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>X-POP3-Rcpt: dlush@ingrid
>Date: Fri, 27 Oct 95 14:04:11 GMT
>From: "S. York" <article19@gn.apc.org>
>To: dlush@ingrid.misa.org.na
>Subject: mozambique
>Cc: article19@gn.apc.org
>
>       The press is required to register with the Ministry of
>Information, but this is a purely formal requirement which the
>authorities have no discretion to refuse (Articles 19-25).
>       Political parties with representation in parliament have
>the right to broadcasting time on radio and television. The
>opposition has the right to reply to government statements on
>radio and television. During election periods the competing
>parties are entitled to equitable broadcasting time (Article 12).
>       Article 27, on the rights of journalists, protects against
>arbitrary interference in editorial decisions, as well as against
>intimidation and detention of journalists in the course of their
>duties. Article 30 guarantees the right of journalists to protect
>the confidentiality of their sources without punishment.
>Violating the rights, freedoms or guarantees contained within the
>press law is an offence punishable by a fine.
>       The law establishes a Supreme Council for Mass
>Communications to monitor the implementation of its provisions. It
>has 11 members: two appointed by the President of the Republic,
>four elected by the Assembly of the Republic, one judge, three
>journalists' representatives and one representative of media
>companies (Articles 35-40).
>       The press law clearly represents a significant advance in
>the status of the media in Mozambican society and in the legal
>protection of its independence. Protection of the confidentiality
>of sources, for example, is a progressive provision. However, in a
>number of respects the press law still fails to provide adequate
>mechanisms for giving effect to the lofty principles which it
>enunciates. In particular, it retains provisions which could be
>used to place unacceptable limits on the media. In this regard,
>there are two major deficiencies: the failure to provide a
>statutory framework to guarantee the operational and editorial
>independence of the state-owned media, notably radio and
>television, and the special protections afforded to the President
>of the Republic against defamation or "affront".
>
>Restrictive Press Law Provisions
>
>Among the articles of the press law which should, in ARTICLE 19's
>view, be amended are the following:
>
>Article 3: The Right to Information The "right to be informed on
>relevant facts and opinions" contained in the law does not clearly
>establish the responsibility of government to provide information
>freely to its citizens, subject only to the limitation of genuine
>interests of national security, personal privacy, commercial
>secrecy and the operation of the judiciary. Further legislation
>establishing the mechanisms whereby citizens can achieve access to
>information would be valuable in giving substance to this right.
>
>Article 4: Aims of the Press The first of these is defined as "the
>consolidation of national unity and the defence of national
>interests". The language of this provision is vague and liable to
>abuse. The "defence of national interests" could be invoked by
>government to restrict critical comment or reporting on sensitive
>matters, while the "consolidation of national unity" could
>similarly be used to restrict peaceful advocacy of opposition or
>sectional interests.
>
>Article 5: Rights and Duties Journalists are obliged to respect
>"the imperatives of foreign policy and of national defence". Since
>these are matters of government policy, this represents an
>unwarranted and unjustified limitation on the right of the media
>to report or comment critically. This requirement should be
>repealed.
>
>Article 6: Ownership of the Media Article 6(3) allows the state to
>acquire holdings in the mass media beyond those defined as being
>in the public sector, namely radio, television and the national
>news agency. ARTICLE 19 believes that this provision extends state
>involvement to an unwarranted degree. In practice, as is the case
>with "Noticias" and "Domingo", the involvement of state agencies
>in nominally private media is a means of continuing to exercise
>informal editorial control.  Such involvement poses a threat to
>pluralism and editorial independence and should be discontinued.
>
>
>Article 9: Directors of the Public Media Directors of the mass
>media in the public sector are appointed by the government.
>Although Article 11 states that the public media shall be free
>from outside interference ~ and although the government has taken
>practical steps to loosen the formal relationship between
>government and the public sector media ~ the fact that the
>directors of Radio Mozambique and other institutions are appointed
>by the government means that ultimately they are beholden to the
>government. A buffer needs to be placed between government and the
>public sector media, which would guarantee their independence and
>protect them against interference. In South Africa, for example,
>the Independent Broadcasting Authority, which has responsibility
>for regulating both public and private sector broadcasting, plays
>such a role. It is an independently-appointed body of experts who
>have no material or economic interest in the mass media.(34) The
>Supreme Council for Mass Communications could play such a role, if
>its composition and method of appointment were amended to ensure
>its independence from government (see below).
>
>Article 33:   Right of Reply The legal provision of a right of
>reply need not be an interference with the freedom of the media to
>publish reporting and comment. However, in the Mozambican statute,
>the right is defined extremely broadly to apply to "all individual
>or collective persons or public bodies who feel injured by the
>publication or radio or television broadcast of untrue or
>erroneous references that may affect the reputation and good name
>of such citizens or institutions".  It may be useful for
>individuals to exercise a right of reply to media inaccuracies as
>an alternative to litigation. However, this right should only be
>invoked when the report contains a substantial error of fact.
