ANALYSIS OF COVID-19 REGULATIONS VIS-À-VIS FREEDOM OF EXPRESSION IN THE SADC REGION lockdown in his or her capacity as such, or about any private individual that has the effect of prejudicing the state’s enforcement of the national lockdown.”88The provision is couched in the language of criminal defamation. Criminal defamation is disproportionately restrictive. actions by law enforcement agents deny the media an opportunity to facilitate debate and to provide the public space to scrutinize various government interventions and responses to the COVID-19. Such open debate is necessary for transparency and accountability. The seizure of the journalists’ equipment and work documents in Eswatini is also not necessary as it is likely to force journalists to practice self-censorship. In addition, the identification of those who generate and disseminate disinformation could potentially result in disproportionate online surveillance which could infringe on the right to privacy online and possibly stifle online prodemocracy activism.93 These COVID-19 regulations might derail the decriminalisation of defamation that had been achieved in some countries in Africa. Criminalising speech stif les dissent and compromises the enjoyment of freedom of expression. 89 The Human Rights Committee cautioned against these excessive punitive measures90 and this position was affirmed by the African Court on Human and Peoples’ Rights.91 The Court held that such measures are incompatible with international human rights law and standards and therefore violate freedom of speech. Through Declaration, the African Commission calls on states to review all criminal restrictions of content to ensure that they are justifiable and compatible with international human rights law and standards and repeal laws that criminalise sedition, insult and publication of false news.92 The COVID-19 pandemic has “provided governments with a new excuse to wield laws criminalizing the spread of “fake news,” “misinformation,” or “false information” and offered a reason to implement new ones.”94TF Hodgson et al argue that although the right to freedom of expression can be limited, these regulations that criminalise publication of false news are “strictly necessary to ensure the protection of public health or proportionate”.95 The aim of protecting public health can still be achieved with less punitive or less restrictive measures, instead of the criminalisation that gives latitude to the governments to determine the standard of truth, which could be subjective and journalists, whistle-blowers or any other The arrests in Eswatini were not necessary and proportionate in that the police were abusing the COVID-19 regulations to clamp down on the media for merely reporting on the state’s preparedness and response to the COVID-19 pandemic. Such 88 Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order, 2020 Statutory Instrument 83 of 2020 https://www.chr.up.ac.za/images/researchunits/litigagion/covid19_country_regulations/Zimbabwe- Public_Health_COVID-19_ Prevention_Containment_and_Treatment_National_Lockdown_Order_2020.pdf (accessed 13 June 2020). 89 ‘Media Release: New South African regulation “criminalizing” fake news/disinformation about COVID-19’ 20 March 2020 https://mediamonitoringafrica.org/2020/03/20/media-release-government-gazette-criminalizing-fake-news-disinformation- around-covid-19/ (accessed 14 June 2020). 90Human Rights Committee General Comment No. 34 91 Konaté v Burkina Faso [Application 004/2013 (2013)] 92 Declaration, principle 20. 93 ‘Spain: Concerns as Penal Code used to criminalise jokes and misinformation about coronavirus’ 17 April 2020 https://www. article19.org/resources/spain-penal-code-used-to-criminalise-jokes-and-misinformation-about-coronavirus/ 94 K Jacobsen ‘Amid COVID-19, the prognosis for press freedom is dim. Here are 10 symptoms to track’ https://cpj.org/reports/2020/06/ covid-19-here-are-10-press-freedom-symptoms-to-track/ 95 TF Hodgson et al n 55 above. https://zimbabwe.misa.org 21