Author: Dércio Tsandzana
Researcher / Professor of political science at Eduardo Mondlane University
This article analyses two laws that are undermining freedom of expression (and freedom of press) in the context of conflict in Mozambique. The first is the proposed Law of Communications that intends to review the press law and the second is a law aimed at fighting terrorism in Mozambique. Both were proposed at a time when Mozambique has been experiencing ongoing armed conflict in Northern Mozambique since October 2017. Since then, several cases of human rights violations, imprisonment and disappearance of journalists have been reported. On 29 October 2022, a Mozambican journalist was forcibly disappeared in Cabo Delgado – he had been arrested while in the course of his trade. Thus, the approval of new laws in contexts of military tension may not only undermine freedom of expression in the country, but can also violate human rights in general. It is necessary to understand what impact these laws may have on the respect for freedom of expression and how they can affect the way information is disseminated in the context of conflict, where the spread of false news tends to increase.
In terms of structure, the article is divided in five parts: after this introduction, the second part presents a general discussion around the legal framework that regulates the spread of false news in the country; the third part discusses the Proposed Social Communications Law; the fourth section discusses the Law on the Prevention, Suppression and Countering Terrorism; the fifth part discusses the impact of these laws on international standards and freedom of expression; and the last part presents the conclusion and recommendations.
- Mozambique’s legal framework on false news
This section provides the legal framework governing dissemination or sharing of false news in Mozambique, given the fight against false news in the digital age is an ongoing debate in several countries. Mozambique does not have any legislation specifically focused on false news. However, both the Penal Code and the 1991 Press Law – which may be replaced by the Proposed Social Communication Law – include restrictions on false news. For example, article 398 of the Penal Code provides for an offence of disturbing public order or attempting to do so. It covers the instigation or provocation of collective disobedience against the laws of public order, essential public functions, or any attempt to disturb public order or peace by any means. In addition to that, article 398(2)(a) and (b) include in this, publishing false or biased news which may cause alarm or unrest or distributing or attempting to distribute written material which lead to the same result. So far, there are no specific cases of the application of this law to sanction any individual.
- Proposed Social Communications Law
This section provides the general landscape on the new law on communications, which is still under debate in parliament. It is a proposal that has been criticised by media organisations and civic associations because of its restrictions on freedom of expression, as it demands a new code of conduct for journalists and imposes new rules for the registration of media companies in the country. On 22 March 2021, drafts of a new media law and a new broadcasting law were debated for the first time in the Mozambican Parliament. That time, several civil society organisations, such as Media Institute for Southern Africa (MISA) and Electoral Institute of South Africa (EISA), expressed great concern at the public hearing that these laws would not only undermine the work of journalists, but also restrict freedom of expression and press freedom. In February 2022, the coordinator of the African program of the Committee for the Protection of Journalists (CPJ), Angela Quintal, described the new media law in Mozambique as “terrible”. For the organisation, the new media law is a major violation of press freedom.
The executive editor of Canal de Moçambique, Matias Guente, a newspaper whose offices were set on fire in 2020 by persons still unidentified, said about the new law that “the impression that remains is that [the legislative package] was conceived in a police station” and that “journalists are treated as the enemy”. The draft law provides that journalists lose the right to defend themselves in cases of defamation against the President of the Republic, although the right to defence is part of the Constitution. There is also a redefinition of restrictions on private investment in the media and the overlap between disciplinary and supervisory bodies. Without the regulator’s approval, no media company can have foreign financial involvement of more than 50%.
- Law on the Prevention, Suppression and Countering Terrorism
This section discusses the elements that make up the new law aimed at combating terrorism in Mozambique, the context of its approval and the criticisms made about the law. In June 2022 Mozambique passed a law to counter-terrorism. The law establishes the procedures to designate individuals, groups and entities associated with terrorist crimes and to freeze their funds and assets. It seeks to embargo the movements of individuals associated with terrorism or suspected of financing terrorism. The Mozambican chapter of the regional press freedom body, MISA Mozambique, denounced the law as a threat to freedom of expression. The organisation said it was concerned the law would seek to charge anyone who was involved in the “reproduction of statements about terrorism.”
Even if legislation is important to counter terrorism in Mozambique, the provisions restricting online false news relating to terrorism in this law raise concerns. It is loosely defined in scope, giving authorities discretion to restrict a wide range of speech, and pursue aims which may not be considered “legitimate” according to international human rights standards. In other words, the reason behind the law is not clear, as this reason must not be discriminatory in itself and it must be a genuine or real reason. Examples of legitimate aims include the health, safety, and welfare of individuals. It also stipulates penalties between eight to twelve years in prison. It is potentially disproportionate in their severity and may result in a chilling effect on freedom of expression. In addition to that, the law is vague and does not clearly define terms such as public order, turbulence, and insecurity in its glossary or definitions section.
Article 11(d) of that Law defines as an act of terrorism to be anyone who “communicates information of which he has knowledge that is false, thereby endangering the safety of an aircraft in flight or on the ground”. The same article 11(w) also defines an act of terrorism as “disseminating information, which is known to be false, thereby endangering the safe navigation of a ship.” However, of particular controversy is article 20, which provides that “a Mozambican, foreigner or stateless person living or being in the Republic of Mozambique makes or reproduces publicly statements relating to terrorist acts which she/he knows to be false or exaggerated, with the intent to create public panic, disturbance, insecurity, and disorder shall be punished with imprisonment for a term of 2 to 8 years”.
