document that African freedom universal access to the internet
from unverified information on of expression and access and taking measures to reinforce
online platforms; to information advocacy the safety of journalists.
l New business models organisations presented to
came into consideration with the world during World Press Together with the revised
big tech like Google and Meta Freedom Day celebrations — African Commission on Human
attracting almost half of all the Windhoek+30 Declaration. and Peoples Rights (ACHPR)
global digital advertising spend, Declaration on Access to
media outlets are looking into In fact, the 18 November Information and Freedom of
new business models; adoption of the principles Expression, the Windhoek+30
l The sector’s deeper contained in the Windhoek+30 Declaration offers the most
commitment to maintaining Declaration is indicative of its solid building block to
and elevating professional significance. fostering media freedom
standards were being pitted safeguards which encompass
against the growing industry of The adoption was via a — safety, sustainability and
skilfully targeted mis- and dis- unanimous vote in favour of professionalism — from which
infodemic campaigns; Namibia’s resolution by the to springboard advocacy
l The escalation of attacks 193 Member States at the 41st initiatives.
STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 5
The reinforcement of rights Mitigating against the constant The role of the media became
and outlining of ideals are harassment of journalists, indisputable and there were
an antidote to governments’ the Zimbabwe chapter of the countries who of course
tendencies to utilise laws Media Institute of Southern recognised the media’s role
and policies that unjustifiably Africa filed an urgent chamber as a primary disseminator of
restrict the right to freedom application with the High Court information and one of the
of expression and access to seeking to put an end to the pillars of support in curbing the
information. police harassment of accredited spread of the pandemic.
journalists.
By unpacking and expanding With just 16 confirmed cases
on the contents, relevant MISA Zimbabwe also went on in the country, Namibia’s
stakeholders can formulate to file an urgent application ministries of Health and
and adopt advocacy strategies “compelling the government to Information jointly launched
towards the promotion and publish and disseminate with the COVID-19 Communication
protection of these rights. immediate effect information Centre in April 2020, replete with
on the private and public testing scheduled daily press briefings
and treatment centres at during which journalists were
national, provincial and district given the opportunity to ask
IMPACT OF hospitals allocated for dealing questions. (6)
with COVID-19 cases”. (5)
REGULATION RELATED The shortcoming was that
TO COVID-19 At this juncture — as all the COVID-19 regulations allowed
issues came colliding together authorities to select who would
Even before the spread of the — journalists were forced into be allowed to attend the press
virus on the continent, southern fighting a battle on many fronts. briefings.
African countries implemented
their partial and full lockdowns The media was trying to make In a separate incident, the
through a range of swiftly sense of what was happening Namibian government was
enacted regulations, orders, with the fluid and fast moving forced to apologise after private
decrees or executive orders/ COVID-19 situation, while media journalists were forcefully
decrees. trying to keep themselves safe barred from attending an
from contracting the virus with opening of a COVID-19 facility
The governments of limited available resources. by President Hage Geingob. (7)
Botswana, South Africa,
Eswatini and Zimbabwe What became evident was South Africa was salient
hurriedly legislated laws the need for accurate news and in how it creatively shared
criminalising the sharing of information to help people stay statistics and live daily updates,
“false information”. (2) informed and safe. co-opting entertainment and
Botswana was one of the
first countries to institute a law
that made it illegal to share
COVID-19 information that had
not been obtained from the
director of Health Services or
the World Health Organisation.
(3)
These restrictions were
indiscriminately being used to
threaten, intimidate, assault
and arrest journalists
covering the COVID-19
pandemic with Zimbabwe
recording the highest number
of violations. (4)
These initial attempts to cage
access to information failed, as
citizens demanded a deeper
understanding of the global
pandemic. Botswana media workers during a
march
STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 6
new websites to include a
COVID-19 panel through which JOURNALISTS SAFETY ● To the growing
audiences could easily access intolerance in the political sector
this information.
AND PROTECTION with ruling parties brutally
opposing views and opposition
Media freedom, access to parties attacking the media for
information and freedom of reporting their inadequacies.
ECONOMIC IMPACT expression have been under
renewed pressure in the last In Angola, the licences of three
two years, with attacks on the television channels, Zap Viva,
As the business and media increasing in volume Vida TV and TV Record Africa
manufacturing sector in the and frequency and the lack of were suspended for operating
Southern African region that investigations into these crimes under provisional registrations
were not classified as essential is driving the rising culture of and not regularising their
services slowed down or impunity. status. (12)
completely shut down, the
ripple effect on the media At the core of these attacks is The three media companies
industry was devastating. the contestation over resources were taken by surprise as they
and political power. allegedly did not receive prior
The most immediate challenge information or notification of
that was catapulted to the Where it was once easy to any administrative procedure
forefront, during global spread identify the source of attacks, against them.
