ANALYSIS OF COVID-19 REGULATIONS VIS-À-VIS FREEDOM OF EXPRESSION IN THE SADC REGION

if public debate or dialogue on matters on public
concern is stifled.

including health experts is grappling with.
Consequently, there are still grey areas regarding
this disease and to expect all information to
be authenticated information is impossible.
Thus, while restrictions are necessary as part
of crisis management, it is important to note
that the restrictions should not be excessively
criminalised and leave room investigate and
explore this COVID-19 phenomenon.

Also, regarding the enforceability of the
disinformation regulations, for all the countries
that have been identified, there is no indication
that the law enforcement departments were
trained to handle disinformation cases. This
lack of training could result in unfair and
unjustified arrests because of the failure by
the police to comprehend the determinants of
disinformation. 82Also, it will be cumbersome to
prove or defend elements such as the ‘intension
to deceive, rumours and opinions.’83There are
instances where intention to deceive or to
cause harm could not have been foreseen. Such
vaguely couched laws that restrict of freedom of
expression are incompatible with international
standards that regulate restrictions on freedom
of expression84 and can be misused in emergency
situations to justify criminal defamation which
intimidates people from speaking out especially
journalists and other media practitioners.
Provisions of such laws should be articulated
with clarity.

The over-criminalisation can potentially
suppress dissemination of objective speech.
While the main motive is to protect public
health, approaches to control disinformation
should be based on international human rights
standards.85Over-criminalisation falls beyond
the scope of what is necessary, reasonable
and proportionate as decreed by international
standards. In addition, the penalties are severe
(up to 20 years in Zimbabwe). There is a possibility
of being prosecuted even if reasonable steps had
been taken to verify information if it turns out
that the information is false. 86Consequently,
the over-criminalisation and harsh penalties
could result in self-censorship. Self-censorship
will disadvantage the public who are in need of
information that could help them comprehend
the global crisis as it unfolds.87

The regulations seem to be spirited in muzzling
alternative sources of information and social
media promoting officialdom of news and
information only from government departments
and mainstream media. The regulation requires
publication or dissemination information
that has been authenticated and based on
information from official sources. The COVID-19
pandemic is a new disease that everyone

In Zimbabwe, while the ‘presumptive purpose’
of the regulation is to curb false information,
what is actually prohibited is the “publication or
communication of false news about any public
officer, official or enforcement officer involved
with enforcing or implementing the national

82 TF Hodgson et al ‘Southern Africa has cracked down on fake news, but may have gone too far’ https://mg.co.za/
article/2020-04-05-southern-africa-has-cracked-down-on-fake-news-but-may-have-gone-too-far/
83 TF Hodgson et al as above.
84 Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda adopted in Vienna, on 3 March 2017
https://www.osce.org/files/f/documents/6/8/302796.pdf
85 https://w w w.accessnow.org/cms/assets/uploads/2020/04/Fighting-misinformation-and-defending-free-expression-duringCOVID-19-recommendations-for-states-1.pdf
86 TF Hodgson et al n 55 above.
87 TF Hodgson et al ‘Southern Africa has cracked down on fake news, but may have gone too far’ https://mg.co.za/article/2020-04-05southern-africa-has-cracked-down-on-fake-news-but-may-have-gone-too-far/ (accessed 14 June 2020).

https://zimbabwe.misa.org

20

Select target paragraph3