some of these limitations actually entrench existing restrictive laws. For instance, preventing
the release of information because it is received in confidence can be used to justify the Official
Secrets Act 1963, which prohibits access to any kind of government-held information.
Before the Constitution was finalised, there were many objections to this basic law, “but it was
pushed through anyway.” Ironically, those who pushed it through are now reluctant to allow
constitutional rights in practice.
Customary law, which under Swaziland’s dual legal system has equal status with the Roman
Dutch Common Law and statutes, continues to restrict freedom of the media and freedom of
expression. For instance, there are cultural dictates that prevent people from criticising or questioning those in authority, especially the King. Although, in theory, the Constitution is supreme
over all other laws, unwritten customary law wields enormous power in practice and because
Swazi Law and Custom is not codified, it cannot yet be tested against the Constitution.
Section 268 of the Constitution states that the Constitution is to prevail when in conflict with
existing legislation. However, this does not mean all laws that contradict the Constitution
are automatically nullified. There is a raft of laws restricting media freedom and freedom of
expression that remain on the statute books (see 1.3). Only when these laws are challenged in
court, repealed or amended will they cease to have an impact. As long as these laws remain
unchallenged, “we are at sea.” For example, the Constitution protects freedom of association
and assembly, but the 1973 Proclamation banning political parties has not been declared unconstitutional, so there is much reservation and uncertainty about registering political parties.
The prevailing feeling is that there has been little real progress with regard to protecting and
guaranteeing freedom of expression and media freedom because of the onerous list of limitations
in Section 24 (3) of the Constitution, the failure to repeal or amend the laws that inhibit these
freedoms, the power of customary law and the ruling elite’s reluctance to see the constitutional
guarantees in action.
It should be noted that the Ministry of Public Service and Information is attempting to introduce
new media laws, including freedom of information legislation, aimed at reforming the media
landscape. Consultations on the draft bills are ongoing.
SCORES:
Individual scores:
Average score:

1.2

2, 2, 2, 2, 2, 2, 3, 2
2.1
(2005=1.5)

The right to freedom of expression is enforced and citizens,
including journalists, are practised without fear.

ANALYSIS:
There has been a noticeable increase in the exercise of freedom of expression, both by individuals and the media. It is more common now to hear people challenging government and
speaking out. The media is giving voice to a greater diversity of opinions. During a recent
workers’ strike, trade unionists and other progressives were granted considerable airtime on
state television: “They wouldn’t have had such a platform in the past.”
This increase in free expression can be credited, in part, to the adoption of the Constitution,
which has created greater public awareness about freedom of expression. The fact that the
So This Is Democracy? 2007

-227-

Media Institute of Southern Africa

Select target paragraph3