of the pandemic, was the issue this has now shifted as the
of sustainability — a concern media is being assaulted by both On 9 April 2020, Zambian
that is also emphasised in the State and non-State actors. authorities ordered the
Windhoek+30 Declaration, cancellation of independent
with a recommendation to As an ispeak.Africa article television news channel Prime
ensure collective collaborative on impunity explains — the TV’s broadcasting licence. (13)
action is taken to address the settings in which journalists are
“severe economic crisis, which particularly at risk are: (10) The decision was made after
is posing an existential threat the station allegedly refused to
to independent news media ● In rich resource States air the government’s COVID-19
worldwide”. that fall into the category public awareness campaigns
of failed States with flailing because it was owed money for
The point was reinforced by the economies. This is especially airing previous State-sponsored
shocking news of the closure, so, where the State has tight advertisements.
after 38 years, of Associated control over those resources
Media Publishing (AMP) — the and government officials are Journalists in Lesotho are
largest independent South benefiting from the sales of concerned for their safety as
African media house — with its these resources; the country heads to elections
host of magazine titles. (8) in September 2022, as there
● In countries where the is a tendency by security
In Zimbabwe, Alpha Media economy is in decline and there agencies and political parties
Holdings announced that it had are subsequently high levels of to unlawfully arrest, harass,
temporarily stopped printing corruption; (11) assault and torture journalists.
hard copies of its three major
titles and would e-publish ● In countries where there In November 2021, a radio
instead. is the lack of political will to carry presenter at 357FM Lebese
out independent and thorough Molati, was detained and
Zimpapers, which houses investigations into the death of interrogated by the Pitso Ground
numerous public media titles, journalists; and Maseru Central police.
laid off staff, as did Business
Times and radio station ● In countries where the This was in connection with
ZiFM. (9) security sector — the army and his alleged reports at the
police become political captives private radio station, about
News Company Botswana and so crimes against the media “disappearance” of police guns
admitted the pandemic related are politicised and subsequently and connecting the incident
lockdown had a similar impact not investigated; with a certain senior police
and made a similar declaration officer. Molati reported how
— its 36 year print publication ● When reporting people- he was tortured and nearly
the Botswana Gazette would driven protests demanding suffocated to death during the
now only be distributed online. democratic reforms in States; police interrogation.
andSTATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 7
elections despite vehement
SURVEILLANCE AND opposition from civil society Save for the Comoros and
organisations. Namibia, all other SADC
PRIVACY OF ONLINE countries have strict laws which
COMMUNICATION Alongside South Africa, make SIM card registration
Botswana is one of the mandatory. (16)
countries known in recent
Optics play an essential role in times to have requested user While SIM card registration
Southern African governments’ data from global technology is said to aid the fight against
approach to digital rights — company, Facebook. crime, which is yet to be proven,
particularly around protection of this registration actually violates
personal data and surveillance. Journalists and other media people’s right to communicate
practitioners in Botswana online anonymously, particularly
Governments in the region have also reported suspected because telecommunications
want to be seen as being phone tapping and other providers, depending on
democratic and progressive, communication surveillance by their licensing conditions, are
by passing data protection the Directorate of Intelligence compelled to give information
and cybercrime laws that may and Security (DIS). about certain subscribers, if
outwardly seem to be in line ordered by the State.
with regional standards. Newsrooms have been turned
from being bastions of freedom For example in the Democratic
However, the laws are being of expression to closed and Republic of Congo Article 7 of
crafted with little distinction tension-filled spaces dominated a 2015 Ministerial Order 15
between their intended purpose by fear and suspicion of empowers the government
and their actual consequence. infiltration. to have unlimited access
to subscribers information
Cybercrime laws, which are At the end of 2021, Botswana held by telecommunications
meant to protect against online seemed to be frantically pushing companies. (17)
threats include hacking, identity to pass what was described as
theft, fraud, phishing, pharming, one of the most contentious
spoofing, profiling, spyware, surveillance laws in the region. INTERNET ACCESS
tracking cookies, online witch
hunting, bullying and stalking, The amendment of the
tend to include “backdoor Criminal Procedure and Evidence Accessing the internet
clauses” that allow countries (Controlled Investigations) Act is gradually becoming
to spy on their citizens without was due to be brought before inexpensive, but it is still out
protective judicial oversight the country’s legislature in early of the reach of many Africans.
mechanisms to determine 2022. Internet access is hindered by
whether the surveillance is in taxation of internet services,
the interests of national security The Botswana government the licensing of online users,
or is unwarranted. argued that the law was being such as YouTubers and news
amended to comply with sites, and infrastructure such
The timing of the passage of the recommendations of the as electricity supply and base
these laws and their selective Financial Action Task Force stations.
application against journalists (FATF).
