Elections are set for 23 August. Although there are 11 candidates on the presidential ballot this year and 38 different parties contesting council and parliamentary seats, in reality the face-off is between two main contenders: current President Emmerson Mnangagwa and the ruling party ZANU-PF, and Nelson Chamisa, who heads the Citizens Coalition for Change. The CCC, an offshoot of the splintered opposition Movement for Democratic Change, is currently considered the leading opposition party in Zimbabwe.

With courts across the country in overdrive hearing just under 100 election-related cases, inevitably the current and topical conversations have been focused on who will be on the ballot papers and who will be excluded. With cases being bounced around from nomination court and high court to the supreme court for appeal, it is akin to riding on a roller coaster.

In this second national vote since the unceremonious departure of former president Robert Mugabe, citizens are faced with a highly charged political landscape and a minefield of contradictions. People are looking for a respite from the cascading effects of hyperinflation, high levels of unemployment, rampant corruption and erratic service delivery. Instead, each day further complicates the already complex backdrop to these elections.

The contentious issues centre on access to the voters roll; the controversial delimitation report; cycles of political violence, which have intensified as polling day grows closer; “judicial capture” (judicial persecution and the abuse of the legal system to close civic space and target human rights defenders and pro-democracy activists); the partisan nature of the security sector; as well as the introduction of numerous new pieces of legislation that legitimise the stranglehold on civic freedoms.

Impediments to inclusivity

A highly disturbing feature of this election is the decreased participation of women. After winning her legal bid to contest, Elisabeth Valerio – head of the newly formed United Zimbabwe Alliance – is the sole woman in this year’s presidential race. Despite a robust legal framework that places a strong emphasis on women’s rights and their inclusion in public office, only 11% (70/637) of women made it through the nomination court for the National Assembly – down from the 14.4% (237/1648) in 2018’s elections.

Tafadzwa Tseisi, a gender rights advocate who has been working with women in the political arena, attributes the lower levels of participation to:

• structural barriers within political parties
• online and offline violence
• patriarchal belief systems around women taking up leadership positions
• lack of capital for campaign financing
• cultural and religious beliefs around the education of women so they are less capacitated than their male counterparts

The prevalance of online and offline violence was flagged by African Commission on Human and Peoples’ Rights (ACHPR) Commissioner Janet Ramatoulie Sallah-Njie, the country rapporteur for Zimbabwe and special rapporteur on the rights of women in Africa, after reports she received about “women allegedly experiencing gender-based violence and discrimination due to their own affiliation or that of their relatives with opposition political parties.”

In her press statement, Commissioner Ramatoulie Sallah-Njie urged the government “to take decisive legal measures and collaborate with relevant stakeholders to address the long-standing historical discrimination that has hindered women’s political participation and create a safe and supportive electoral environment where women can actively engage without fear of digital or physical attacks in the lead-up to the 2023 election.”

Another limiting factor raised by candidates – and women in particular – were the hefty nomination fees instituted in August 2022 by the Zimbabwe Election Commission (ZEC), with the approval of the Minister of Justice, Legal and Parliamentary Affairs. Minister Ziyambi Ziyambi’s dismissive response to the numerous complaints was to describe candidates as “lacking seriousness and unworthy of the positions they want to be elected for,” according to a report in All Africa.

Weaponisation of the law

The strategic use of the law to alternately facilitate processes favourable to the state and obstruct civic society’s work around transparency and accountability is a skill that has been mastered by ZANU-PF’s ruling administration over the years.

As Chris Maroleng, international CEO of Good Governance Africa, observes: “In Zimbabwe we’ve seen an erosion of the rule of law, and this has been replaced by rule by law. What is interesting is that ZANU-PF has effectively used legislative instruments to limit civil society operations and democratic space.”

A case in point is the passage of the the Criminal Law Codification And Reform Amendment Bill, which has been referred to as the “Patriot Bill” and the “Patriotic Bill” because of a clause that would criminalise activities perceived to be seen as: “wilfully damaging the sovereignty and national interest of Zimbabwe”. The rather vague and broad language may lack clarity for interpretation in the courts, but it has the clear intent of deterring “opposition activists from urging or recommending sanctions . . . and if they are subjected to prolonged and difficult trials they will be distracted from their oppositional activities,” explains parliamentary watchdog, Veritas.

Commissioner Ourveena Geereesha Topsy-Sonoo, ACHPR Special Rapporteur on Freedom of Expression and Access to Information, wrote to President Mnangagwa advising him against signing off on the bill, warning that it would have far-reaching consequences on freedom of expression and association.

It contradicts what human rights lawyer Chris Mhike points out is the mantra of the ‘Second Republic’ – as President Mnangagwa likes to call his administration –  which promised “drastic governmental change… and that democracy would be strengthened so as to enhance the important principles of equity, freedom, provision of vital social goods and services, and good governance.”

Ironically the Data Protection Act, which amends the Criminal Law (Codification and Reform) Act and has been primarily used against journalists, so far, was used to prevent political parties, election watchdogs and other stakeholders from getting a digital copy of the voters’ roll. The country’s electoral management body refused on the grounds “that this would compromise the security of its database.”

Access to information and information integrity

Of the numerous shortcomings in terms of access to information, the most glaring is the lack of diversity in media coverage and the issue of bias, which Patience Zirima, director of Gender Media Connect, feels could be attributed to media ownership.

