SCANDALIZING THE COURT AND FREEDOM OF EXPRESSION

The Nation and its editor have recently been sentenced to a E200,000 fine or 2 years imprisonment for the contempt of court known as scandalizing the court (to read the judgment, click HERE).  This is a type of contempt of court which makes it an offence to detrimentally affect the administration of justice as a whole, usually by 'scurrilous abuse' or alleging illegal bias of a particular judge or a court.  It does not require a specific case to be affected, which is usually the time when a contempt charge would be brought, for example if a person ignores an order of a court.

But the contempt of scandalizing the court may require a connection to a case, judge or court beyond that of mere observer.  This entry looks at the cases relied on in Attorney-General v Swaziland Independent Publishers Pty Ltd & Bheki Makhubu (the "Swaziland Independent Publishers Case"), to see whether the law of contempt for scandalizing the court for general or post-trial statements has such a requirement.  This entry does not address the merits of the decision, instead focussing on one particular aspect of the offence and its interaction with modern freedom of expression as contained in s 24 of the 2005 Constitution.  

Precedents where trial pending

To explore this, we can put to one side those cases of contempt relied on in the judgment where a pending case was said to be affected. There was no allegation that any particular trial was affected in the Swaziland Independent Publishers Case. In this regard, I note that:  Solicitor General v Radio New Zealand (1994) concerned a media company interviewing jurors in a pending trial; and AG v Newspaper Publishing PLS (1987) involved a British newspaper publishing confidential material which was the subject of on-going proceedings.

The situation is less clear for Rex v Gray (1900) 2 QB 36.  In the Swaziland Independent Publishers Case,  His Honour Justice Maphalala suggests that this concerned post-trial statements.  My research suggests that the proceedings were ongoing and that the journalists had proceeded to publish the very material they had been directed not to publish.  Any clarification on this issue would be greatly appreciated (my email is swazibillofrights@gmail.com).    

Post-judgment comments

Of the cases relied on in the judgment, I have been able to analyse three that relate to material published after a trial has been completed and judgment handed down.  One of these is an old English case, R v Editor of New Statesman (1928), which involved a statement by the paper that one could not expect a fair trial before a certain judge on account of his religious convictions.  

The other two are more recent.  The Australian case of Gallagher v Durack (1983) (HERE) involved the head of a union who was convicted for saying that a court had ruled the way it did in a case involving his union because of a strike by the union during the trial.  The Canadian case of R v Kopyto (1988) (HERE) concerned statements made by a lawyer after a decision went against his client.  Both of these cases involved statements made by a person directly involved in a recently-concluded case.

Mamabolo

This ties into the South African Constitutional Court's decision in S v Mamabolo 2001 (HERE),  which is referred to extensively in the Swaziland Independent Publishers Case.  Mamabolo involved a statement by a spokesperson for a prison that an order granting bail had been made incorrectly and that the prison would not abide the order and release the prisoner.  The South African Constitutional Court upheld the finding that the spokesperson was guilty of scandalizing the court.  As South African media lawyer, Dario Milo, has pointed out (HERE), however, the Constitutional Court stated that the "the scope for conviction on [the charge of scandalizing the court] must be narrow indeed if the right to freedom of expression is afforded its appropriate protection."  One appropriate way of limiting the scope of the offence of scandalizing the court for comments made after the conclusion of a trial, or where the comments do not involve a particular case, may be by requiring that the alleged offender is something more than a mere observer of any case, judge or court.  In Mamabolo, the fact that the spokesperson for the very prison holding the person granted bail was the one making comments about the judgment would seem to satisfy this requirement for a connection between the alleged contempt and the court.  

R v Editor of New Statesman (1928) was decided long ago in an age not accustomed to human rights and a jurisdiction without jurisprudence around freedom of expression as it is defined in the Swazi Bill of Rights.  More modern case law suggests that in order for the offence of scandalizing the court to be made out in respect of comments made after a judgment has been handed down, or where these comments are directed to a particular judge or a court as a whole,  a more direct connection is required between the alleged wrongdoer and the judge or court than that of ordinary commentator.  If that is so, and I am not aware of any supreme court or regional/international body ruling directly on this question, then the the publisher and its editor ought not have been convicted. 