and human rights defenders in It is estimated that nearly 45
particular is also indicative of South Africa, in this respect, percent of Africa’s population
the intent behind the use of the leads its regional peers through are 10 kilometres away from
regulations. its Regulation of Interception of network infrastructure. (18)
Communications and Provision
An analysis of Zimbabwe’s of Communications Related The vast majority of citizens
Data Protection Act 2021 by Information Act (RICA), which in Southern Africa access
MISA highlights: “that the requires a judge’s assessment the internet through mobile
government is operating under to allow for surveillance. (14) network operators.
a very misled presumption that
cybersecurity equals national But even with its robust law, Base stations are sparsely
security.” the Constitutional Court found distributed in rural areas
that sections of RICA violated compared to urban areas,
The Zambian government the Constitution, in a case which means that rural areas
passed the contentious Cyber brought by journalist Sam Sole do not have access to internet
Security and Cyber Crimes Act of AmaBhungane, who was services.
2021 just a few months before being spied on by the state
the scheduled August 2021 without his knowledge. (15)STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 8
Erratic electricity supply
also impacts internet access This was after Chapter One
and reports of load-shedding Foundation, a local organisation INDEPENDENT
in Zambia and Zimbabwe working on protecting the
adversely affecting the quality rule of law through strategic CONTENT PRODUCERS
of internet services abound. (19) litigation — filed a judicial
review proceeding against
According to a Collaboration ZICTA, challenging the internet For decades, the outline
on International ICT Policy shutdown during the 12 August of the media landscape in
for East and Southern Africa 2021 general elections. (23) Southern Africa consisted
(CIPESA) brief, Mozambique of legacy media, which was
has the most expensive The realisation of Target 5B largely characterised by the
data per gigabyte, costing of Sustainable Development dominance of State-controlled
an exorbitant US$2.79 per Goal 5 calling for enhancing broadcasting and privately
gig, Lesotho follows closely, the use of enabling technology, owned media outlets struggling
charging US$2.66 per GB. in particular information and to survive. The environment is,
On the other side of the price communication technology, to however, shifting.
spectrum, Tanzania has the promote the empowerment of
cheapest data at US$0.75 per women is hampered by lack of Community media has yet
gigabyte. (20) education, resources and cost to make an impact in other
of connecting to the internet. Southern African countries, as
Although Tanzania has the (24)
it has in Zambia, which has
most affordable internet in the more than 200 local community
region, it is also notorious for More worrying is the rise of radio stations.
imposing levies on electronic online gender based violence
money transactions, which on the continent. For the first time, Zimbabwe
impact the cost of using the licensed 14 community radio
internet. (21) Although there has not been stations and six television
a comprehensive assessment of stations.
Through the Electronic and the prevalence of this form of
Postal Communications (Online gender based violence, statistics However, a concern remains
Content) Regulations imposed from Uganda and Kenya can that the new television stations
in 2018, online content creators be used to extrapolate and lack diversity as the six television
are required to license their generalise on the situation in stations are all linked to the
websites and YouTube channels Southern Africa. (25) government of Zimbabwe and
with licence fees pegged at instead of promoting diversity
US$437. (22) Online gender-based violence and a plurality of voices, they
or OGBV is one of the leading may well be replicating the
The two most worrying causes of women not going government’s already existing
trends around digital rights is online, as they are victimised hegemony in the broadcasting
the tendency and frequency by men, who make the majority sector.
of governments resorting to of users and use pseudonyms
disrupting online services online. Women are subjected The radio industry grew
during critical moments — such to non-consensual sharing of exponentially towards the
as riots and elections and online intimate images (incorrectly end of the 20th century when
gender based violence. referred to as revenge porn), regional governments took a
body shaming and trolling. bold decision to liberalise the
In a big win for freedom airwaves.
of expression and access to The UN Special Rapporteur
information in southern Africa on violence against women, In Lesotho, for example, this
— the Zambia Information its causes and consequences, brought to an end the 40-year
and Communication Authority has stated that some groups of dominance of the airwaves by
(ZICTA) — the country’s women including human rights state-owned Radio Lesotho.
regulatory body, entered into a defenders, women in politics,
consent judgement and agreed journalists, bloggers, women There are now close to 27
“not to act outside its legal belonging to ethnic minorities, terrestrial radio stations and
authority to interrupt access to indigenous women, lesbian, one online radio station, but
the internet in future”. bisexual and transgender television broadcasting remains
women, and women with 100% state-owned, with the
ZICTA also agreed “to inform disabilities are particularly Lesotho National Broadcasting
the public of the reason for any targeted by ICT-facilitated Services (LNBS) dominating
interruption in access to the violence. the television broadcasting
internet within 36 hours of any airwaves.
such event”.STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 9
The advent of the internet is promotes internet governance, impersonating the president.