On 25 July 2023, CCC spokesperson Fadzayi Mahere issued a statement criticising the Zimbabwe Broadcasting Corporation (ZBC) and other state media coverage of political parties, stating that they had “skewed news and current affairs” in favour of President Emmerson Mnangagwa’s ZANU-PF party.

As Zirima explained to me: “there is very little distinction between coverage that is election related and the coverage that really covers ZANU-PF as the ruling party and the president as the incumbent, and a disproportionate advantage comes about as a result.”

To guard against unequal coverage by national television and radio stations operated and controlled by the ZBC, MISA Zimbabwe wrote to ZEC requesting a schedule for the ZBC. This was with the understanding that “it is essential to effectively monitor how public media discharges its duties and if this is in keeping with provisions of the Constitution. Section 61 (4) (c) of the Constitution states that all state-owned media of communication must afford fair opportunity for the presentation of divergent views and dissenting opinions.”

While they did not receive a direct response, the schedule was published in The Herald on 28 July, three days after the follow up letter.

Parties shortchange public

The most glaring information deficit in this election is from political parties who seemed to have sidestepped presenting what their policies will be if elected.

Douglas Mwonzora of the MDC launched his election manifesto at the party headquarters on 31 July, promising his party would bring “everlasting peace, tranquillity and tolerance.” He has since withdrawn from the elections.

Ruling party ZANU-PF said “it would not produce a flowery document as its manifesto … but is standing on the record of the Second Republic and will let its life-changing developmental projects delivered to the people in the past five years speak for themselves … ” While the current administration is adamant that the bulk of the promises made were fulfilled, an independent platform – ZimCitizens Watch – refutes this.

The CCC put out mixed signals, claiming that Chamisa launched the party’s manifesto on 16 July at a rally in Gweru, but subsequently going on to social media to say they would soon launch their blueprint.

Even Saviour Kasukuwere, a former minister under the Mugabe regime who may not even end up on the ballot as a presidential candidate, managed to virtually present his 84 page vision and agenda on 25 July.

Veteran journalist Owen Gagare points out that manifestos are the pledge to the citizenry by which parties are held to account. “In the absence of manifestos, the election ceases to be about ideas but about personalities. Beyond their personalities, political leaders and parties should let the electorate know how they intend to move the country forward; how they intend to deal with the plethora of problems the country is facing. Besides, the media and Zimbabweans at large need to hold political leaders to account. How do we make them accountable if we do not have anything to judge them by?”

Lack of accountability

While the grievances by CCC that they are participating in an election that puts them at a major disadvantage are valid, they too are shortchanging their constituents, demonstrating a lack of accountability on many levels.

Despite heavy criticism, the party continues to function without a constitution. Zirima noted that “the absence of a constitution makes it difficult for other party members and the public to challenge the selection and nomination process.”

With respect to candidate selection, the CCC adopted what it described as “a citizens-centred selection process” but then ignored the results, sidelining those who were chosen by constituents and imposing candidates selected by head of the party. The court case initially barring 12 CCC candidates from participating in the August ballot underscores the opaque and dictatorial processes within the party. The choice to present the candidates’ papers so close to the closing deadline of nomination court also raised doubts about the opposition’s credibility.

Safeguarding freedom of expression

MISA Director Dr. Tabani Moyo describes a cocktail of proactive and defensive mechanisms that MISA-Zimbabwe and MISA-Regional use to fight back against deliberate attempt to curtail freedom of expression, access to information and media freedom rights.

Soon after mobile phone subscribers received messages soliciting votes ahead of the 2023 elections, they wrote to the the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) as the oversight body working on data protection issues to investigate the breach. The letter asked “how third parties accessed citizens’ personal data, including phone numbers, saying the messages were personalised and based on constituency segmentation as per the voters’ roll, and possibly in breach of the Act, which governs the use of personal biometric data.”

With the safety and security of journalists of paramount importance, MISA-Zimbabwe has also:

• Compiled a report on Zimbabwe’s media landscape prior to elections and legislation that regulates the media and its impact on journalists covering elections.
• Held nationwide police-media engagement meetings, spearheaded by MISA Zimbabwe, in partnership with the Media Alliance of Zimbabwe MAZ, and anchored on the Police Media Action Plan of December 2017.
• Held meetings with the Parliamentary Portfolio Committee on information, media and broadcasting services and the Ministry of Information, Publicity and Broadcasting Services on reforms to preclude a double accreditation process for journalists covering elections.
• Held a safety and security training workshop for young women journalists covering elections.
• Held separate multi-stakeholder meetings with critical political party heads, the Zimbabwe Media Commission and members of parliament to assess state of readiness for media to cover elections safely.
• Organised digital literacy campaigns raising awareness on disinformation, misinformation and the Cyber and Data Protection Act.
• Worked with Signs of Hope – an organisation working with people living with disabilities – to engage ZEC and ZBC in enforcing the 2018 court order that ordered the national broadcaster to provide information to people with disabilities.

Whatever the outcome of the elections, this cycle of advocacy – which has often yielded positive results – will need to be re-ignited with the newly elected members of parliament and newly appointed ministers.