- Norms and Standards: Broader impact of these laws on freedom of expression
This section analyses how the two new laws may (or not) respect the legal framework of press freedom and to what extent they are good (or not) for the country. Generally, some of the provisions presented in both laws can be inappropriate and may violate the Constitution of the Republic of Mozambique, specifically on freedom of expression and the access to information. Article 48 of the Constitution states that “All citizens have the right to freedom of expression, freedom of the press, as well as the right to information.”
Some articles may also violate international laws and standards. In the proposed Social Communications Law, the main criticism is the proposal for the creation of a Regulatory body that will be responsible for monitoring the activities of and deciding who can or cannot be a journalist in the country. In the proposal, there is also the threat of this same entity revoking the professional journalist card, whether for nationals or foreigners. This is in part an act that undermines journalists’ freedom of production, given that a Regulatory body linked to the executive will be able to decide on journalistic activity. In addition to that, there is a concern about restrictions of ownership of media companies by foreign nationals – there is a requirement to have a reduced quota for support coming from abroad.
Regarding the ‘Law on the Prevention, Suppression and Countering Terrorism’, article 8 undermines freedom of expression. It provides that “In public and private places of public access, measures must be adopted to prevent terrorist acts by installing means of security and electronic surveillance”. The distinctions between private and public are not clear since the law is very broad and vague in its definition. Moreover, it is not up to the citizen to know what is false or not if it is not clearly defined in the law. As stated by the General comment No. 34/Article 19/Freedoms of opinion and expression/Declaration, it is for the State party to demonstrate the legal basis for any restrictions imposed on freedom of expression. The State party has the obligation to provide details of the law and of actions that fall within the scope of the law.
Equally, article 9 states that “Telecommunications network operators and service providers shall adopt measures to control users in the context of the prevention, repression and combating terrorism.” It is not clear what the law means by ‘’measures to control users’’. This provision has the potential of violating the Law of Right to Information, which stipulates the legal procedures and limits to such access. In other words, the limitation of fundamental freedoms must be expressly explained when it affects the greater good or public security such as war or foreign military aggression. Through article 9 of the law, it is not clear to what extent telephone operators have this right. This is a violation that can also compromise the data protection and security of users, especially because Mozambique does not yet have a law or a Data Protection Agency.
Considering the provisions about disinformation in the online sphere, the Law on the Prevention, Suppression and Countering Terrorism and Proliferation of Weapons of Mass Destruction can also violate the international law and standards, specifically the International Covenant on Civil and Political Rights, the General Comment No. 34 of the UN Human Rights Committee, the 2017 Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda and the Declaration of Principles of Freedom of Expression and Access to Information in Africa (the Declaration). Regarding the Declaration, principle 37 on access to the internet states that:
(1) States shall facilitate the rights to freedom of expression and access to information online and the means necessary to exercise these rights;
(2) States shall recognise that universal, equitable, affordable, and meaningful access to the internet is necessary for the realization of freedom of expression, access to information and the exercise of other human rights.
In respect to the 2017 Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, “States may only impose restrictions on the right to freedom of expression in accordance with the test for such restrictions under international law, namely that they be provided for by law, serve one of the legitimate interests recognised under international law, and be necessary and proportionate to protect that interest.” It seems that this is not the case in Mozambique, as the laws to counter terrorism and violence is not clear about the limitations.
- Conclusion and Recommendations
This analysis has demonstrated that the approval of laws in times of conflict opens space for violations of fundamental rights such as freedom of expression and freedom of the press. The two laws discussed in this article are fundamental for Mozambique, and if well implemented, can have a positive impact. However, there is the need for broader consultation to ensure that the provisions of the law are in alignment with the Constitution and international laws and standards.
The following recommendations are suggested:
(1) the government must ensure that both laws do not infringe international law and standards, and the national Constitution; (2) the responsible entities such as Ministry of Science and Technology and Regulatory Authority should ensure that the laws are widely disseminated using inclusive strategies, and engage in comprehensive and meaningful public education on the law; (3) Civil society organisations and academia should collaborate to deconstruct the approved and proposed laws, to ensure that citizens are aware of the legal instruments; and (4) Parliament should amend both laws after promoting a wider and more participatory debate on the provisions of the law – eliminating provisions that do not respect freedom of expression.
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 Penal Code (2019) https://reformar.co.mz/documentos-diversos/lei-24-2019-lei-de-revisao-do-codigo-penal.pdf
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About the Author:
Dércio Tsandzana is a Mozambican researcher and political scientist. Since 2013, Tsandzana has been working on youth, Internet, social media, and political participation in Mozambique, including on-line activism for Global Voices International. Tsandzana undertook research work focusing on digital rights, and data privacy with Internews, Collaboration on International ICT Policy for East and Southern Africa (CIPESA), Paradigm Initiative (PIN), Association for Progressive Communications (APC) and African Declaration on Internet Rights and Freedoms. Since 2020, Tsandzana has been a permanent consultant at ALT Advisory (Johannesburg). His most recent article is entitled ‘’The political participation of youth in Mozambique’s 2019 general elections’’ (Journal of African Elections, 2022).
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