reshaping the media backdrop, digital rights and media rights, (26)
as creatives explore the space works on media and information
to express themselves freely on literacy programmes. In May 2020 he was arrested
the internet, using social media again, this time after he posted
and websites to reach younger Both Magamba Network a video of him laughing at
tech conversant audiences. and Bloggers of Zambia run a picture of Magufuli in an
programmes that promote oversized suit, this time he was
Political satire, discussions participation in parliamentary charged with using a SIM card
on LGBTQIA communities and processes targeted at younger that was not registered in his
their issues and frank social and audiences, called Open Parly name. (27)
political conversations not aired Zimbabwe and Open Parly
on State broadcasters have Zambia, respectively. Samantha Kureya, who is
become popular with online also known as Gonyeti — part
viewers and listeners. Magamba Network’s annual of a popular comedy series
Shoko Festival — the region’s Bustop TV — was allegedly
Not only has the internet largest urban culture festival abducted from her home in
provided a platform for freedom allows for creatives and their Zimbabwe in August 2019 by
of expression, it has opened an entities from the region to masked gunmen, who stripped
avenue for creatives to make showcase their work. her, assaulted her and dumped
an income from advertising. her in a secluded place. The
YouTube views and the sale of Also, becoming one of the most government spokesperson
merchandise. popular forms of expression said Gonyeti lied about her
online, is 3D animation. kidnapping. (28)
There is also training
conducted by some of these The appeal of anime content Fumba Chama who goes by
creatives that empowers other such as that produced by the stage name Pilato had to go
younger performers to improve PaGhetto is that it is relatable into exile in 2017 after releasing
their craft. to its audiences, gives a a song — Kuswe Mumpoto (rat
comical take on “serious social, in the pot in Bemba language),
The Journalism and Media economic and subliminally which criticised Zambia then
Lab or JamLab, a project of political issues and is produced President Edgar Lungu’s
Wits University, which aims to in vernacular languages”. government. He started
enhance journalism and media receiving death threats over the
in Africa, runs a mentorship Set in the “hood”, the series song from Lungu’s supporters
project known as the JamLab tackles some serious social, and fled to South Africa. (29)
Accelerator Programme for economic and subliminally
early career journalists. It also political issues. Upon his return from exile in
runs a week-long JamFest which May 2018, he was arrested at
showcases innovation in media. These types of anime Kenneth Kaunda International
productions are also being used Airport and detained.
Similarly, The Hub in Lesotho as election related explainers
provides digital media training and their generic content allows He was then charged for
and live events which promote the material to be used across participating in a demonstration,
freedom of expression. regions and borders. which took place before he left
Zambia.
Long known for its presentation This new found form of
of contentious issues, Magamba commentary offers much In addition to these attacks on
Network in Zimbabwe, needed comic relief to audiences content creators, governments
promotes democracy, freedom always looking for great are seeking ways to control
of expression and access to content, but tends to offend the online content.
information by creating digital ruling elite.
content, producing political Already Tanzania’s cyber-
satire, video productions and Tanzanian comedian, Idris crime law requires content
live events. Sultan was arrested by creators to pay registration
Tanzanian police twice during fees to the communications
It also provides a space the reign of the late President regulator, the Zimbabwean
where these young, resourceful John Magufuli. government has started a
political commentators can also process of exploring how to
create their content. He was first arrested in tax content creators. Internet
October 2019 for posting a costs are still prohibitive,
Bloggers of Zambia, a face-swap picture with Magufuli making access to content
non-profit organisation that on Twitter, and charged with expensive. (30)STATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 10
JOURNALISM UNDER while amplifying old problems
regarding the safety and
SURVEILLANCE IN security of journalists.
SOUTHERN AFRICA
Among these are the
introduction of new channels
for news distribution, which
has brought with it increased
responsibility with regards to
information verification and
fact checking.
The issue of media
sustainability has also been
expounded by the growth of
the digital era, as advertising
revenue continues to dwindle
due to increased uptake of
technology offering direct
advertising channels to
consumers.
With increased development
in technology and the
By Nompilo Simanje embracing of convergence
by the media, there is now a
heavy integration of digital
INTRODUCTION platforms as a means to source,
receive and disseminate
W
news. Consequently, this has
HEN the Windhoek resulted in states’ interests in
Declaration surveillance.
was signed in While the practice of
1991 it aimed journalism in Southern Africa Evidence in the Southern
at promoting has been under threat given African region shows increasing
independent, pluralistic and the circumstances noted in investment in surveillance tools
free media, and the following the declaration, the digital age and methods by governments
was acknowledged: has presented new challenges characterised by the setting up
of cyber teams for purposes
of monitoring, tracking and
intercepting communications.