July regional updates in brief

A rewarding month: Veteran Togolese journalist Ferdinand Ayité, director of online investigative publication L’Alternative, was honoured by the Committee to Protect Journalists with this year’s International Press Freedom Award. Dr. Tabani Moyo, regional director of the Media Institute of Southern Africa, and director of MISA-Zimbabwe was elected to serve as IFEX convenor for the next three-year term. Dr. Moyo was also selected to be part of an international committee of experts, established by Reporters Without Borders and partners, that will work on developing a charter aimed at regulating the use of AI in media. The committee is led by 2021 Nobel Peace Prize laureate Maria Ressa and includes “distinguished members from 13 different countries, academic and professionals in the fields of journalism, AI and digital technologies.”

Nigeria: Priestba Nwokocha, the news director at the Rivers State Broadcasting Corporation (RSBC), in Port Hartcourt, was abducted by armed men while she was on her way home from work. The Nigeria Union of Journalists (NUJ), Rivers State Council, has called on security agencies to secure her release.

Burundi: Journalist Floriane Irangabiye, who has been in prison since 2022, was back in the spotlight as media advocacy organisations demanded she be given medical treatment as her health deteriorates. At the beginning of this year, Irangabiye was given a 10-year-sentence and fined 1,000,000 Burundian Francs (US$480) for what have been described as trumped-up charges.

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In a letter to President Mnangagwa last week, the Commissioner advised that the proposed law will have the effect of curtailing the exercise of rights such as media freedom and freedom of expression, the right to privacy, access to information, freedom of conscience, political rights, freedom to demonstrate and petition, and freedom of assembly and association.

Commissioner Ourveena Geereesha Topsy-Sonoo, the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information has written to President Emmerson Mnangagwa, advising him against signing the Criminal Law (Codification and Reform) Amendment Bill into law.

Commissioner Topsy-Sonoo warned that the Bill, popularly known as the Patriot Bill will have far-reaching consequences on freedom of expression and association in Zimbabwe if signed into law.

In a letter to President Mnangagwa last week, the Commissioner advised that the proposed law will have the effect of curtailing the exercise of rights such as media freedom and freedom of expression, the right to privacy, access to information, freedom of conscience, political rights, freedom to demonstrate and petition, and freedom of assembly and association.

The Patriot Bill, Commissioner Topsy-Sonoo said, will potentially cripple the work and mandate of non-governmental organisations.

This will affect the work of human rights-related organisations whose task is to observe and seek redress on human rights violations most of which are committed by state and non-state actors. This conflict between the government and human rights civil society will severely shrink, if not kill civic space, she said.

She warned that the Bill will severely infringe the right to privacy, as it has the potential of creating further avenues for surveillance, tracking of internet usage and accessing of private communication records.

On 31 May 2023, the National Assembly passed the Criminal Law (Codification and Reform) Amendment Bill, with the Senate subsequently following suit.

The Bill is now awaiting Presidential assent before it becomes law.

The Patriot Bill follows on the heels of the Private Voluntary Organisations Amendment Bill, which is also awaiting presidential assent before it comes into effect.

Both Bills have been criticised as having a chilling effect on freedom of assembly, the right to free expression and the right to privacy, among other rights.

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Two months before presidential and parliamentary elections on 23 August, Reporters Without Borders (RSF) urges Zimbabwe to abandon a proposed “sovereignty and national interest” law that poses a major threat to journalism. Freedom of expression must be safeguarded, RSF says.

Zanu PF, the party that has ruled Zimbabwe since independence, used its parliamentary majority to get the draconian new bill – called the Criminal Law (Codification and Reform) Amendment Bill, or Patriot Bill for short – passed on the night of 31 May.

Clause 2 of this loosely worded bill provides for a death sentence or life imprisonment for anyone “wilfully injuring the sovereignty and national interest of Zimbabwe” by attending a meeting when they have “reason to believe” that its aim is “to consider or plan armed intervention.”

If the meeting’s aim is “to subvert or overthrow the government,” participants will face up to 20 years in prison. If sanctions or a commercial boycott of Zimbabwe are discussed, they could get a ten-year sentence.

Now that it has been approved by the senate, the Patriot Bill – which could clearly be used to imprison journalists covering meetings – will take effect as soon as it receives approval from the president, who has three weeks to sign it into law from the moment he receives it.

Journalists are exposed to the heavy penalties envisaged in this law, which violates the constitution and international standards on freedom of expression. This law is a formidable tool that will completely muzzle the press. Two months before the presidential and parliamentary elections, we urge the authorities to respect basic human rights, which include the right of assembly, the right to express oneself, and the right to inform. Journalists must be able to carry out their work without fear. 

Sadibou Marong, director of RSF’s sub-Saharan Africa desk

Zimbabwe Lawyers for Human Rights executive director Roselyn Hanzi said the law “will set a bad and dangerous precedent on the continent” and could lead to more self-censorship in Zimbabwe.

“If a journalist is invited to attend a meeting by a foreign government, they may be forced to reject the invite as they will not know if these topics will not be discussed,” she said. “Any other participant at the meeting can raise that subject, and mere attendance may even lead to arrest.”

As the bill’s provisions are loosely worded, they are liable to be misinterpreted and are therefore all the more likely “to stifle freedom of expression,” Hanzi warned. Some of the provisions violate Zimbabwe’s constitution, article 48 of which limits the death penalty to persons convicted of aggravated murder.

