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Resisting Repression: Legislative and Political Obstacles to Civic Space in
Southern and Eastern Africa
Civil Society Watch (CSW), CIVICUS
March 2004

Written by: Barney Afako, Justice Resources, Kampala, Uganda, barnyeafako@yahoo.co.uk

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CIVICUS therefore commissioned this study to focus on the legislative frameworks and country practices relating to freedom of association, expression and assembly in four African countries; Zimbabwe, Kenya, Uganda, and South Africa. The study focuses on the grave and worsening situation in Zimbabwe, as part of an advocacy intervention under the Civil Society Watch Programme. This programme aims to provide support to civil society in various countries of the world and works to ensure that an enabling legal and political climate obtains for civil society to flourish.

Rather than set out all the various laws in the countries under study, the report has highlighted some of the main legislation impinging on civil society activities. In all cases , an attempt has been made to examine the wider, especially, political context in which the laws have been made or are applied. The study has tried to avoid the impression of creating a league table of good governance, as that approach would not be helpful to addressing the underlying issues. It recognises that civil society faces different challenges in each country examine, and needs in concert with others, to address these within their context.

The research for this report was carried out over a nine month period with visits to Zimbabwe and South Africa. Special recognition and gratitude goes to Tawanda Hondora who in addition to discussing the issues contributed an invaluable monograph on which much of the analysis on Zimbabwean legislation was drawn. From Kenya, Churchill Soba's research laid the foundation for the examination of developments in that country. Many others, who in the current environment in Zimbabwe must remain unnamed, were willing to discuss candidly the situation in that country. In the interests of consistency we have not named the interviewees from other countries; they know themselves and their contributions were invaluable for obtaining a better understanding of the varied situations under study. Without the support and patience of CIVICUS staff in Johannesburg the research would not have been able to get off the ground or come to any fruition. This is a commissioned study, and the views expressed herein do not necessarily represent the position of CIVICUS, and the errors are certainly that of the author.

This report is humbly dedicated to the longsuffering people of Zimbabwe in the hope that their freedom will not be long in coming.

Introduction
Across Africa during the latter part of the twentieth century, an emergent civil society began to find its voice and to define its role in the complex relationship between the governments and the governed of the continent. For Africa, in dependence had come at different stages, and against contrasting political backgrounds, but always with a sense of optimism for new political beginnings characterised by respect and open government. The experience however has been mixed as the new leaderships did not always break with the political intolerance of the colonial period and in some cases developed new and repressive authoritarianisms. Surveying the landscape today, the continent on the one hand presents a disturbing picture of repression and legislative restrictions, but against many odds, civil society has taken root in various countries, refusing to be forced off the political and social agenda. African people are beginning to insist that only those whom they freely elect should govern them. They are also demanding that those in power should respect their right to organise and express themselves as members of their communities. Civil Society Organisations (CSOs) are forging new solidarities with counterparts across the continent and globally, in support for the quest for social justice and the fight against poverty.

Today, various organisations, pressure groups and social movements around Africa are coming together, as civil society, to remind governments of their obligations to maintain good governance under just laws. In this process, civil society has sometimes discovered how hostile governments can be to the demand for these basic entitlements. But there are also signs on the continent that governments are beginning to be responsive to their obligations those whom they govern; a number have recognized the contribution that an emergent and vibrant civil society can make to policy, and have sought to engage and appropriate this new-found energy and confidence.

Whilst there has been a welcome outbreak of democratic practices around the world, the picture remains mixed, with illiberal governance and failed states still blighting the political landscape of Africa. For nationals of such states, basic civil liberties are still a far off aspiration. A vibrant civil society is a precondition for a thriving democracy, which must be built on sound values, reflected in legislation and adherence to commonly accepted principles enshrined in international law. Where there is a vital civil society, democracy is likely to flourish, but where the rights to expression, assembly and association are circumscribed, civil society will not thrive and political governance will thereby suffer. Whilst internal mechanisms and interventions can produce necessary democratic and human rights changes in a country, the most effective interventions are the result of solidarity action encompassing regional and international civil society and other states and international bodies.

