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CBE JUDGMENT EMASCULATES JOURNOS!

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Wednesday April 10, 2019, will go down in the annals of journalism history as a dark day for the profession and journalists – not to mention the Bill of Rights enshrined in the Constitution - in this the Kingdom of Eswatini in the wake of a court judgment that curtailed the press from effectively exercising its role as the Fourth Estate to make those charged with public office accountable to the public.

This was the judgment by High Court Judge Nkosinathi Maseko, stopping the Times SUNDAY from publishing information contained in a so-called confidential report from the Central Bank of Eswatini in relation to the licensing of Farmers Bank. The net effect of which is the creation of a refuge for public figures and executives to hide whatever wrongdoing they are engaged in under the cloak of confidentiality. The judgment has somewhat resuscitated the undeclared cold war that existed for a period between the press and Judiciary, which was sparked when the courts punished the press with economically crippling punitive damages in defamation lawsuits that threatened the very survival of media houses.

The simplicity of it all is that the press, that is the real press and not propaganda instruments, praise singers, grovellers and sycophants, survives not in perennially singing the praises and false accomplishments of those in power but by incisive investigative articles that unravel the dirt, the rot, the corruption and the abuse of authority by those charged with public office. Integral in all this are the whistle-blowers who invariably are strategically positioned to access vital secretive information not easily accessible to the public. It follows that which is kept secret, unless it poses a threat to the security of the State, is often self-serving, immoral, criminal and not in the best interests of the people.

As I see it, whistle-blowers are a vital cog in the fight against corruption and if and when they are silenced, the scourge is given a free reign. Now it seems the Judiciary and the courts not only condone this but are nurturing same to flourish to the detriment of the nation. As we know ,such judgments as the one in question tends to put the fear of God into journalists and scared journalists are bad journalists, as observed by Swedish Supreme Court Judge Goran Lambertz during a debate in Cape Town on Access to Information and the Protection of State Information Bill (SA). Similarly, the judgment will silence whistle-blowers.

Actions

And we all know that once there is a cessation on examining those in power and authority and calling on them to account for their actions or lack thereof means the ushering of authoritarianism and dictatorship into power. It is the press - a free press that is guaranteed by the national Constitution - that is in the business of ensuring that public officials are answerable and accountable to the people. In this respect, the press must and ought to enjoy a measure of privilege - even if this is not codified - to ensure newspapers and other media can publish confidential information. We already know that this country’s political system strives on depriving the citizenry of information and this judgment is in sync with that unpronounced state stratagem hence information is power. Under the circumstances, one would have expected the court to err on the side of the press to send a clear message and warning that wrongdoing couched under the cloak of confidential information/documentation would no longer be a refuge for anyone serving in public office. It follows, therefore, that a public interest defence in exposing the shenanigans in the licensing of Farmers Bank would have been sufficient to allow the journalist to write the story and the newspaper to publish same.

Judgement

As it were, the judgment somewhat strengthens the perception, indeed the real suspicion, that something untoward happened when Farmers Bank was issued with what is reported to be the top banking licence none of the other commercial banks possess. In the circumstances it is fair and justifiable to conclude that Farmers Bank did not tick all the boxes when due diligence was performed in the licencing processes. If the CBE policy to be secretive in the bank licensing processes is derived from any legislation then that law must be invalid for being inconsistent with the letter and spirit of the Constitution, specifically the Bill of Rights as it pertains to information. It cannot be that an administrative decision can overwhelmingly prevail on a constitutional dictate and for the courts to endorse same instead of declaring same as invalid to the extent of its inconsistency with the Constitution. Former Chief Justice (SA) Arthur Chaskalson observed that if policy is not consistent with the Constitution, it is the duty of the courts to declare it invalid.

Article 19 of the Universal Declaration of Human Rights affirms that ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. Journalists and the Judiciary must be complementary in fighting the scourge of crime and corruption and not be on opposite ends. And in a country without any opposition and where the rule of law is subordinate to the whims and machinations of the powers that be, the press is shouldering the onerous responsibility of protecting the citizenry from corrupt and excesses of those charged with public office. Invariably such corruption and excesses are clothed as confidential and privileged information. Is this what the court is promoting?

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