Hopewell Chin’ono, a journalist who has often been arrested and threatened for criticising the government, condemned the bill when it was passed on 31 May. “A very sad day for Zimbabwe today,” he tweeted. “Free speech is now dead.”

Ruling party legislator Joseph Chinotimba insisted that the bill was “honourable and nourished by good intentions.” He said: “This bill does not aim to reduce the existence of political parties, but to encourage Zimbabweans to love their country and stop denouncing it.”

Zimbabwe’s legislation continues to impose heavy restrictions on its media. Some draconian laws were repealed but were replaced by others that are just as harsh and still limit journalistic freedom. To avoid reprisals, journalists routinely censor themselves.

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Stakeholders argue that the digital version of the voter roll is vulnerable to manipulation

As Zimbabwe heads for elections in August this year, electoral watchdogs continue to implore the government to implement meaningful electoral reforms such as availing the digital version of the voters’ roll.

However, the body charged with election administration, the Zimbabwe Electoral Commission (ZEC) is firmly resisting these calls citing the need to comply with the Cyber and Data Protection Act 2021. In the interests of transparency and public interest, the conduct of electoral officials has only served to impugn the credibility and integrity of the whole electoral process. Earlier this year, voters received unsolicited text messages from the ruling ZANU PF party, which has been in power for 43 years, highlighting significant information security breaches.

Of cyber law and public interest

Although physical copies of the voters’ roll can be accessed at the ZEC offices, stakeholders argue that the digital version is vulnerable to manipulation by political actors with an interest in determining the electoral outcome. In April this year, ZEC chairperson Priscilla Chigumba told parliament that releasing the electronic version of the voters’ roll, as demanded by opposition political parties, would violate the Cyber and Data Protection Act. Chigumba said that the cyber law has placed additional responsibilities on the commission in terms of the format in which data should be disseminated to the public, in order to protect voters’ personal data.

She added that there is need to ensure that the Electoral Act be aligned with the Cyber and Data Protection Act in the interests of ensuring that voters have ready access to the voters roll while guarding the public from identity theft. Her remarks to parliament come shortly after the High Court rejected a lawsuit by Harare North member of parliament Allan Markham, of the main opposition party Citizens Coalition for Change (CCC), seeking to compel ZEC to release the electronic version of the voters’ roll for inspection and audit. In a ruling, Justice Never Katiyo concurred with ZEC that releasing the digital version of the roll would compromise the security of its database. Markham has since taken the matter to the Supreme Court.

However, civil society groups accuse the election management body of deliberately violating the constitution, under the guise of complying with the cyber law. Section 11 (5) (h) of the Cyber and Data Protection Act provides that a Data Controller, in this instance ZEC, shall process sensitive data if the processing of data is authorised by a law or any regulation for any other reason constituting substantial public interest. Furthermore, Section 21 (3) of Zimbabwe’s Electoral Act authorises ZEC to “…within a reasonable period of time provide any person who requests it, and who pays the prescribed fee a copy of any voters’ roll either in printed or in electronic form as the person may request.”

However, the ZEC has a consistent track record of denying opposition parties and the public access to the voters’ roll. In a statement, independent watchdog, the Election Resource Centre (ERC) argued that ZEC is legally obligated by both laws to avail voters roll data as it constitutes substantial public interest, and its availability is necessary for electoral participation and the realisation of political rights.

“The continued denial of the voters roll especially to persons with a legitimate interest in the voters roll and free and fair elections… under the guise of data protection is unlawful and detrimental to the credibility of the 2023 harmonised elections,” the ERC said.

In emailed responses to a Global Voices enquiry, human rights lawyer Nompilo Simanje pointed out that the feedback from ZEC as represented by Chigumba highlights a critical legal issue that there is a need for harmonisation of laws. “While access to the voters’ roll is provided for in terms of the Electoral laws, ZEC indeed also has obligations in terms of the Cyber and Data Protection Act which places obligations on the use, transmission and dissemination of data,” she said.

Simanje said that this is an issue where a balance has to be found between promoting access to information and promoting the right to privacy.

Popular Zimbabwean journalist Hopewell Chin’ono tweeted that without a voters’ roll, the election is already rigged in favour of the ruling party ZANU PF.

When political capital trumps data protection

The stakes remain very high for the ZANU PF government, as elections slated for August draw closer. A state security affiliate known as Forever Associates Zimbabwe (FAZ) headed by Central Intelligence Organization Co-deputy Director Brigadier General (Rtd.) Walter Tapfumaneyi is reportedly working with ZEC to manage the polls in favour of incumbent President Emmerson Mnangagwa. FAZ has been allocated USD 10 million to prepare for the elections, although the arrangement is not constitutional.

In April this year, a number of eligible voters received accurately targeted campaign SMS messages from the ruling party, with details such as voters’ full names and where message recipients had registered to vote. Several citizens raised concerns about how they had received these targeted campaign text messages from the ruling party, inferring that this data was obtained from ZEC’s servers. Data analysis group, Team Pachedu tweeted that voters in new constituencies were receiving unsolicited messages from the ruling party ZANU PF.

These personal data breaches, being administered under a biometric voting system, pose a substantial threat to citizens’ freedom of expression, privacy and political association rights.

The group also alleges that ZEC is deliberately refusing to avail the digital version of the voters’ roll for auditing in order to manipulate the electoral outcome. In the tweet, the group alleges that ZANU PF political operatives are moving voters en masse from rural areas to urban areas, where the opposition has always held strong political support.

