Media position paper on Media Practitioners Bill

| Thursday July 24, 2008 00:00

It is apt to indicate that the drafting of this Bill was preceded by a consultative process that sought the views of several stakeholders, culminating in an agreement on principles that should underpin any law aimed at regulating the mass media in Botswana. Some of the agreed principles include:

* To produce a more overarching media bill that covers all media;
* To produce an enabling bill consistent with international best  practice and the treaties Botswana has signed and ratified;
* To give the Press Council legal recognition;
* To promote self-regulation;
* To promote access to official information;
* To guarantee editorial independence;
* To address the Minister's role; and
* To address right of reply

Our understanding of the result of the consultation process was that the envisaged law would provide the framework, and media practitioners would regulate themselves, independent of any political interference, real or perceived, which is essential in the functioning of a democratic state. This would not have been a new dispensation for media practitioners, as other professions are self regulated within a statutory framework, such as health professionals who are regulated under the Nurse and Midwives Act [Cap 61:03] and Botswana Health Professions Act [61:02]. The councils of these professional bodies are endowed with the power to appoint all committees, including the professional conduct and ethics committee. Further, the Legal Practitioners Act [Cap 61:01], that establishes the Law Society run by a Council elected by legal practitioners. The Council is empowered by the Act to appoint Committees, including the Disciplinary Committee that receives complaints from consumers of legal services on professional misconduct.

The Media Practitioners Bill as it is, falls short of the principles of independency, political non-interference, promotion of self regulation as agreed during the consultative process preceeding the drafting of the law and it also infringes on the right to freedom of expression as entrenched in the Constitution of Botswana under section 12, in the manner that follows;

(a) the Minister has arrogated to herself  the power to appoint both the Complaints Committee and the Appeals Committee in terms of section 11 and 17 of the Media Practitioners Bill. This is a complete departure from how the legislation governing other professions has been crafted and further, to the principles agreed with the Minister to govern the formulation of the bill. 

The expectation was that the minister would have drawn insight from existing Acts such as the Legal Practitioners Act and the Botswana Health Professions Act, and already existing structures regulating a section of the media in Botswana. The appointment of the National Broadcasting Board, which regulates the broadcast media is done without the direct involvement of the Minister in that the identification of persons to be appointed to the Board is done by an independent Committee in a democratic and transparent manner.

The Minister's direct involvement in the appointment of committees of the envisaged Press Council in the Media Practitioners Bill raises serious doubts on the issue of their independence. To appoint the committees without the involvement or representation of media practitioners, the possibility of abuse by the Minister is highly probable such that the committees would exist under the whims and will of the Minister.

(b) there is an apparent contradiction in the provisions of the Media Practitioners Bill, Section 4 and 34 & 39. Section 4 pays lip service to the principles that the Council shall operate without any political or other bias or interference and shall be wholly independent and separate from the government, any political party or any other body. Section 34 & 39 empowers the minister (a political appointee) to dissolve the executive committee of a member driven organisation.

(c) The Bill prescribes registration and accreditation of media practitioners. Those not registered cannot report on or cover any event or occurrence in Botswana; this is in terms of section 6(1). A media practitioner has been defined, under section 2, to mean a person engaged in the writing, editing or transmitting news and information to the public. The definition is too broad and includes anybody who may write to comment on an incident or a news piece. The violation of the Bill is visited with a sanction of a fine not exceeding P 5000 or to imprisonment for a term not exceeding three (3) years or to both. This clearly goes against the spirit of Vision 2016 of involving citizens in the dissemination of information. It further kills the fluidity of journalism and impedes free flow of information, making the provision contrary to the constitution, on freedom of expression. The provision may also be subjected to abuse as this can be used to limit dissent or alternative views. For people to make political choices they must have access to information and to different viewpoints. In a democracy, the right to express grievances and to propagate or criticise policies enables people to contribute to peaceful progress and change in their society.

The registration of journalists is unnecessary if the overriding interest is to ensure compliance to a professional conduct and ethics. In terms of section 7(1) the membership of the council consists of publishers both public and private. The journalist are mere employees of the publishers and it suffices that the publishers are members as they are the duty bearers when it comes to enforcement of professional and ethical standards and responsibility for liability. The requirement of registration of journalists is not consistent with international best practice. It has been held by esteemed international bodies that enforce major human rights treaties that the licensing of journalists is illegal because it denies any person access to the full use of the news media as a means of expressing themselves, a right guaranteed even in our own Constitution. It must be appreciated that the practice of journalism is different from other regulated professions such as the legal profession.

In the final analysis, it is our position that: 
* the Press can exist as it has, without this legislation, or that the current existing self regulation process under the Botswana Press Council can be given a statutory basis. 
* other professionals such as legal practitioners and health professionals have been given complete sphere of professional freedom, within their statutes, without a minister's interference and the same should apply to media practitioners.

* That the registration and accreditation of media professionals is unacceptable, it constitutes a contravention of freedom of expression for the citizens of Botswana and media practitioners. 
* That the criminalization of media work constitutes a chilling effect on press freedom and constitutes censorship. 
* That the minister by purporting to establish Botswana Press Council through an act of parliament when it already exists, not through the agreed terms, implicitly constitute a statutory deregulation of a voluntary constituted body, and this violates, the right to freedom of association and assembly, as established by section 13 of the Constitution of Botswana. 
* That the apparent object of the Bill is to control the media practitioner s, which is unwarranted, not justifiable under the limitations of the constitution, not necessary in a democratic society and not anchored on anything. 
* That section 10 (2) on the right to reply is too prescriptive and interferes with editorial freedom. 
* That the protection of journalist sources, access to public information and editorial independence is not guaranteed by the Bill. 
* That the treatment and sanctions to be imposed on members should be left within the sphere of the Executive Committee. 
* That the minister must adhere to the principles agreed to at the inception of the consultation process.