Defamation law - Towards politics of substance

Kgosietsile Ngakaagae | Friday November 23, 2018 12:50

In the heat of contest and campaign fatigue, the end justifies the means. When that happens, the aggrieved can only look to the law for redress. I have hence, decided to have a case discussion with you on defamation.  What do we learn from the case of Makgalemele Vs Ya Rona FM 2012 1 BLR 553 HC?

Philip Makgalemele is a former president of the Botswana Football Association (BFA), a Member of Parliament and businessman. His troubles began the day he headed a delegation of the Botswana National Under- 23 team to China. It was in the run-up to parliamentary elections of which he was a candidate.

The defendant, a Radio Station owner, published words accusing him of improper conduct, amongst others, that he had misappropriated prize money won by the victorious national side he had headed to the Asian country and of attempts at match-fixing which accusations the court, found to be untrue.

The words were not uttered at a political rally where plenty of defamation happens and I do not pretend that the station was politically motivated. It really makes no difference. Defamation is defamation everywhere.

The media are an integral part of the electoral process. They play one of the most critical roles in bridging the distance between the candidates, parties and electorate. They are indispensable to the democratic process. They command social and political dialogue and can make or break a good political chance.

Makgalemele alleged that the accusations were defamatory of him. He maintained that they were intended to portray him as a dishonest and corrupt person who had abused his office as BFA President, to serve personal interests.

He maintained that they were made maliciously and with intent to damage his good name and standing in society and that he had been injured in his reputation and good name.

He claimed damages in the sum of P1.5 million. An enviable curriculum vitae spoke to the fact Makgalemele was a prominent public figure.

The radio station did not deny publication of the statements.  It maintained, however, that the utterances were not defamatory and were not made with intent to cause him harm.

The radio station maintained that the statements were “true and in the public interest; constituted fair comment”, were not published with intention to injure and were reasonable. They maintained that prior to airing the programme, the plaintiff had declined the opportunity to give his side on the radio programme.

In the law of defamation, a statement is defamatory if it “is one which injures the person to whom it refers by lowering him in the estimation of reasonable persons of ordinary intelligence or right-thinking members of the public generally ...” This means that foolish, petty and illogical conclusions are excluded.

The court must ask itself how a reasonable person would have understood the allegedly defamatory statement. The question is whether, “objectively regarded, the meaning of the words is such that they can be said to lower the esteem in which the person referred to is held amongst people generally.”

Responsibility is placed upon commentators and publishers, including radio callers to go through their words with a fine comb. One will not be spared for lack of diligence.

There is a legal presumption that publication of defamatory words was both unlawful and intentional. As such a person who, it has been established, made a defamatory statement starts with their back against the wall.

They must prove lack of intention and lawfulness. They can show for example that the publication is true and in the public benefit; that it constituted fair comment, was made on a privileged occasion or that it was reasonably made.

The defences are based on the recognition of the freedom of expression and on the “role the media plays in dissemination of information to the general public in a liberal democracy in which freedom of expression is enshrined in the Constitution” and the need to protect such. 

The law of defamation is only intended to ensure that we don’t abuse our freedom to speak freely, not to curtail same.

I hope you have a clearer view of the principles of the law of defamation and will be careful going into the 2019 electoral year. I use this discussion on defamation law to urge for a cleaner campaign in the run-up to the next elections. We are at a time in our nation’s life where there is a need for our politics to be issue-based. It is important for politicians, the media and stakeholders in the electoral process, to focus on the pressing issues of the moment and on the future.

We recently lost tens of precious lives to diarrhoea. Economic diversification, unemployment, health care, child welfare, gender violence, rural development, wasteful spending, corruption, youth crime, amongst others, must take centre stage in the political eloquence of our parties and candidates. 

Frankly, I don’t give a hoot which party candidate suffers from gonorrhoea. I didn’t transmit it and surely don’t sleep with them. Idiots who trade in political gibberish must be rejected emphatically.