These data breaches are not new on Zimbabwe’s electoral stage. In the run-up to the country’s 2018 elections, the then main opposition party, the Movement for Democratic Change Alliance, raised concern over significant data security breaches in relation to the election. These ranged from selective access to voters’ personal data, voters receiving bulk campaign SMS texts from the ruling party, the integrity of voters’ biometric data, and the failure of ZEC to fully divulge the ballot paper’s hidden technological capabilities and security features.

In a research paper titled “Dynamic data obfuscation ahead of Zimbabwe’s elections” technology and law expert Arthur Gwagwa posits that, in the case of Zimbabwe, a pattern is emerging where the country is gradually acquiring outsourced biometric based technologies, often from China, sometimes to control when such information can be accessed and under which conditions. He notes that the government may encrypt or use similar technologies to hide information that gives it an advantage, while it uses information security doctrine and rule by law to cement its position.

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National Social Security Authority boss Arthur Manase is said to have reported The NewsHawks to the Commissioner-General of Police Godwin Matanga to urgently deal with its journalists for allegedly defaming, cyberbullying, and harassing him.

According to The NewsHawks, Manase, through his lawyers, reportedly wrote to the Commissioner General saying that The NewsHawks is in violation of the Cyber and Data Protection Act.

The online publication said Manase reportedly claims that he was subjected to cyber bullying, harassment and transmission of false data messages intending to cause harm at the hands of The NewsHawks.

MISA’s position

MISA Zimbabwe reiterates its call for all responsible authorities to ensure that media houses and journalists are allowed to operate without hindrances that come in the form of threats or intimidation.

Aggrieved parties should lodge any complaints against the media with the Zimbabwe Media Commission or the Voluntary Media Council of Zimbabwe for redress.

It is also trite to note that criminal defamation was abolished in Zimbabwe after the Constitutional Court found it to be unconstitutional in the case of Madanhire and Anor v The Attorney General 2014 (1) ZLR 719 (CC).

The court held that the criminalisation of speech had a stifling effect on free speech. The court further added that it was a disproportionate instrument to use especially where other remedies were available.

MISA Zimbabwe calls upon the responsible authorities to protect journalists as they conduct their work and implore them to repeal Section 164C of the Criminal Law (Codification and Reform) Act as amended by the Cyber and Data Protection Act, which relates to publishing false data messages intending to cause harm. This section instils self-censorship among journalists to the detriment of citizens’ right to access information.

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In his letter, Dr Moyo said the clarification sought would ensure that journalists are able to cover the registration exercise without hindrance as provided for by Section 61 of the Constitution, which protects media freedom, as well as Section 62 on the right to access to information.

Journalists are free to cover the ongoing Zimbabwe Electoral Commission (ZEC) mobile voter registration exercise using their Zimbabwe Media Commission-issued press cards.

On 13 March 2023, the Centre for Innovation & Technology (CITE), a Bulawayo-based media house, reported that they had challenges covering the mobile voter registration blitz in Bulawayo because they were not accredited by ZEC.

MISA Zimbabwe also received a similar concern from a Harare-based journalist who faced similar challenges while covering the voter registration exercise.

This prompted MISA Zimbabwe National Director Dr Tabani Moyo to write to ZEC Chairperson Justice Priscilla Chigumba on 14 March 2023, seeking clarification on the authenticity of these reports and concerns by the media as a matter of urgency.

In his letter, Dr Moyo said the clarification sought would ensure that journalists are able to cover the registration exercise without hindrance as provided for by Section 61 of the Constitution, which protects media freedom, as well as Section 62 on the right to access to information.

MISA Zimbabwe is pleased that ZEC has since swiftly responded to the concerns raised assuring journalists that they have the right to cover the voter registration exercise without hindrance.

On 16 March 2023, ZEC on Twitter said: “The Zimbabwe Electoral Commission (ZEC) would like to advise the media that journalists who have a valid Zimbabwe Media Commission accreditation card can access mobile voter registration centres to cover the programme.”

MISA Zimbabwe commends ZEC for its swift response and clarification in upholding the right to media freedom and the media’s right to access to any information held by the State or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability as provided for by the Constitution.

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Ensure free expression, peaceful assembly ahead of elections

Zimbabwe police on March 4, 2023 stormed the stage and shut down the show of a popular musician known for his critical commentary, Human Rights Watch said today. Wallace Chirumiko, 40, known as “Winky D,” is a celebrated reggae-dancehall artist who recently released an album that contains lyrics against social and political injustice, corruption, and the economic meltdown in Zimbabwe.

Zimbabwe authorities should promptly investigate and take appropriate action against officials responsible for this and other acts of intimidation, harassment, and threats against artists peacefully expressing their views. Particularly ahead of general elections expected in July or August, the authorities need to fully respect and protect the rights to freedom of speech, expression, and assembly.

“Shutting down Winky D’s show sends a message that Zimbabwe’s authorities are willing to harass even the most popular performers for what they say,” said Idriss Ali Nassah, senior Africa researcher at Human Rights Watch. “The Zimbabwe government needs to quickly take strong action to demonstrate that free expression will be respected, or there will be genuine concerns that upcoming elections can’t be credible, free, and fair.”