“In Africa today, despite the positive developments
Such monitoring activities
in some countries, in many countries journalists, edi- have unfortunately not spared
tors and publishers are victims of repression, they are journalists, compromising
their safety and violating the
murdered, arrested, detained and censored, and are confidentiality of their sources.
restricted by economic and political pressures such Prior to rapid technological
as restrictions on newsprint, licensing systems which developments and the
sprouting of channels for news
restrict the opportunity to publish, visa restrictions production and dissemination,
States had monopoly over
which prevent the free movement of journalists, information and could regulate
restrictions on the exchange of news and informa- access to information or
the nature of information
tion, and limitations on the circulation of newspapers consumed by citizens.
within countries and across national borders. In some With digitisation, however,
countries, one party States control the totality of in- the government’s stranglehold
on information has been
formation.” loosened, with informationSTATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 11
being disseminated easily and
quickly through messaging THE STATE OF The Botswana Constitution,
applications and other forms of in particular, is one exception,
technology.
SURVEILLANCE IN as it provides for the privacy
THE SOUTHERN of the home or property, but
This has given rise to continued does not provide clear and
attempts by governments to AFRICA REGION comprehensive protection
unjustifiably limit freedom of of data or communication
expression using surveillance. Evidence to date, shows that adequately safeguards
that countries in Southern the rights and interests
Of note are several reports Africa have been deploying of individuals, including
in 2020 and 2021, highlighting various strategies and tools journalists in line with the
that African states have been for purposes of surveillance, in latest trends. (8)
relying on spyware for purposes countries such as Zimbabwe,
of surveillance on journalists South Africa and Zambia. Apart from the Constitution,
and political leaders, among the surveillance of media
others. (1) (2) (3) It has been recorded that practitioners can also be
online harassment, mass appropriately addressed by
Further during the onset and targeted surveillance, data protection laws that would
of the COVID-19 pandemic data storage vulnerabilities, ideally address issues relating
in 2020, several countries and digital attacks (including to the collection or accessing,
deployed various technological hacking) are among the many the use and transmission of
tools for purposes of monitoring ways that digital tools have been personal information.
and tracking the spread of the used to jeopardise the safety
virus. (4) and integrity of journalists as Eswatini, Tanzania, Lesotho,
well as their sources. (6) Namibia, Mozambique, Malawi,
These tools included South Africa and Zimbabwe
monitoring of mobile phones Both State and non-State are among the countries in
and access to location data actors use these tactics to Southern Africa that have
through mobile network gain access to confidential primary legislations on data
operators as well as deployment information and intimidate protection and privacy.
of contact tracing applications journalists. (7)
in countries that include South While data protection and
Africa and Botswana. The right to privacy is at the privacy are protected in several
centre of concern regarding countries, as highlighted above,
Consequently, these tools surveillance in journalism both in constitutions and also
have also opened potential because it is an enabling right in data protection and privacy
loopholes for surveillance. that facilitates the exercise of laws, there are also other
Governments have, therefore, other rights like the right to pieces of legislation that impact
been urged by civil society and access to information, political the two rights by authorising or
human rights activists to ensure rights, media freedom and legalising surveillance.
that such measures guarantee freedom of expression, among
anonymity and confidentiality others. The following is a regional
of government sources. (5) outlook with regards to
Within the context of Southern interception of communications
This research, therefore, Africa, the right to privacy is through provisions within laws:
interrogates the state of a constitutional provision in
surveillance towards media countries such as South Africa, In 2020, several African
practitioners from countries Zimbabwe, Zambia, Malawi, countries including Zimbabwe,
in Southern Africa and posits Mozambique and Tanzania, Zambia and Botswana were
necessary interventions among others. reported to be customers of
that can be implemented by Circle, a surveillance firm that
stakeholders to address vice. Unlawful mass or targeted reportedly exploits weaknesses
surveillance is, therefore, in the global mobile phone
Examples will be drawn a threat to the privacy of system to snoop on calls,
from countries like Malawi, journalists, particularly the texts, and the location of
South Africa, Botswana, privacy of their property, which phones around the globe.
Mozambique, Namibia, includes mobile devices or Circles is reported to be an
Tanzania, Zambia, computers, the privacy of their affiliate of the Niv, Shalev and
Zimbabwe, Lesotho and communication and also the Omri Group Technologies (NSO
eSwatini. confidentiality of their sources, Group) that develops Pegasus
which also contravenes the Spyware, which has been used
right to media freedom. in several African countries forSTATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 12
for a prohibitory interdict
against the enforcement of the
warrant on the basis that it was
disproportionate and posed a
threat of mass and targeted
surveillance, hence, a grave
violation of the right to privacy.
(12)
Further, governments in the
region are also arresting human
rights defenders, journalists
included, on unfounded
charges and then using that
channel to confiscate gadgets,
including laptops and mobile
phones in order to snoop into
their communications.
