Draconian laws shoot the messenger

Mmegi Editor | Wednesday September 10, 2014 12:37

Without going into the merits of the case against the Sunday Standard editor, the charge he is facing is a reminder how easily the more draconian sections of the Penal Code may be used or misused. The Penal Code – or the law governing what crimes are and their punishment – is a malleable piece of legislation that countless authorities across the world have used for one purpose or the other – rightly or wrongly – outside the explicit law.

In Africa, most Anglophone countries inherited their penal codes unchanged from colonial powers who previously used them to disenfranchise, intimidate and imprison the indigenous majorities.

Despite the wave of liberty in Africa from the 1960s, many post-colonial governments have kept their inherited penal codes unchanged and have, in some instances, used them to suppress expression or any form of alternative voices.

It will be remembered that during the hullaballoo about the alleged hit-list against the opposition, the Police Commissioner issued a statement threatening to invoke a section of the penal code which makes it a criminal offence to “publish any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace”. The sections of the Penal Code dealing with sedition also give the courts the right to seize printing presses, suspend publications for up to a year and even arrest street vendors. The same Code, it must be remembered, also includes punishments for defamations of foreign princes and piracy on the high seas!

The trouble with some sections of the Penal Code, such as those dealing with “alarming statement” or “seditious publications” is the relatively light burden the State is required to carry in order to prove an accused person’s guilt. Only one of a broad range of infractions needs to have been triggered for the accused to find himself in court, facing a hefty penalty. The sections effectively require the accused to climb high mountains to prove his innocence or accept his guilt, which flies in the face of our “innocent till proven guilty,” legal tenet.  In fact, certain legal quarters view these sections of the Penal Code as incongruent with sections of our Constitution guaranteeing freedom of expression. While as law-abiding citizens it is critical that we respect our laws, these same laws guarantee our right to interrogate them and recommend their review. And we do. We strongly recommend that the post-October 24 parliament review the Penal Code in line with the progressive principles we collectively espouse and promote as Batswana.

                                                                  Today’s thought

“A free press can, of course, be good or bad, but, most certainly without freedom, the press will never be anything but bad.”

 

                                                                 - Albert Camus