Following the release of Winky D’s album in January, the Economic Empowerment Group, a lobbying group affiliated with the ruling Zanu-PF party of President Emmerson Mnangagwa, held a news conference saying that Winky D should be banned from performing at any public event or public venue in Zimbabwe, and that all local radio stations should be forbidden to play his music.

The group accused the musician of instigating dissent among the country’s youth as part of a “regime change agenda.”

Members of Zimbabwe’s arts community expressed concern that the government’s actions against Winky D are part of a broader threat to basic rights and liberties ahead of the general election.

Professor Fred Zindi, an academic, author, and musician, told Newzimbabwe.com:

Winky D’s song ‘ibotso,’ which talks about corruption, mismanagement and the abuse of national resources by an elite few, rattled the authorities and has made Winky D a marked man. With elections looming, any politically conscious popular musician who sings about what is deemed to be anti-government sentiments becomes an enemy and the government will try to intimidate and suppress the thinking of that artist.

Theater and film producer Daves Guzha told Human Rights Watch: “The action by the police against Winky D was a clear abuse of power. The National Arts Council of Zimbabwe should stand with artists and take a position to push back against such abuse of power by the state and its agents.” He said: “We can’t have a situation where artists can’t freely express themselves because they fear to be harassed, arrested, or have their rights violated. It is not a crime being an artist.

During the same weekend, another popular musician known as Baba Harare, who has over 400,000 Facebook followers and has been using his platforms to encourage young people to register to vote, posted that the police had refused to grant him permission to hold a show. He said no reasons were given.

On March 5, Baba Harare wrote on Facebook: “It is with great disappointment that I have to inform you that my scheduled show in Chitungwiza has been cancelled. Police did not give us clearance to perform.”

“The harassment of musicians highlights the Zimbabwe government’s growing intolerance of voices deemed critical to the Mnangagwa administration in the run-up to mid-year elections,” Nassah said. “The authorities should stop harassing artists and allow them to express their views and practice their art without fear. The authorities should swiftly act to ensure that police are impartial and are not used to violate freedoms of association and expression protected by international law.”

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SADC member states should further ensure that the enacted and proposed domestic laws are aligned with the African Union (AU) Convention on Cyber Security and Personal Data Protection and the ACHPR’s Revised Declaration on Principles of Freedom of Expression and Access to Information.

By Tabani Moyo

Four Southern African Development Community (SADC) countries are scheduled for elections in 2023. The four are the Democratic Republic of Congo, Eswatini, Madagascar and Zimbabwe.

Eswatini stands out among the four nations, as the monarchy has gone awry.

Eswatini

The Kingdom stands out as one of the rogue countries that are intolerant to divergent views. The administration has been dominating the headlines at a global level for its heavy-handed response to citizen protests and petitions.

On 21 January 2023, prominent human rights defender and organiser Thulani Rudolf Maseko was assassinated in cold blood at his home in the presence of his family. The callous murder of the renowned lawyer received wide condemnation from the Southern Africa Development Community (SADC), the African Union (AU), the United Nations (UN), the diplomatic community and civil society from the region, continent and globally, calling for the assailants to be held accountable.

In 2021, the monarchy responded heavy-handedly to protests by the pro-democracy movement in the country by firing live ammunition at unarmed protesters and assaulting and jailing civil society leaders.

This was followed by the government shutting down the internet twice in July and October, as the authorities hunted down the organisers in the darkness of the shutdowns.

The elections this year, coming on the backdrop of the assassination of the human rights defender, crackdowns on protesters, and internet shutdowns, cast a very dark shadow on the monarchy’s ability to organise and discharge free, credible and transparent elections.

This is so because the right to expression, media freedom and access to credible information is foundational towards informed decision-making by citizens.

Democratic Republic of Congo

The country’s current regime came to power with promises of sweeping reforms. However, the media remains regulated by outdated laws, such as the press law that imposes jail sentences and heavy fines for journalists.

The country is also notorious for frequently switching off the internet, with the first shutdown being in 2011. This was to be followed by shutdowns in 2015, 2016 and 2021. This is a challenging development as DRC is one of the biggest countries in sub-Saharan Africa, where newspapers are concentrated in the capital city, Kinshasa, while only state-owned media covers the bulk of the country. In such a situation, access to the internet enhances citizens’ decision-making. In 2021, 110 violations against the media were recorded, including the murder of a community radio director, as documented by Reporters Without Borders in 2022.

Madagascar

There are minimal attacks on journalists in this country. However, some laws impact the practice of journalism, such as the communication law passed in 2016, which criminalises the publication of falsehoods.

Zimbabwe

Despite positive developments in media freedom and the right to free expression in Zimbabwe, the government seems to take two steps forward and five backward in fostering the enjoyment of these rights. Some positive developments in the sector include the repeal of the infamous Access to Information and Protection of Privacy Act (AIPPA) in 2020 through the enactment of the progressive Freedom of Information Act (FOIA).

The move by the government to update the media through post-cabinet briefings is welcome as it increases access to information for the people of Zimbabwe.

In addition, the government licensed community radio stations for the first time in the country’s more than four-decade post-independence existence.

However, moves by the government to introduce the highly discredited Private Voluntary Organisations (PVO) Amendment Bill, which is seen as targeting dissenting voices in civil society; the amendment of the Criminal Law (Codification and Reform) Act to criminalise the engagement of embassies by locals without government approval; the enactment of the Cyber and Data Protection Act in addition to the repressive architecture of laws such as the Censorship Entertainment and Controls Act; the Interception of Communications Act;  ZBC Commercialisation Act and the Broadcasting Services Act, among others, keeps denting the country’s global standing, and worse off during elections.

