Eswatini

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Eswatini does not currently have specific legislation to counter disinformation. However, there are other laws that include restrictions on certain forms of disinformation: the Coronavirus (COVID-19) Regulations, 2020, the Suppression of Terrorism Act, and the proposed Computer Crime and Cybercrime Bill.

These laws and proposals raise substantial concerns from a human rights perspective. They are ill-defined in their scope, meaning that authorities could interpret them as giving them power to restrict a wide range of speech; and they pursue aims which would not be considered “legitimate” according to international human rights standards. These laws also carry penalties which are potentially disproportionate in their severity, and may result in a chilling effect on freedom of expression.

We assess these laws individually in detail below and provide some limited data on the enforcement of these laws in practice.

N.B. The Computer and Cyber Crime Bill (2020) originally included a prohibition on the publication of “any statement or fake news through any medium, including social media with the intention to deceive any other person or group of persons” [Section 19]. However, this section was removed and disproportionate fines and jail terms adjusted before the bill was signed into law in March 2022, meaning that the Computer and Cyber Crime Act 2022 does not contain any restriction on fake news.”

N.B. Previously, eSwatini’s Coronavirus (COVID-19) Regulations 2020 criminalised the spread of false news about COVID-19. These Regulations have now lapsed and are no longer in force – yet we include two instances of their enforcement in practice in 2020 below.

General Speech Legislation

Suppression of Terrorism Act, 2008

Is there clarity over the precise scope of the law?

Potentially. Section 5(3)(b) makes it illegal to intentionally communicate information which is “a false alarm” or “causes a false alarm or unwarranted panic”to another person or an institution. Similarly, section 5(3)(e) criminalises the intentional publication or communication of false information about the existence of any danger, dangerous thing, explosive or harmful or hazardous substance. These provisions may be clear in some circumstances for example, stating that there is a bomb in a particular building when the person knows that this is not true. However, it may be difficult to determine what is considered a “false alarm”, “false information” or “unwarranted panic” in all circumstances. The scope of “danger, dangerous thing, explosive or harmful or hazardous substance” requires further clarification and is potentially overbroad.

Is speech or content restricted only where it is in pursuance of a legitimate aim?

This is unclear. Speech should only be restricted where some clear, objective public harm might be caused. The aims pursued by Section 5 appear to be aimed at protecting public order and safety. However, while restrictions in the pursuance of “public order” may be legitimate, it is unclear whether preventing “false alarm or unwarranted panic” will always fall within the scope of protecting “public order”. If the scope of these terms is the same or narrower than “public order”, then restrictions may be in the pursuance of a legitimate aim. If the scope is broader than “public order”, then it would not be in pursuance of a legitimate aim. It would also be illegitimate to restrict speech in pursuance of political aims.

Do any restrictions in the law account for instances where the individual reasonably believed the information to be true?

Yes. Section 5(3)(e) provides that the intentional publication of “false information” occurs when “that person does not believe in the existence of that thing or truthfulness of that publication”. Section 5(3)(b) further provides that the offence is only committed when there is no “lawful excuse”. It is possible that believing the information to be true (and therefore trying to protect people from harm) could be a lawful excuse. However, more information is needed to determine what is considered a lawful excuse by a court of law.

Are determinations of whether speech or content is disinformation made by an independent and impartial judicial authority?

Yes. This is a criminal offence and will be decided by a court of law.

Are any responses or sanctions proportionate?

Potentially. The penalty for violation of Section 5 is either a fine or imprisonment for a period not exceeding three years. If the maximum fines and prison sentences were imposed without taking into account the circumstances of the offence, then sanctions could be disproportionate. However, given the absence of information as to how these penalties will be imposed in practice, it is currently difficult to say.

Are intermediaries liable for third party content?

Yes. Section 5(4) provides that “Where a body corporate commits an offence under this Act, every director, officer or agent of the corporation who direct, authorised, assented to, acquiesced or participated in the commission of the offence is a party to and guilty of the offence and shall be liable, on conviction, to the punishment provided for whether or not the body corporate has been prosecuted”.

Law enforcement action

Arrest of Journalist Zweli Martin Dlamini, April 2020

In April 2020, authorities sought the arrest of Zweli Martin Dlamini, the editor of the privately owned news website Swaziland News, for spreading “unauthentic information” related to COVID-19. Police raided his home and interrogated his wife about his whereabouts. This action was taken in response to a news report posted on the website that questioned the king’s health during the pandemic. Dlamini had also been arrested on charges of sedition two months earlier, in relation to two articles he published accusing the king of misleading his citizens and promoting gender-based violence.

Does the action have a legal basis?

Yes. The warrant for Zweli Martin Dlamini’s arrest referred to suspected violation of Section 29(1) of the Coronavirus (COVID-19) Regulations, 2020, which prohibits the spreading of false information about the virus.

Is the action clearly directed to tackle an objectively legitimate aim?

No. Speech should only be restricted where some clear, objective public harm might be caused. While the Coronavirus (COVID-19) Regulations, 2020 are in general directed at protecting public health and safety, there is no evidence that Zweli Martin Dlamini’s publications posed any real threat to either, and he had already been targeted multiple times by law enforcement, subjected to torture and received death threats in relation to other articles he had published critical of the king and of the authorities. This seems to be a clear case of journalist harassment.

Is the action necessary and proportionate in all the circumstances?

No. In the absence of a legitimate aim, no action would be necessary or proportionate.

Arrests of journalists, April 2020