Mokone appeals sedition ruling
Tumelo Mouwane | Tuesday August 30, 2016 17:06
Mokone made an urgent application seeking the court to intervene following his arrest on September 8, 2014 after the Sunday Standard published a story alleging that President Ian Khama was involved in a car accident. Dick Bayford is representing Mokone.
Mokone challenged a warrant of his arrest issued by the Gaborone chief magistrate and wanted it to be set aside, as well as for the court to declare that the provisions of Sections 50 and 51 of the penal code are contrary to Section 12 of the constitution of Botswana.
He argued that the sections infringe on the right to freedom of expression. He was of the view that Botswana Police Service’s refusal to allow him access to his attorney whilst in police custody was an infringement on his rights to legal representation and access to the court.
Justice Jenniffer Dube of Lobatse High Court on Friday ruled that Mokone’s warrant of arrest was legally sought and further ruled in favour of the applicant that he was unlawfully denied right to a legal representation during his detention.
Dube was however of the view that Sections 50 and 51 of the penal code are consistent with the penal code.
“Despite that, the sections may be considered by others as unconstitutional, the sections are in my view, legal limitations to the said right so as to recognise and respect other persons’ rights as well as respect their dignity.”
The judge was of the view that what the applicant sought the court to do was to lobby other arms of government to amend some sections of the penal code to decriminalise sedition, something that he and other groups should be doing.
“In conclusion, it is my view that the applicant must part fail and part succeed. The warrant of arrest issued against the applicant in September 2014 was valid and lawful. The applicant was denied his right to legal representation by the third respondent during his detention between 8-9 September 2014.
“Sections 50 and 51 of the penal code are not inconsistent with the Constitution of Botswana,” Dube said.
Bayford said they are going to appeal the judgement on the basis that sedition laws have no place in the country as they are of a ‘colonial past’.
“We approached court seeking Sections 50 and 51 of the penal code to be declared unconstitutional, unfortunately the judge has declared the provisions in line with the constitution, of interest the judge has gone further to outline the history of sedition laws in Botswana by rightly observing that sedition laws and their effect are of colonial relic,” Bayford said.
Bayford said sedition laws were used in the past to ‘suppress subjects and individuals to their colonies’ hence they deserve to be declared unconstitutional.
“These laws were formed where colonial past used sedition laws to suppress subjects or individuals in the colonies.
The question is that as an individual country having attained independence in 1966, do we still really need sedition laws? Is it not time that the court could have taken advantage of this case and rose above all the odds to say that sedition laws are of a relic of the past therefore they have no place in this country? I can confirm that we are going to appeal the judgment,” he said.