WORLD PRESS FREEDOM DAY 2012

Freedom House, an international non-governmental organization interested in media and other freedoms, has released its press freedom rankings, as it does every World Press Freedom Day.  Swaziland is ranked 168 out of 197 countries (HERE).  That's down two places from last year.

SUMMARY OF SWAZILAND UPR

The International Service for Human Rights (ISHR) in Geneva has produced a summary of Swaziland's universal periodic review (UPR).

It notes that Swaziland claimed it was considering ratifying the Optional Protocol on the Convention Against Torture (HERE).  

Key recommendations out of Swaziland's UPR include:

• Take immediate measures to ensure the independence of the judiciary.
• Ease legislative requirements regarding the registration of independent media.
• Allow for the registration and operation of political parties and ensure free, transparent, and regular elections.

The full summary can be read HERE.

For further information about removing the ban on political parties, see my blog HERE.

UN HUMAN RIGHTS COMMITTEE AND SBIS RADIO

The Human Rights Committee has released a new General Comment on freedom of expression and opinion under the International Covenant on Civil and Political Rights (ratified by Swaziland in 2004):  click HERE.

There are many sections which are relevant to Swaziland, but probably none more so than this:

"States parties should ensure that public broadcasting services operate in an independent manner.  In this regard, States parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence." ( at [16].)

Of course, even if SBIS was independent, the same challenges would remain for Swaziland.  There would just be more discussion and ideas about how to overcome them.

Please Give Me Your Details, and We'll Call You Right Back.

This week a colleague of mine had a conversation that showed how far the Swazi government is from internalizing its own Constitution.  We had heard that the Government Press Secretary circulates an email on resolutions etc taken by the Cabinet after each Cabinet meeting. As we work in an NGO, we felt it might be really useful to be on that list.

So my colleague called up the Cabinet Office, and we were bowled over by the conversation.

Us (after friendly intros): So, do you think we could be placed on the mailing list?

Them: I'm sorry, the mailing list is only for the media.

Us: But surely if it's going to the media, it doesn't matter if it also goes to an NGO?

Them: Um...I'll have to ask the Prime Minister about that. Please call back.

Section 1 states that Swaziland is a "democratic Kingdom."  Section 24 ensures the right to access information within the right of free expression.  I wonder if the Cabinet Office will remind the PM of that, when asking about our request?

The Soil That Grew The Media Commission Bill

AThe Media Commission Bill (HERE) has been gazetted and it presents a significant challenge to media freedom in Swaziland.  In brief, the government Commission will have powers to:

(a)    hear complaints about the print media (s 7(h) and s 16);

(b)   establish a Code of Ethics for print journalists (s 7(k), s 15(2) and s 24(i) – although there it is called a Code of Conduct);

(c)    admonish a journalist (s 17(3)(a));

(d)   issue a costs order against a media institution (s 17(3)(f)); and

(e)   Most infamously, register and deregister journalists, although this may not in fact be legal even within the terms of the proposed Act itself.  This may not be legal because the Commission is not given this power in the Bill.  Instead, within the ‘Complaints Procedure’ section (s 17), if the Commission is satisfied that a journalist or institution has breached the Code of Ethics, the Commission may (s 17(3)(g)) “impose any reasonable conditions for the suspension of registration, for a period not exceeding one month”.  However, registration of journalists or media institutions is not mentioned anywhere else in the Act, thus s 17(3)(g) is most likely unusable for vagueness.

There has been quite a lot of resistance to the Media Commission Bill, especially amongst journalists (HERE) and progressives, and there will no doubt be a constitutional challenge to such a law, if it passes.

I do not want to focus on the constitutionality of the Bill in this article.  Rather, I’d like to briefly examine the grounds that have given rise to the possibility of such a Commission. 

The most surprising aspect to me of this whole business is the evident support that such a Commission holds amongst the public at large in Swaziland.  This boggles the mind.  How could a nation actually want the government (of all things) to be more involved in deciding who gets to discuss what? 