This study sets out to consider and analyse the legislative frameworks and specific laws under which civil society operates in Zimbabwe, South Africa, Uganda and Kenya: two countries each, from Southern and Eastern Africa presenting marked differences but also similarities in the challenges and opportunities for civil society in those regions. The main focus of the study is on Zimbabwe, where the political and economic situation has seemed to spiral out of control. There the government has introduced and applied four main pieces of legislation: the Public Order and Security Act (POSA), the Access to Information Protection or Privacy Act (AIPPA), the Broadcasting Services Act (BSA), and the Private Voluntary Organisations Act (PVOA) to target its dissenters, from the political opposition, the Movement for Democratic Change (MDC), to civil society organisations which have tried to assert their right to exist and to organise freely. The focus on Zimbabwe in the report acknowledges the gravity and severity of the situation in that country, where the government has continued to act in disregard of international standards and in its own constitutional framework. The crisis in Zimbabwe is undeniably complex and encompasses not just political issues but also economic, social and humanitarian dimensions: all of these are relevant and merit study.

The Role of International Human Rights Law
Human rights are not the creation of states. All the countries under consideration subscribe to the key international and African legal instruments enshrining the fundamental rights of expression, association and assembly, under scrutiny in this study. The International Covenant on Civil and Political Rights (ICCPR) under Articles 19, 21 and 22; the African Charter of Human and People's Rights under Articles 9, 10 and 11 have all been ratified. These principles are set out and elaborated upon in the African Commission's Declaration of Principles on Freedom of Expression in Africa as adopted by the 32nd Session of the African Commission held in Banjul in October 2002 (Banjul Principles). Further underlining treaty commitments, are the declarations which elaborate further on the Freedom of Expression. The Windhoek Declaration on Promoting an Independent and Pluralistic African Press (1991) which calls for national media and labour laws to give an appropriate role to representative associations to better defend press freedom.¹ After 10 years the Windhoek Charter on Broadcasting in Africa was established; it emphasises the need to create enabling democratic and localised environments for broadcasting in African countries based on regard to international human rights law and accepted values of diversity and free flow of ideas.²

Although none of the states under consideration in this study incorporates treaty obligations directly into national law, each instead requires national legislation to incorporate treaty provisions. Ratification opens the states to scrutiny under the monitoring and states reporting mechanisms created by such treaties. Thus each state party should normally submit periodic reports, of the status of these rights to the relevant commissions. By making formal commitments, states are expected to conduct national affairs in conformity with the objects of the treaty, as a matter of good faith.

As seen in the Zimbabwean situation, states can adopt an insular mentality and ignore their legal obligations and become impervious to outside criticism. At that stage invoking international standards alone, without other political measures of dissuasion is unlikely to yield the desired changes in its practices. However, it is important, not only for the needs of the immediate situation being addressed but also in order to vindicate international law and standards, to bring challenges or complaints to international fora especially the mechanisms under the African Charter, as civil society in Zimbabwe has done.

Laws guaranteeing the freedoms of association, expression and assembly find expression in the national constitutions of the countries under consideration, even in Zimbabwe. Any analysis of specific laws needs to acknowledge that laws emerge from specific national political and social histories and developments, and enforcement of such legislation is as much, perhaps even more, a matter of politics that of ordinary policing. It is also recognised that the ambit of state repression in Zimbabwe is in fact wider than the mere enforcement of these laws, and involves the consistent use of extra-legal methods of suppression of dissent. All indications are that the government will continue to use legislation to curb the activities of perceived opponents, especially civil society.

Beyond describing the unfolding crisis in Zimbabwe, the object of the study is to reflect of the avenues and dynamics for civil society to influence governance issues across Africa. Much effort has justifiably been expended on Zimbabwe for the last five years in particular and it is clearly vital that civil society should reflect on the prospects for change there and how best to influence it. In the other countries under study too, laws impinge on civil society, though perhaps in less overtly repressive ways in the manner of their application. Nevertheless, the protection of space for civil society to function is equally important and vigilance is the only safeguard against future infringements.

For further information on CIVICUS, see http://www.civicus.org.

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