Media Law Handbook for Southern Africa Volume 2 Justine Limpitlaw www.kas.de KAS Media Justine Limpitlaw Programme Justine Limpitlaw — BA LLB (Wits) Sub-Sahara Africa LLM (Yale) — is an independent communications law consultant The Konrad-Adenauer-Stiftung based in Johannesburg, South (KAS) is an independent, Africa, and has been a visiting non-profit German political adjunct professor with the LINK foundation that aims to Centre at the University of the strengthen democratic forces Witwatersrand. around the world. KAS runs media programmes in Africa, Asia She specialises in and South East Europe. media, broadcasting, telecommunications, and space KAS Media Africa believes that and satellite law. Justine has a free and independent media worked with many of South is crucial for democracy. As Africa’s leading media companies such, it is committed to the as well as with freedom of development and maintenance expression-focused NGOs. of a diverse media landscape on the continent, the monitoring role She has given lectures on various of journalism, as well as ethically communications law issues based political communication. at a number of universities including the University of the Witwatersrand, the University of Pretoria, Rhodes University, as well as Columbia and Oxford universities. Media Law Handbook for Southern Africa Volume 2 Media Law Handbook for Southern Africa Volume 2 by Justine Limpitlaw Published by Konrad-Adenauer-Stiftung Media Programme Sub-Sahara Africa 60 Hume Road PO Box 55012 Dunkeld 2196 Northlands Johannesburg 2116 Republic of South Africa Telephone: + 27 (0)11 214-2900 Telefax: +27 (0)11 214-2913/4 www.kas.de/mediaafrica Twitter: @KASMedia Facebook: @KASMediaAfrica ISBN: 978-1-928535-57-7 (print) 978-1-920707-42-2 (e-book) © Konrad-Adenauer-Stiftung, 2021 This publication is an open source publication. Parts thereof may be reproduced or quoted provided the publication is fully acknowledged as the source thereof. Download an electronic copy of the second edition of the Media Law Handbook for Southern Africa from www.kas.de/en/web/medien-afrika/media-law-handbooks-for-southern-africa Cover photograph: Some of the 145 newly admitted advocates stand waiting inside the Supreme Courtroom to pick up their ‘certificates of practise’ at the Supreme Courts of Kenya in the capital Nairobi on 2 September 2019. (SIMON MAINA/AFP via Getty Images) Author photograph: Lisa Trocchi [email protected] Editing: Lynne McNamara [email protected] Design, layout and Heath White, ihwhiteDesign production: [email protected] Printing: Typo Printing Investments, Johannesburg, South Africa Acknowledgements It has been nearly ten years since the first edition of the Southern Africa Media Law Handbook was published by the Konrad-Adenauer-Stiftung Media Programme Sub-Sahara Africa (KAS). This second edition of the handbook is more extensive and runs to three volumes. The Tanzania chapter has been greatly enhanced by the inclusion of the media law landscape in Zanzibar. We also have three entirely new country chapters — Seychelles, Mauritius and Mozambique. I am particularly thrilled that we have, at last, been able to include a Lusophone country. It has been inspiring and rewarding to meet so many people, students, journalists, editors, researchers, bloggers, academics and others who have found the first edi- tion of the handbook a useful resource. Two such encounters stand out. One was an immigration official in Lusaka who studied my passport closely, causing some anxiety on my part. ‘Justine Limpitlaw,’ he said, ‘are you here to talk about media law?’ I was flummoxed. How could he know? ‘I’m studying law part-time, and your book is a set work!’. Another was Swazi journalist, Bheki Makhubu. I attended court on one of his trial days (he was, of course, acquitted eventually as the charges were ridiculous and designed to stop his work). When I introduced myself as he sat in the dock, he said: ‘This is all your fault. I read your book and thought ‘publish and be damned’, and here I am, damned!’ I am inspired by the courage and resilience of so many in the media who face grave risks in bringing important stories to light. They take their professional responsibil- ities of ensuring an informed citizenry, seriously. Besides the journalists, it is important to remember that much-maligned profes- sion, the lawyers. These handbooks could not have been written without the very generous assistance provided by lawyers, legal consultants and academics with better access to the laws of the countries under review than I have. As such, I am greatly indebted to Dr Tachilisa Balule (Botswana), Olivier Marc Mwamba Kabeya (Democratic Republic of Congo), Mabatsόeneng Hlaele (Lesotho), Kelvin Sentala (Malawi), Anushka Radhakissoon (Mauritius), Orquidea Palmira Massarongo (Mozambique), Adv Mohammed Tibanyendera (Tanzania) and Silas Dziike (Zimbabwe, Zambia, Namibia, Swaziland, and Seychelles). Sadly, I am not multilingual, and so I relied heavily on my able French and Portuguese translators (all of whom are also excellent lawyers). Laurent Badibanga for the Democratic Republic of Congo chapter and Chantelle De Souza and Orquidea Palmira Massarongo for the Mozambique chapter. Again, I am greatly indebted to them. v Media Law Handbook for Southern Africa – Volume 2 I also need to thank: ` Brigitte Read, of KAS, for ongoing general assistance ` Lisa Trocchi for the photograph ` Douglas White for editorial assistance ` Lynne McNamara for careful editing of the final text ` Heath White for the handbooks’ design and typesetting. Finally, this project would not have happened without the KAS Media Programme Sub-Sahara Africa. While the impacts of this kind of democracy-support are some- times hard to quantify, it is thanks to work of this kind, painstaking, in-depth, consistent and effective, that so many countries in southern Africa have engaged in media law reform initiatives. These include introducing access to information laws and independent regulators, transforming state broadcasters into public broad- casters and encouraging self or co-regulation of content. The progress is uneven, but it is evident. Programme Director Christoph Plate’s recognition of the impor- tance of media law reform and the impact it has on media operations, together with KAS’s generous financial support, have made this second edition possible. I am very grateful. In writing these handbooks, I recognize that censorship and other legal restrictions are only part of the difficulties faced by journalists on the Continent. Consequently, I would like to dedicate this edition of the Southern Africa Media Law Handbook to the journalists of our region, in recognition of the vital work they do and the dangers of it. This is exemplified by the disappearance of Mozambican community radio journalist Ibraimo Mbaruco on 9th April 2020. In his last communication, he said he was ‘surrounded by military’. He has not been seen since.1 Justine Limpitlaw 1 https://rsf.org/en/news/mozambique-case-missing-mozambican-journalist-referred- un#:~:text=Ibraimo%20Mbaruco%2C%20a%20reporter%20for,been%20raised%2C%20from%20 the%20head [Last accessed 10 December 2020] vi Foreword Dear Readers, KAS Media Africa, the Media Programme for Sub-Sahara Africa of the Konrad- Adenauer-Stiftung, brings together stakeholders in the media industry. We are working on business models for the media which the Covid-19 pandemic has made more necessary than ever. We discuss the credibility crisis of the media, and we work on strategies to counter fake news. Media Laws on the African continent have been amended, revised and rewritten since the first edition of the SADC Media Law Handbook was first published nearly a decade ago. The reasons for new media laws range from the advent of social media to the realisation of the powers-that-be that, with new technologies, they cannot control the narrative and discussion in the way they used to do. How does one balance the need to prevent hate speech with the necessity to question and control those in power publicly as well as those opposing them? Our legal expert, Justine Limpitlaw, has taken up the challenge of analysing and scrutinising the media laws of 13 southern African countries over the past four years. We present the results to you in this three-volume-edition. The work will, in the next few years, make its way into legal offices, newsrooms and courtrooms on the continent, just as the first edition did. It may be the biggest compliment to the author and her many collaborators from as far afield as the Seychelles, Mozambique and Zimbabwe, that she has often been asked for legal advice from lawmakers, politicians and media experts when media laws are being redrafted in their respective countries. KAS Media Africa would like to thank Justine Limpitlaw and her team of lawyers for their tireless work, including translations in English, French and Portuguese. An accurate and robust quality media strengthens democracy and, therefore, needs the commitment of experts. It also needs you, the readers, who are welcome to share these three volumes’ digital versions on our website. Christoph Plate Director KAS Media Africa Johannesburg , South Africa January 2021 vii Media Law Handbook for Southern Africa – Volume 2 viii Abbreviations General ACHPR African Commission on Human and Peoples’ Rights Aids Acquired Immunodeficiency Syndrome AU African Union CEO chief executive officer DTT Digital Terrestrial Television EU European Union GDP gross domestic product HIV human immunodeficiency