In brief, what has been
noted in several countries in
the region are the following
aspects: (13)
● There are several legal
provisions enabling surveillance
as found in different laws;
● Independent oversight
bodies to monitor the activities
Source: A Patchwork for Privacy-Mapping of law enforcement authorities
Communications Surveillance Laws in Southern are absent;
Africa, Murray Hunter and Admire Mare, 2020 ● Investigating authorities
do not publicly report on their
activities;
● Individuals subject to
surveillance purposes. (9)
surveillance are not notified
Monitoring of bank about it nor are they afforded
Pegasus is used to gain access transactions is also another the opportunity to appeal.
to one’s device and stored form of surveillance that
data, including passwords, African governments are using. The following are examples
calendars, contacts, SMS of cases of surveillance of
records, browsing history and In Zimbabwe, the government journalists in three countries in
direct call applications. once attempted to acquire the region:
private information of over
It works through a phishing eight million subscribers of
link that is sent to the targeted the largest mobile network South Africa
person, who upon clicking operator Econet Wireless under
it, unwittingly downloads the guise that the firm’s mobile
and instals Pegasus in the money platform — Ecocash According to Reporters
background without the user — was being used for money Without Borders, while press
knowing it. laundering purposes. freedom is guaranteed in
South Africa, it is fragile. The
This allows the spyware to The warrant for seizure, report indicates evidence of a
bypass all the digital protection allowed the police to collect State security agency spying
features that might have been information on mobile money on some journalists by tapping
set up on the mobile devices. transactions for all subscribers their phones.
This, therefore, poses a great between January and July
risk to journalists that are 2021. (11) Others are harassed and
not equipped with knowledge subjected to intimidation
and tools for purposes of On behalf of the media campaigns if they try to
digital safety and security, sector in the country, the cover certain stories involving
thus, putting them and Media Institute of Southern the ruling ANC, government
their confidential sources of Africa (MISA) Zimbabwe had finances and redistribution of
information at risk. (10) to approach the High Court land to the black population orSTATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 13
corruption. (14)
The 2018 report by Right
to Know on Surveillance of
Journalists in South Africa
details about 12 cases of
surveillance, interception of
communications and illegal
accessing of call records by
private investigators and
the State. This has been
conducted through the criminal
intelligence system, which Zimbabwean President Emmerson Mnangagwa
carried out surveillance on CREDIT: NewsDay
journalists that were working
on various cases, including
those on public corruption. (15) safeguards to address the fact a constitutionally elected
that interception directions are government.
More recently, in March sought and obtained ex parte;
2021, investigative journalist (d) adequately prescribe More recently, from 2020 to
Jeff Wick was reported to procedures to ensure that date, several indications and
be under illegal surveillance data obtained pursuant to the attempts at mass surveillance
and his communication was interception of communications have been noted, pointing to
intercepted by the police’s is managed lawfully and the possibility that journalists
crime intelligence in their not used or interfered with have not been spared in such
attempt to determine his unlawfully, including prescribing blanket surveillance.
sources behind the News24 procedures to be followed for
coverage of issues happening examining, copying, sharing, In March 2020, the then army
within police management. (16) sorting through, using, storing commander Edzai Chimonyo
or destroying the data; and said the security forces would
Of note, however, was (e) providing adequate start snooping into private
the landmark ruling by the safeguards where the subject communications between
South African Constitutional of surveillance is a practising citizens to ‘guard against
Court in a case involving the lawyer or journalist. subversion’ and claimed that
AmaBhungane Centre for the use of social media posed
Investigative Journalism and This judgment protects a threat to national security. (18)
Sam Sole, a journalist, whose journalists and their sources
communication was being from surveillance abuses In October 2020, President
monitored and intercepted, and also confirmed that Emmerson Mnangagwa
against the Minister of Justice bulk or mass interception of addressed chairpersons of Zanu
and Correctional Services and ordinary citizens’ data and PF’s provincial women, youth
others. communication is illegal. (17) and war veterans wings at
the ruling party headquarters,
In this case, the This was a win for media where he revealed that
court declared that the practitioners in South Africa through the use of ICTs, the
Regulation of Interception of and highlighted the need to government had the capacity
Communications Act (2021), push for the repeal and or and was tracking the locations
RICA is unconstitutional on the amendment of the Act. of certain individuals and their
basis that it fails to: communication details. (19)
(a) provide for safeguards to
ensure that a judge designated Zimbabwe The above clearly highlights
for purposes of a warrant of the depth of surveillance
interception is sufficiently in Zimbabwe in addition to
independent; In Zimbabwe, in November the aforementioned reports
(b) provide for notifying the 2017, the police raided offices implicating the government
subject of surveillance of the of Magamba Network, a civil in the use of cyberespionage
fact of her or his surveillance society organisation made tools. (20)
as soon as notification can be up of journalists and content
given without jeopardising creators, where they seized Further, the numerous
the purpose of surveillance devices belonging to the arrests of prominent freelance
after surveillance has been organisation such as laptops journalist Hopewell Chin’ono
terminated; and printers on allegations between 2020 and 2021
(c) adequately provide of attempting to subvert also indicated elements ofSTATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 14
social media monitoring or This is a clear indicator of
surveillance by the State. the repressive environment Botswana
in which media practitioners
Chin’ono was arrested on are operating in as their right Botswana has been implicated
three different charges, which to privacy and more so the in the surveillance of journalists.
