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Defining the Margin of Terror

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Defining the Margin of Terror C Defining the margin of terror - Explaining the chilling effect of insult and defamation laws on the media and artists in Zimbabwe Candidate: Ragnhild Therese Nordvik Submission deadline: May 15th 2014 Number of words: 19 994 Supervisor: Malcolm Langford Acknowledgements I wish to thank Fritt Ord, for providing me with a scholarship which made it financially possible to travel to Zimbabwe. A special thanks to Sam Takavarasha Jr for all the practical assistance in Harare. I am also grateful to all my informants as well as other people, both inside and outside of Zimbabwe, who took time out of your very busy schedules to talk to me and guide me. I also want to thank my supervisor, Malcolm Langford, for inspiration and encouragement along the way. Thank you also to all the staff at the Centre for Human Rights, who have contributed academically and personally to the master’s programme. To all the students (and former students) sitting at the Centre for Human Rights: The lunch company, coffee break discussions and mutual support is priceless! A big thank you also goes to all my for- mer colleagues in SAIH (Norwegian Students’ and Academics’ International Assistance Fund), for everything you have taught me about Zimbabwe and everything else. I am also truly grateful to my wonderful friends and neighbours, who have taken us under your wings and given both me and Nicolas food, love and support during my most busy exam periods. To Nicolas: Thank you for being exactly who you are. You make me proud. However, my biggest gratitude goes to my mother, Grete Karin Nedrelid. Without your support and help I could not have done it. I Table of contents ACKNOWLEDGEMENTS ................................................................................................. I TABLE OF CONTENTS ................................................................................................... II 1 INTRODUCTION ..................................................................................................... 1 1.1 Methodology ................................................................................................................ 2 1.2 Outline of the thesis – a reader’s guide ....................................................................... 4 2 FREEDOM OF EXPRESSION, DEFAMATION LAWS AND THE ‘CHILLING EFFECT’ ............................................................................................. 5 2.1 Freedom of expression in international human rights law .......................................... 5 2.2 Criminal defamation and “insult laws” ....................................................................... 6 2.2.1 Historical background .................................................................................... 8 2.2.2 Insult laws and freedom of expression ........................................................... 8 2.3 The ‘chilling effect’ ................................................................................................... 11 2.3.1 The legal concept ......................................................................................... 11 2.3.2 What determines the chilling effect of legislation? ...................................... 13 2.3.3 A theory of the chilling effect of Zimbabwean legislation .......................... 16 3 THE EFFECT OF LEGISLATION IN ZIMBABWE ......................................... 18 3.1 Zimbabwe – introduction ........................................................................................... 18 3.1.1 Zimbabwe and human rights ........................................................................ 18 3.1.2 Zimbabwean legislation affecting freedom of expression ........................... 20 3.2 The chilling effect of existing legislation in Zimbabwe ............................................ 24 3.2.1 The media ..................................................................................................... 24 3.2.2 Other public voices - artistic expressions in music, theatre and literature ... 35 II 3.2.3 The current situation .................................................................................... 44 3.3 The effect of legislation on public voices in Zimbabwe ........................................... 45 3.3.1 Defining the ‘margin of terror’ .................................................................... 46 4 CONCLUSION ........................................................................................................ 54 5 TABLE OF REFERENCES ................................................................................... 56 5.1 Treaties/Statutes ......................................................................................................... 56 5.1.1 International ................................................................................................. 56 5.1.2 Domestic (Zimbabwe) .................................................................................. 57 5.2 Judgements/decisions ................................................................................................ 57 5.3 Secondary Literature .................................................................................................. 58 5.4 List of interviews ....................................................................................................... 67 6 ANNEXES ................................................................................................................ 68 6.1 Section 31 of the Zimbabwe Criminal Law (Codification and Reform) Act ............ 68 6.2 Section 33 of the Zimbabwe Criminal Law (Codification and Reform) Act ............ 69 6.3 Section 96 of the Zimbabwe Criminal Law (Codification and Reform) Act ............ 70 III 1 Introduction Freedom of expression faces many challenges in Zimbabwe. Public expressions are affected by a variety of pieces of legislation in combination with official practices. Legislation on insult and defamation is assumed to have a particular chilling effect on public expressions. However, we see that the compliance with these laws is far from absolute, indicating that the effect of the legislation is conditional. But what is the effect of the legislation, and what are the factors that make legislation chilling? This study examines the effect that legislation on insult and defamation has on media prac- titioners and artists in Zimbabwe. The detailed research question is: How is the Zimbabwe- an legislation regarding insult laws and criminal defamation of public officials affecting critical voices (media, artists) – in which way can it be said that the legislation has a ‘chilling effect’ on public expressions? In answering this question I have interviewed journalists, editors, artists and scholars in Zimbabwe. I will look at factors that have an impact on the deterring effect of legislation and apply these theories to the data from Zimbabwe. This study will contribute to three different fields. First of all, it is a contribution to the growing literature on the situation in Zimbabwe when it comes to freedom of expression and freedom of the media. Although many reports from non-governmental and internation- al organisations document the chilling on the media in Zimbabwe, I have not found aca- demic studies looking at this specifically. Secondly, I hope to contribute to the understand- ing of what is meant by the chilling effect on the media within socio-legal studies; and thirdly, the study will also contribute to the more general question of which factors cause legislation to be effective. 1 1.1 Methodology The main thrust of my data comes from interviews performed during a two week field visit to Harare in March/April 2014, combined with literature studies of already existing books, articles and reports. One of the advantages of doing personal interviews is that the re- searcher can get targeted information on the subject that he or she wants to learn more about. In this case, performing interviews also provided an opportunity to examine the ef- fect of recent legal changes, which was relevant for my study. Also, issues related to free- dom of expression and oppositional voices are complex in Zimbabwe, and in such a tense political situation the advantage of doing personal interviews is that people will feel more comfortable to talk about sensitive issues. All the interview objects were promised anonymity in the published thesis. This was im- portant to some of them, whereas others said that they did not mind being quoted, since they had already talked publically about these or related issues. All names were still kept confidential, to avoid that someone could be identified by them having had a meeting with me and not being among those named1. Rumours about surveillance and infiltration of work places, universities etc. are constant in Zimbabwe, and it is very easy to get caught up in the habit of constantly looking over your shoulder to see if anyone is following you or listening to you. One of the informants put it this way: The CIO2 is the matter, although not as sophisticated as people are made to think, from my experience, but they play their role, sniffing out, they have to know that you are here, probably they do. They probably know that you are talking to me now. (Interview nr 2, Journalist 25.03.2014) This was said on my second day in Harare, which made it quite unlikely that the CIO should have any knowledge about me being there, but even so it illustrates the constant 1 The list of names and contact information of all informants is kept by author. 2 Central Intelligence
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