The most obvious answer is the terrible standards of reporting generally subsisting here. (For excellent analysis of which see Richard Rooney's blog 'SwaziMedia' HERE.)  When a woman has been bashed for being unfaithful, the story will often focus on her infidelities rather than her injuries.  If a child has been molested, an article might be overtaken with needless sensationalism or worse, the identity of a child might be revealed.  It seems to me that there is a lot of hostility towards the press in your average Swazi.  And the standards of journalism are no doubt the cause of this.  This is the type of concern regularly trotted out by Media Institute of Southern Africa (MISA) Director, Comfort Mabuza, when talking about the need for some sort of complaint mechanism, which currently does not exist.  And it is exactly the reason given by the government for this Bill.

But the standards of journalism are not the only reason a government-regulated Commission has been proposed in Swaziland.

The fact is that the self-regulatory model, which is the norm in most countries, could never grow here in Swaziland for an altogether more practical reason:  no one will continually fund it.

The maths is pretty simple: besides the little players, there are four Media Houses in Swaziland.  Two of these are newspapers, one TV and one radio.  Of these four, only one is privately owned.  For a self-regulatory system to operate it needs funds.  These funds would need to come from these four Media Houses. 

But, and here is where the matter becomes constitutional, three of these four Media Houses are not genuinely interested in operating as Media Houses.  These are government-owned and operated entities.  Or at least, in the case of The Observer, ownership is so close to the royalty that it might as well be called a government paper.  I do not want to sound so cynical as to suggest that government media are not interested in a self-regulatory complaints mechanism.  But they are not really interested in diverting funds to such a system here.  Why?  Three forces interplay here.  First, the government Media Houses don’t really have any money in the first place.  The managers do not have final say over staff structure or budget, and they all seem to have somewhat bloated, cumbersome operations.  At one talkshop, for example, all the participants from SBIS (radio) described themselves as civil servants.  Journalists/presenters even regularly rotate into other departments and ministries.  To pay money out into a self-regulatory complaints system would be politically difficult, and commercially nonsensical for most of these places.  Second, the government Media Houses are not really afraid of a government commission to regulate journalism where, as stated, the operators and ‘owners’ (or at least those owning an extra interest, beyond that of being the taxpayer) are pretty cosy with the government anyway.  And in fact, can be removed directly by Ministers or royalty if they do something inappropriate or illegal.  This might be called the comparative advantage of the government Media Houses.  Why pay money to an organization that is going to tell you what you have done wrong, in contrast to a government system, when the government is going to tell you what you have done wrong anyway?  Third, the government Houses more often than not act as government spokesdepartments anyway.  Besides directly reporting the silly statements that MPs and Ministers sometimes make here, they tend not to court controversy.  Exceptions exist – for example, Khulumdumban’dumbane (on radio), but these are usually understood to be comedic shows here, and therefore well within the realm of parody.  Most stories from SBIS, or Swazi TV, or The Observer just repeat some government initiative announced by some Minister.  Even if its controversial, it’s not the type of thing that a Swazi citizen would feel comfortable complaining about, no matter how independent the complaints mechanism is.

 

This leaves the drive for a self-regulatory system up to the one independent operator in town, The Times of Swaziland.  ‘Surely they would be interested in a self-regulatory system?’ I hear you scream.  Well, certainly they aren’t really interested in the government meddling with their journalists.  But here the lack of competition comes into play.  Paul Loffler, the white owner of The Times of Swaziland, does not deeply care about journalism or freedom of the press in Swaziland.  He is by all accounts more of a businessman than a dyed-in-the-wool newspaperman.  So if you were a business, with a cosy little monopoly, would you be interested in diverting some of your profits into some complaints organization that was going to allow your business to be criticized, or would you just let that task be picked up by the taxpayer?  It’s a pretty simple equation for a businessman sitting on the mother of all cash cows. 

So, the self-regulatory system, and all it entails for freedom of expression, depends on money.  And what does this money depend on?  Diversification of media ownership, including government allowing the management of its public broadcasters to act genuinely independently.  And in the current political set-up there will be no such thing any time soon.

This is quite the media quandary here.  If the government-sponsored Media Commission is declared unconstitutional, Swazis won’t have a mode by which to make complaints about media reporting.  And under the current constitutional arrangement, a non-government one will never arrive.