The notice presented to the Registrar and Master of the High Court last Friday states the Press Council of Botswana (PCB) as the first among the 32 applicants and the Attorney General as the respondent. The applicants consist of media houses, trade unions and individuals. The case has not yet been allocated a judge.
Applicants argue that the definition of media practitioner in section 2 of the Act is overboard and violates section 12 of the Constitution to the extent that it encompasses non-members of the media. "In order to remedy this defect the words 'a person engaged in writing, editing or transmitting of news and information to the public, and includes' should be deleted from the definition". They further argue that some sections of the Act are inconsistent with the Constitution - such sections as Section 6 (1) that requires the registration and accreditation of media practitioners; Section 11(1) and 15(1) that provides for the minister to appoint members of the Complaints and Appeals Committee.
The applicants also contend that Section 22(2) of the Act is unconstitutional in providing for the members of the Complaints and Appeals Committees to be remunerated by government. Furthermore, they are against Section 10, which obliges publications to publish replies from persons about whom the publications have reported.
The PCB is a trust registered legally in 2002 to deal with complaints from members of the public arising from media reports.
In its bid to fight the media, the ruling party came up with its own press council through the controversial Bill that was passed into law amid calls by stakeholders for a better document that does not conflict with the Constitution. The Law Society of Botswana (LSB) that was listed as part of the implementation team has since stayed away from the Act. When the law was enacted it was under the ministry of Communications, Science and Technology, which was dissolved late last year to pave way for the Ministry of Transport and Communications.
The case comes a few weeks after government lost another constitutional matter in which it was trying to de-recognise trade unions. The government had wanted the unions to disband and re-apply to the Director of Public Service Management (DPSM) for recognition, prompting the four major trade unions - Botswana Landboards and Local Authorities Workers Union (BLLAWU), Botswana Public Employees Union (BOPEU), Manual Workers Union (MWU) and Botswana Teachers Union (BTU). The unions argued that their right to unionise is enshrined in the Constitution and non-negotiable.
Meanwhile, the United Congregational Church of Southern Africa (UCCSA) stated in support of the litigation that the Act is a step backwards in Botswana's democratic gains over the past 44 years.
"We believe that the Act goes against the spirit of freedom of expression as enshrined in the Constitution of Botswana. Its sole intention is to control and censure the issuance and circulation of news in country. We reject any government attempts at regulating any group of practitioners as this Act intends to do. We could only support self-regulation by a professional body," says the correspondence signed by UCCSA general secretary Reverend Dr Prince Dibeela, dated April 22, 2010.
The Botswana Federation of Public Sector Unions (BOFEPUSU) said in a letter dated 27th July 2010 that it rejects the MPA, as it requires their members to be registered before they can write articles in newspapers. "This is a direct interference to freedom of expression as articulated in Section 12 of the Constitution of Botswana. Compulsory membership of state media council is also a violation of section 13 of the Constitution, which allows freedom of association. Punitive aspects of the MPA would usurp the role of the courts," BOFEPUSU says. The organisation says accreditation required by the Act is vague.
The Botswana Secondary School Teachers Union (BOSETU) says the Act will directly affect them as it (the organisation) always disseminates information to its general membership and general public through radio and newspapers. "This means that our officers and members who disseminate information to the public will have to be registered. We would like to freely express ourselves without having to do some registration," BOSETU said.
The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) said the MPA is a threat to freedom of expression and other civil liberties such as the right to access information. Access to information, BONELSA said, is already severely limited by the fact that Botswana does not have an Access to Information Act, which guarantees the accessibility of information generated from government and its agencies. "Where individuals are privy to information and are free to circulate it, the Media Practitioners Act will curtail their ability to write and/ or disseminate this information," BONELA said.
Other organisations that support the litigation are the Publishers Association of Botswana, and the National Amalgamated Local and Central Government, and Parastatal Workers Union (NAGLPAWU).