included incitement of violence, confidentiality of their sources In late 2021, the Botswana
obstructing the course of justice is not guaranteed. government began procedures
and publishing falsehoods. (21) to enact the Criminal Procedure
From a legislative perspective, and Evidence (Controlled
All these charges were based the Data Protection Act, Investigations) Bill, a proposed
on messages that Chin’ono enacted in December 2021, law that contained provisions
posted on his social media amended the Interception that would allow authorities to
pages on Facebook and Twitter. of Communications Act, the intercept communications of
Zimbabwean law that provides journalists and force them to
These arrests and the for lawful surveillance. disclose their sources. (24)
prolonged pre-trial detention
contributed to the infringement The Data Protection Act Following an intervention
of freedom of expression established a Cybersecurity by media organisations in
and promoted a culture of and Monitoring of Interceptions Botswana, who were supported
self-censorship by media of Communications Centre that by their partners in the region,
practitioners and members of is housed in the Office of the the proposed provisions were
the public, which ultimately President and presents a legal eventually withdrawn. However,
would lead to the shrinking of basis for the government, the pattern of surveillance has
democratic spaces online. and allows the executive been happening prior to this
branch of government to be proposed legislation.
More recently in November monitoring and intercepting
2021, the Information, Publicity communications of targeted The Botswana police was
and Broadcasting Services persons, who are believed, reported to have been using
minister said the government reasonably or not, to be Israeli technology to snoop
had set up a cyber team to enemies of the State, especially on journalists, particularly to
“monitor what people send and political opponents. (23) verify or check the identity of
receive.” (22) their sources.
In July 2019, the police seized
devices belonging to journalist
Tsaone Basimahotlhe and
proceeded to use technology
sold by the Israel-based
company Cellebrite to extract
and analyse thousands of her
messages, call logs, and emails,
and her web browsing history,
according to an affidavit from
the police forensics laboratory.
(25)
In April 2020, journalist
Oratile Dikologang was arrested
and had his phone searched by
police after he wrote articles
critical of the government.
It is reported that the police
“successfully extracted”
and “thoroughly analysed”
thousands of the journalist’s
messages, contacts, images,
audio files, and videos, as well
as social media accounts and
applications, according to an
Justice Motlhabani (left) and Letsogile Barupi, affidavit that they submitted
followed by Oratile Dikologang, leave the to court to support the
magistrate’s court in Gaborone, Botswana, on April prosecution. (26)
14, 2020.
CREDIT: Mmegi/Thalefang CharlesSTATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 15
law and standards, and that or returned to the impacted
In March 2021, Botswana is premised on specific and individual; and
also seized computers and reasonable suspicion that a c) information is accessed
phones from arrested reporters serious crime has been or is only by the specified authority
and media workers with the being carried out or for any and used for the purpose for
Moeladilotlhoko News Boiler, a other legitimate aim; which authorisation was given.
private Facebook-based news 3. States shall ensure that
outlet and demanded their any law authorising targeted The key takeaway is,
passcodes, answered calls on communication surveillance therefore, highlighted in the
their behalf and read messages provides adequate safeguards General Assembly resolution
on their devices. Two of the for the right to privacy, 73/179 on the right to privacy
phones were kept as evidence including in the digital age, being
post the withdrawal of the a) the prior authorisation of that surveillance of digital
charges. (27) an independent and impartial communications must be
judicial authority; consistent with international
What is, therefore, clear b) due process safeguards; human rights obligations and
from the above examples in c) specific limitation on the must be conducted on the basis
the region, is that surveillance time, manner, place and scope of a legal framework, which
has adverse effects on of the surveillance; must be publicly accessible,
free expression and media d) notification of the decision clear, precise, comprehensive
freedom. authorising surveillance within and non-discriminatory. (28)
a reasonable time of the
conclusion of such surveillance;
INTERNATIONAL e) proactive transparency RECOMMENDATIONS
on the nature and scope of its
LAW POSITION ON use; and
SURVEILLANCE f) effective monitoring In light of the demonstrated
and regular review by an cases, targeted surveillance of
independent oversight journalists is a violation of their
While surveillance seems to mechanism. fundamental rights, including
have been normalised, in its the confidentiality of their
unlawful and disproportionate The above is also buttressed sources.
