Laws criminalising journalism in Botswana
Oarabile Mosikare | Friday September 12, 2014 15:56
From the discussions, it was clear that situation of freedom of expression in Southern African are similar. This is because most of the Southern African countries are former British colonies and when they gained independence, they adopted their respective constitutions from their former colonial masters.
Participants learnt that despite Botswana’s strong democratic credentials, there is little doubt that the media environment in Botswana is not in accordance with international standards for democratic media regulation. The Botswana participants found out that there is limitation to freedom of expression provisions in the Constitution of Botswana.
For instance, Section 12 (2) sets out the basis upon which the right to freedom of expression detailed in Section (1) may be limited. The essence of these provisions is that a law which limits the right to freedom of expression will not violate section 12 (1) of the Constitution. The participants also found out that the restriction on public officers by secrecy obligation is a limitation to freedom of expression.
In fact, whistleblowers in the public service to bring illegal conduct, including corruption, to the attention of the media in the public interest is a critical part of a functioning democracy. There are also statutes like the Media Practitioners Act (MPA), Act 29 of 2008 which also contribute to the limitation of the freedom of expression. Section 35 of the MPA, the minister may dissolve the executive committee if it fails to submit an annual report and, under section 36 of the MPA, the minister may appoint an interim executive committee until such time as the media council elects a replacement executive committee.
The Botswana Communication and Regulatory Authority Act (BOCRA) of 2013, Section 33 limits broadcasting diversity and the act does not allow community broadcasting. Section 54 of the Criminal Procedure and Evidence Act of 1938 allows a judicial officer presiding in any criminal proceedings to issue an order directing a police officer to take possession of any book, document or thing which is required in evidence in the proceedings. Section 65 allows the public prosecutor/magistrate to require the clerk of the court to subpoena to attend a preparatory examination to give evidence or to produce any book or document.
Section 13 (1) of the National Security Act (NSA) of 1986 provides that where the Director of Public Prosecutions is satisfied that there are reasonable grounds for suspecting that an offence under the NSA has been or is about to be committed and that a particular person is able to furnish information about the matter, he or she may require a named police officer, in writing, to compel that person to give such information to the police officer.
Section 22 of the Cybercrime and Computer Related Crimes Act of 2007 empowers a police officer or any person authorized by the Commissioner of Police or by Directorate on Corruption and Economic Crime (DCEC) to apply in writing to a judicial officer for an order compelling, among other things, a person to submit specified data in that person’s possession, which is stored on a computer or computer system.
Another statute that limits freedom of expression is the National Assembly (powers and Privileges) Act. It states that words of a Member of Parliament ruled out of order by the Speaker shall not be published in any manner. Section 47 (1) of the Penal Code of 1964 says if the President believes that a publication is contrary to the public interest including being in the interests of defence, public safety and public order, he may, in his absolute discretion, declare it to be a prohibited publication.
The Penal Code Section 51 (C) provides, among other things, that any person who prints, publishes, sells or distributes a seditious publication is guilty of an offence and is liable to imprisonment for up to three years.
“Section 59 (1) provides, among other things, that any person who publishes any false statement, rumour or report that is likely to cause fear and alarm to the public, or to disturb the public peace, is guilty of an office.” Section 91 deals with Insults to the Presidents. “It is an offence to publish any writing with intent to insult, bring into contempt, ridicule, the arms or ensigns armorial, the national flag, the standard of the President or the national anthem of Botswana.”
There is another section that talks about defamation of foreign princes. Under Section 60 of the Penal Code it is an offence to publish anything tending to degrade, revile, expose to hatred or contempt any foreign prince, potentate, ambassador or other foreign dignity, with intent to disturb the peace and friendship between Botswana and that person’s country.
There is also criminal defamation section 192 which is the unlawful publication by print/writing of any matter likely to injure the reputation of any person by exposing him to hatred, contempt/ridicule, or likely to damage any person in his profession/trade by an injury to his reputation with the intent to defame that person.