This is the season when the safety and security of journalists and media workers is an issue of grave concern. In the last general election in 2018, a total of 32 journalists, including local and international journalists, were at the receiving end of the attacks, assaults, harassment, and detentions.

Further, Zimbabwe has been one of the countries that fell into the hall of shame of being among the countries that shut down the internet. In 2016, the administration throttled the net during protests and shut down access to the platform for a week.

In 2019 in the face of national protests, it took MISA, in partnership with the Zimbabwe Lawyers for Human Rights (ZLHR), to end the week of internet shutdown darkness by challenging the government’s actions at the High Court.

2024 onwards

The electoral season will go into full swing in 2024, as a record seven countries are headed for one form of election or the other. The countries include Botswana, which is falling from being a shining beacon of hope to a repressive administration.

Madagascar is holding its second-round presidential election, while Malawi goes to the polls to elect constituency and local representatives.

Mauritius, Mozambique and South Africa will hold general elections for the presidential, constituency, and provincial representatives, while Namibia is scheduled to elect a new president.

Suffice it to point out that the Windhoek +30 Declaration – Information as a public good –  is one of the most relevant instruments by Africa and for Africa in providing direction on the need for citizens to access information with minimum state and big tech interruptions.

This instrument, read together with the revised African Charter on Human and Peoples’ Rights (ACHPR) Declaration on the Principles of Freedom of Expression and Access to Information, are fundamental as the declaration provides for the internet as a basic human right.

This, therefore, brings to the fore the need for citizens of the region to be able to access information that is accurate and verified at all times, as we are in a season that requires credible information for informed decision-making.

This is particularly so in this period of information and misinformation disorders. This is further made complex with the deployment of Artificial Intelligence that is not localised and unable to pick misinformation that is spread through vernacular languages and pointing to the need for decolonising the development of AI in favour of an AI regime that anchors on indigenous knowledge systems.

A worrying trend in the region in this age of misinformation and disinformation is that a SADC Heads of Government meeting in Maputo in August 2020 resolved to take “pre-emptive measures against external interference, the impact of fake news and abuse of social media, particularly in electoral processes”.

In the wake of the resolution, there seems to be a dangerous regional consensus to crack down on free expression online. Several Southern African countries have since begun or accelerated cyber security law-making, which we find somewhat problematic, as the proposed legislation has a chilling effect on freedom of expression and of the media in Southern Africa.

To illustrate this, countries such as Botswana, Eswatini, Tanzania, Malawi, Zambia and Zimbabwe have already passed cyber security and cybercrime laws, while Namibia, Mozambique and Lesotho are in the process of crafting legislation on cybersecurity and cybercrime.

There is a need for countries in the SADC region to adopt a Human Rights-Based Approach in this regard.

Such an approach will ensure that enacted or proposed legislation takes into account the urgent need to balance cybersecurity needs with the need to protect and promote the fundamental right to privacy.

SADC member states should further ensure that the enacted and proposed domestic laws are aligned with the African Union (AU) Convention on Cyber Security and Personal Data Protection and the ACHPR’s Revised Declaration on Principles of Freedom of Expression and Access to Information.

Closely linked to this is the problematic issue of mass surveillance during elections.

In February 2021, Citizen Lab, a Toronto-based research organisation, conducted research on the use of spyware. It detected that seven African countries were using the Circles spyware to snoop on citizens’ communications.

Zimbabwe, Zambia and Botswana are among the seven African countries from the SADC region that were reportedly using this spyware.

The number of countries and scale of surveillance is likely to increase in the election season due to the growing dominance of China in the region.

In addition, a dangerous trend in the form of restricting or shutting down civic organisations is gaining ground, starting with Uganda in East Africa, while Zimbabwe is in the process of crafting a law to empower the government to shut down civil society organisations that are performing checks and balances on officialdom during and after elections.

This is in addition to the arrests, assaults, detention, and abductions of civic actors in the region. Malawi has already passed the law, just as Tanzania did.  Zimbabwe is at the tail end of the process, while Mozambique is in the initial stages. In 2023, with elections looming large, civic space is bound to shrink further.

Given the foregoing, the following minimum conditions must prevail before the elections are held in the five SADC countries:

• As it is their constitutionally protected right to media freedom, the AU/SADC should impress on the governments of Eswatini, DRC, Madagascar and Zimbabwe to ensure that journalists covering the elections execute their legal professional tasks without interference.
• The respective governments should direct the police to take action against heinous acts of lawlessness, which put the lives of journalists, media professionals, and their families at serious risk.
• Political party leaders should remind their supporters that their actions seriously infringe on both peoples’ and journalists’ fundamental rights to freedom of the press and access to information.
• Political leaders should exercise caution when making statements that can provoke and excite their supporters into using force (against journalists), and thus ruining the reputations of their respective parties and their nations.
• When it comes to political parties and citizens’ equal and equitable access to the state media, the AU/SADC should demand that electoral authorities uphold the SADC Principles and Guidelines Governing Democratic Elections.
• Newspapers should be permitted to circulate and be freely distributed throughout the different nations since they are essential to citizens’ access to information and their ability to make educated election-related decisions.
• The internet should be protected from wanton throttling or shutdowns, as it provides critical information for citizens and the media to make informed decisions during and after elections.
• United Nations, working with the AU and SADC, should set a high benchmark for member states guiding the regulation of civic actors in the region and globally to push back the structured targeting of CSOs.
• The AU must mobilise member states to develop a common position on Big Tech to invest in the localisation and decoloniality of the development of the same through anchoring it on indigenous knowledge systems.