state, it should be noted that in the 2013 International
there are various international Principles on the Application Whistleblower protection
and regional human rights of Human Rights to is one critical enabler for
instruments, as well as Communications Surveillance, the realisation of media
declarations, resolutions, which highlights that any form freedom and the promotion of
principles and guidelines of surveillance should be guided transparency and accountability
developed by the international by the principle(s) of legality, as whistleblowers are some of
human rights community that legitimate aim, necessity, the key sources for journalists,
guide states with regards adequacy and proportionality. especially in investigative
to monitoring, tracking and journalism.
interception of citizens and It is a requirement that if
their communication, and more the State seeks access to In undertaking their watchdog
so high risk groups like media protected information through role, media practitioners receive
practitioners. communication surveillance for and store sensitive information
a purpose that will not place thus unlawful violation on their
Of note is Principle 41 of the a person at risk of criminal data privacy would not be
Declaration on Principles of prosecution, investigation, warranted. Similarly, targeted
Freedom of Expression and discrimination or infringement interceptions for purposes
Access to Information in Africa of human rights, the State must of determining or exposing
(41)
which provides as follows: establish to an independent, journalistic sources should not
impartial, and competent be allowed.
1. States shall not engage in or authority that:
condone acts of indiscriminate a) other available less The following are
and untargeted collection, invasive investigative recommendations, that should
storage, analysis or sharing of techniques have been ensure that any form of
a person’s communications; considered; unlawful surveillance is done
2. States shall only engage b) information accessed away with while in instances
in targeted communication will be confined to what is wherein it is argued that
surveillance that is authorised reasonably relevant and any possibly the surveillance is
by law, that conforms to excess information collected lawful that such surveillance
international human rights will be promptly destroyed should be justifiable, necessarySTATE OF PRESS FREEDOM IN SOUTHERN AFRICA REPORT 2021 16
and for a legitimate purpose. including that states should: Private players like big
tech companies or internet
Civil society organisations ● Cease the use of State- companies can also contribute
and media practitioners should sponsored hacking to engage in strongly to the safety and
advocate and lobby for the the surveillance of journalists; security of journalists in
following interventions: the digital age. This can be
● All data collected as achieved through the following
● Support towards part of COVID-19 contact interventions:
relocation of journalists to tracing should be strictly
a safe place in the event of protected from any other use ● Adopting and
imminent threats; by intelligence agencies and implementing the guiding
other government agencies or principles on business and
● Safety and security corporations; human rights;
trainings that are holistic in
nature, including a focus on ● Ensuring that requests
digital safety and also physical by governments to access
security; “In undertaking their private information of users are
● Rapid response to
watchdog role, me- lawful, necessary and justified
and in compliance with the
incarcerated journalists; dia practitioners re- protection of rights;
● Use of applications
ceive and store sen- ● Constant review of
or panic buttons should any sitive information policies to ensure that they
journalist feel that they are in thus unlawful vio- include and promote the right
danger; to privacy, including data
lation on their data protection and privacy principles
● Advocacy and lobbying privacy would not that should guide them in the
towards transparency in the
acquisition and deployment of
be warranted. Simi- collection, processing, use,
transmission and storage of
surveillance tools by States in larly, targeted inter- personal information; and
the region; (29) ceptions for purpos-
● Ensuring that new
● Solidarity among human es of determining or technologies are human rights
rights activists and civil society exposing journalistic centred from their development
organisations in calling for
respect of the right to privacy;
sources should not to their deployment.
(30) be allowed.
CONCLUSION
● Strategic litigation is
also very key. Any form of ● Review laws that From the above, it can be
surveillance should be within allow or legalise surveillance noted that journalists continue
the precepts of the law. This and ensure that they are in to be under threat particularly
means that it should fall within keeping with international through targeted surveillance.
the ambit of the three pronged standards and uphold
test to permissible limitations fundamental rights in line with While this report focused on
of rights; the International Principles specific incidents in Southern
on the Application of Human Africa, journalists in other
● Media practitioners Rights to Communications countries beyond the region
should increasingly embrace Surveillance (the Necessary such as Togo, Senegal, Nigeria
the use of encryptions and and Proportionate Principles); and Rwanda have faced similar
anonymity to create the threats to their privacy as they
necessary privacy that allows ● Ensure that data are targeted for their work.
them to freely exercise their protection authorities are
right; and independent from State In that regard, it is crucial to
interference; and facilitate a regional response
● Media practitioners mechanism that strengthens
should utilise disappearing ● Provide for judicial the digital safety and security
messages features on platforms oversight in any attempt of journalists as well as
like WhatsApp and Signal. at monitoring or tracking lobbying states through their
of individuals including the different agencies to desist
Governments also have a deployment of surveillance from unjustifiably interfering
role to play in addressing the tools for the same purpose. with the work of journalists.
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