>Investigative reporting and vigorous comment may from time to time
>involve errors, stated in good faith, which do not alter the
>substance of the argument being made.  It is not conducive to
>press freedom for every such mistake to be the potential subject
>of the right to reply, since it will have the effect of inhibiting
>the press from investigations or comment. The right of reply
>should serve primarily as a means of guaranteeing a voice to a
>private individual who lacks other means to reply to inaccurate
>reporting. Institutions, especially state bodies, generally have
>other means at their disposal by which to correct inaccuracies. At
>a minimum, the law should be amended to exclude state organs from
>the right of reply.
>
>Articles 35-40: Supreme Council for Mass Communications The
>Supreme Council for Mass Communications is defined as the body
>"through which the state guarantees the independence of the mass
>media, the freedom of the press and the right to information, as
>well as the exercise of the right to broadcasting time, and the
>right of reply." In practice, the Council has been criticized both
>for its ineffectiveness and for its unrepresentative character. In
>particular, it has been remarked that the main opposition party,
>RENAMO, is unrepresented. The National Journalists Organization
>(ONJ) has claimed that journalists are under-represented.
>       ARTICLE 19 considers that, as presently framed, the law
>creates an
>effective pro-government majority on the Supreme Council, with two
>nominees of the President of the Republic and four elected by
>parliament. A preferable arrangement would be for all members to
>be independent individuals, appointed in a transparent process
>according to publicly available criteria. The appointment process
>should guarantee diversity of political, ethnic, social and
>professional backgrounds, and members should not maintain any
>interest,
>financial or political, that could impair their ability to
>discharge their duties in a fair and impartial manner. The Council
>could report to an all-party committee of the Assembly of the
>Republic, but it should be clearly stated that the Council is
>independent of parliament on all editorial and management matters.
>If such an independent council were created, it could then assume
>responsibility for a variety of additional functions, including
>the issuing of broadcasting licences and the formal registration
>of the printed press. While it is appropriate for complaints about
>broadcasting, which is more closely regulated because of the
>limited availability of frequencies, to be dealt with by a
>statutory body, no such justification exists for the printed
>media. ARTICLE 19 believes that statutory press complaints bodies
>pose an unacceptable risk to editorial freedom and, therefore,
>that the press should be subject only to the ordinary law. Matters
>of professional ethics should be regulated on a voluntary basis by
>an independent, professional body, free of government control.
>
>Articles 41-49: Defamation The articles dealing with the offences
>of "abuse of press freedom", including defamation, contain a
>number of weaknesses which present a danger to freedom of
>expression. While it is legitimate to allow the possibility of
>redress for an unwarranted slur on an individual's reputation, it
>is wrong in principle for defamation ever to be a criminal matter,
>carrying a penalty of imprisonment (Article 47). Equally, the law
>should not give additional protection against defamation to the
>President of the Republic and other public figures (Articles
>46-7). On the contrary, the press in a democracy should have
>greater latitude to criticize public figures. These provisions
>appear to violate international standards on freedom of
>expression. The European Court of Human Rights, for example, makes
>clear that public officials must tolerate a greater level of
>scrutiny and criticism than private individuals, and that
>individuals cannot be punished for the expression of opinions,
>unless they are expressed in an extremely offensive manner,
>because it is impossible to prove the truth or falsity of an
>opinion.
>       Under Mozambican law, the defence that the facts which were
>printed or broadcast were true is not an absolute defence to the
>charge of defamation.  Article 47 provides that the President and
>foreign heads of state may be defamed even if the stated facts are
>true. Similarly, the courts have the discretion to rule that it
>was not in the public interest for certain true facts to be
>published (Article 47(1)). Truth should be a complete defence to
>the crime of defamation. A good faith and reasonable belief in the
>truth of a statement should also be a defence, and should be a
>complete defence where the journalist or publication has published
>a reply, retraction or correction. That the publication was in the
>public interest should also be a defence in defamation cases.
>       The law provides protection against publication of facts
>about an individual's private or family life. This could inhibit
>legitimate investigation of the lives of public figures, which
>might indeed prove to be matters of public interest. The law
>should make clear that public officials are entitled to protection
>against invasion of privacy only concerning matters that have no
>relevance whatsoever to their ability, capacity or qualifications
>to perform their public functions.
>       The penalties prescribed for a recurrence of the crimes of
>defamation and affront are draconian, including suspension of
>publication. Such penalties can only encourage public figures to
>institute defamation suits in the hope of silencing press voices
>of which they disapprove. Suspension of publication and onerous
>fines, because of their chilling effect on media freedom, are
>disproportionate punishments for defamation.
>
>Article 50: Clandestine Press While it is not a violation of press
>freedom to establish a formal registration requirement such as
>that in Article 19 of the press law, the penalties against the
>"clandestine press" are disproportionate. The offences of
>producing or circulating unregistered publications ~ the
>"clandestine press" ~ carry up to a two-year prison sentence and a
>fine. This is a provision which could be used to silence marginal
>voices, such as fringe publications which have failed to register.