Dr Tabani Moyo doubles as the Regional Director for MISA Regional Secretariat & National Director for MISA Zimbabwe. He can be contacted at tabani@misa.org  or visit www.misa.org

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By Nompilo Simanje

Zimbabwe should #KeepItOn# It should also be noted that neither criminalising the publishing of falsehoods or imposing internet shutdowns are reasonable, justifiable and proportionate mechanisms to curb the spread of disinformation.

Internet shutdowns have become a common trend in Africa, especially during elections, protests or other conflicts.

In Southern Africa, many countries have a history of internet shutdowns, including Zimbabwe, Zambia, Lesotho, Eswatini, Democratic Republic of Congo and Tanzania.

At the recently concluded Internet Governance Forum in Addis Ababa, Ethiopia, from 28 November to 2 December 2022, several conversations were held on the need to promote internet access and openness of the internet.

These included the following sessions accessible on YouTube:

• Help! The Kill switch is taking away my limited agency
• Safeguarding human rights with a free and open internet
• The impact of internet shutdowns on refugees and host communities

This clearly indicates how internet shutdowns have become an issue of concern across the region, creating an urgent need for sensitisation and awareness raising on the impact of internet shutdowns on civil, political and socio-economic rights and also on industries, which include agriculture, health, education, retail, financial services, tourism and transport, among others.

At a High Level Dialogue at the IGF, a question was posed on whether governments resort to internet shutdowns in times of conflict due to their limited capacity to handle the conflict.

Zimbabwe was represented by the Minister of Information, Publicity and Broadcasting Services, Senator Monica Mutsvangwa who highlighted that:

“There is a need to maintain connectivity and free access at all times but balancing the right of the population to digital access with the right of the population to safety and peace.”

She also further indicated that:

“Shutdowns during conflicts could be attempts by governments across the world to prevent the use of digital platforms and social media to spread propaganda and fake news, which may result in more bloodshed, loss of life and even genocide.”

This statement raises several key issues which include the legality or illegality of internet shutdowns, the approaches to tackling disinformation and also the attempts by governments to regulate access to information.

This is particularly concerning because Zimbabwe is already in election season, building up to the 2023 elections, during which the possibility of internet shutdowns or throttling is  highly likely given the experiences elsewhere in the region.

Principle 6b of the 2011 Joint Declaration on Freedom of Expression and the internet is very clear that ‘Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the Internet) can never be justified, including on public order or national security grounds. The same applies to slow-downs imposed on the Internet or parts of the Internet.’

Principle 38 (2) of the Revised Declaration of Principles on Freedom of Expressions also notes that:

“States shall not engage in or condone any disruption of access to the internet and other digital technologies for segments of the public or an entire population.”

This therefore highlights that conflict and national security cannot be relied on as justifiable reasons for imposing internet shutdowns.

Contrary to the hypothesis that internet shutdowns help to protect people in times of conflict, it has been noted that instead, they perpetuate threats to physical security, as people will have no means for communicating and raising awareness.

In addition, cognisance should be taken on the influence and day-to-day impact of the internet, including the following civil, political and socio-economic rights, espoused in the Zimbabwean Constitution that are negatively affected by internet shutdowns:

• Right to personal security.
• Freedom of assembly and association.
• Freedom to demonstrate and petition.
• Freedom of expression and freedom of the media.
• Access to information.
• Political rights.
• Right to education.
• Right to health care.
• Right to food and water.

Further, Netblocks also developed a Cost of Shutdown tool which shows the economic impact of internet shutdowns. In January 2019, when the Zimbabwean government illegally imposed an internet shutdown, it is recorded that Zimbabwe lost at least USD5.7 million per day.

It should also be noted that neither criminalising the publishing of falsehoods or imposing internet shutdowns are reasonable, justifiable and proportionate mechanisms to curb the spread of disinformation. This is a position supported in regional and international instruments and standards and also a position that was discussed at a recent workshop on rights based approaches to tackling disinformation hosted by the Centre for Human Rights and MISA Zimbabwe.

In light of the above, it is critical that the government should be more focused on promoting universal access to all including through the following globally promoted interventions:

• Improving information and communication technology and internet infrastructure for universal coverage.
• Establishing mechanisms for regulating market competition to support lower pricing and encourage diversity.
• Promoting local access initiatives such as community networks for enabling the increased connection of marginalised, unserved or underserved communities.
• Put in place regulatory mechanisms – which could include pricing regimes, universal service requirements and licensing agreements – that foster greater access to the Internet, including for the poor and in ‘last mile’ rural areas.
• Promote adequate awareness on how to use the Internet and the benefits it can bring, especially among the poor, children and the elderly, and isolated rural populations.
• Put in place special measures to ensure equitable access to the Internet for people with disabilities and for disadvantaged persons. 

Nompilo Simanje is MISA Zimbabwe’s Legal and ICT Policy Officer.

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