>It is notable that the penalty for publishing an unregistered
>media organ is heavier than for violating the rights and freedoms
>of the press law itself.
>
>CONCLUSION: THE NEED FOR INSTITUTIONAL
>REFORM
>
>Much work remains to be done to complete the democratic transition
>in Mozambique. A significant step towards loosening official
>control of the media was President Chissano's abolition of the
>Ministry of Information, and the creation of a modest bureau of
>information in the Prime Minister's office. The bureau will
>function as a press office and will register publications. Even
>before the Ministry was abolished, a dozen or so licences had been
>issued to private radio stations. Once these stations are
>operational, a wide variety of programmes will be heard, though
>mostly in the cities.
>       Transforming Radio Mozambique into a public service company
>was also a positive step, as was the replacement of the
>pro-FRELIMO director. But journalists remain sceptical about the
>independence and leadership style of his replacement, Tiago
>Viegas, who was appointed by the government. Moreover, news
>reporting at RM continues to be uncritical, rather than contextual
>or analytical. Donors also are concerned that the reform of RM and
>TV Mozambique has not gone far enough, and insist that financial
>independence from the Ministry of Information has not made them
>independent of government. They demanded accelerated privatization
>during the donor conference in Paris in March and the government
>appears to be preparing for this. However, reform of broadcasting
>must take account of the fact that in a country as poor and
>overwhelmingly rural as Mozambique, there will be little or no
>private commercial interest in national broadcasting. Furthermore,
>the requirements of public service broadcasting cannot easily be
>fulfilled by private broadcasters because of the potential
>conflict between these requirements and the commercial interests
>of the broadcaster. Thus, in Mozambique, the need for publicly
>funded broadcasting will continue. The crucial step, therefore, is
>to establish a legal framework which guarantees the independence
>of publicly funded broadcast media from the control of the
>executive.
>       A more independent tone has already been set by "Noticias",
>       which, since the election and under new direction, has
>become more critical of government and encourages readers to
>express their views in its letters page.  For instance, it
>attacked President Chissano's appointment of Manuel Antonio as
>Minister of the Interior, blaming the "arbitrary behaviour of the
>police and its complicity with criminals" on Antonio's
>leadership.(35) On the other hand, some observers still feel that
>"Noticias" and "Domingo" have continued to be faithfully servile
>in presenting only the government's point of view.
>       If the Chissano government is to support the development of
>a free and independent press further, it must consider the
>economic problems faced by small newspapers. Specifically,
>independent journalists are calling for a change in customs
>regulations that keep tariffs on imported newsprint high. There
>has also been a call by the independent media and donors for
>greater transparency regarding the government's subsidy of
>"Noticias" and "Domingo", including an assumed subsidy on imported
>paper. Equipment, such as computers, software and printers, are
>also expensive because of the exchange rate and tariffs. Moreover,
>higher pay for media workers should be supported, partly because
>low wages have been blamed for corruption.
>       The basis for independent and analytical reporting at RM
>now exists, yet problems persist. Privatization in an attempt to
>guarantee independence from government may not be an appropriate
>solution, not least because advertising revenues are probably
>insufficient to keep RM (or TV Mozambique) running. Nor is
>changing personnel the whole solution, for, as people at RM
>acknowledge, new staff may well adopt old methods of running the
>station and old styles of writing. What is needed now is adequate
>safeguards for the independence of the public service broadcast
>media, including an independent system for the appointment of
>directors, as well as the provision of training, support and
>resources for staff to enable them to operate in a truly
>independent public broadcasting service.    Training is needed at
>all levels ~ from financial management and editing to interviewing
>and writing. Many media workers are poorly trained, for virtually
>all Mozambican journalists and broadcasters learned their trade
>under the old system, when editorial control was strictly enforced
>and reporters were discouraged from acting independently. Unsure
>of themselves and the extent of their new freedoms, many
>journalists still feel the need to be guided and lack the
>confidence to take the initiative. Training is the way forward,
>and organizations supportive of reform have a role to play in
>funding such programmes and training institutions.
>       Also, journalists must be made aware of their rights, and
>in this regard improvements suggested by media workers elsewhere
>in the region can be adapted to the Mozambican situation. For
>instance, the Declaration of Lusaka on Media and Freedom of
>Expression in Southern Africa, with its resolutions on legal and
>constitutional reforms as well as on strategies for economic
>survival and protection of an independent media, offers a way
>forward for Mozambican media workers and government.(36) The work
>undertaken by journalists in Malawi since the 1994 election ~ on
>

David Lush
Media Institute of Southern Africa (MISA)
Private Bag 13386
Windhoek, Namibia
Tel. +264 61 232975, Fax. 248016
e-mail: dlush@ingrid.misa.org.na