Penal Code 59 A Trap Still Waiting To Be Sprung

Over the last few weeks of high drama, I have regularly reflected on the appalling saga of Caitlin Davies, Editor of the Okavango Observer in Maun. Most will be unaware that there ever was such a saga.

It is now, long ago. So, allow me to recap by cobbling together bits from the internet. In her first issue on September 29, 1995, Caitlin, having first asked a reporter to get the reaction of the police, ran a front-page report about a gang of youths terrorising Maun.

Because the local station commander had been unable either to confirm or deny the report, the published story had to be sprinkled with the occasional safety-first word, ‘allegedly. On January 19, 1996, however, three months after her story had appeared, a CID officer arrested Caitlin charging her with publishing “a false report which was likely to cause fear and alarm to the public” - contrary to Section 59 of the Penal Code. Nothing then happened despite six police appearances, until December 1997, when facing a two-year prison sentence, her trial was set for May 1998. Then without prior warning the case was dramatically dropped - the Attorney General implicity conceding that there never had been any evidence against her. So why was she charged? Mmegi, suggested at the time that it was straight forward victimisation because everyone in Maun knew that a gang of boys terrorised the village. The real problem, some speculated, was the series of articles on the government’s removal of indigenous Bushmen from the Kalahari, which she published in the Advertiser in those three subsequent months. If such speculation is correct, and if there was never justification for prosecution. the assumption has to be that anyone involved with newspapers can be charged under Section 59 although for an entirely different ‘offence’. Because the Caitlin Davies saga demonstrated how Section 59 can be ruthlessly deployed to harass but with no intention to take to court and convict, I suggest that everyone should be aware that this devilish trap is still there, waiting to be sprung. Most concerned should be the owners of every newspaper, newspaper editors, news reporters, columnists and cartoonists although the latter is the most difficult to charge although being able to register hammer blows far beyond the capability of mere scribes. It may not happen. It probably won’t happen but as Caitlin Davies showed, it could happen.

It cannot be otherwise because almost any report can be interpreted as being liable to cause fear and alarm to the public. Section 59, headed Alarming Publications (!) states that (1) Any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of an offence. And (2) It shall be a defence to a charge under section (1) if the accused proves that, prior to publication, he took such measures to verify the accuracy of such statement, rumour or report as to lead him reasonably to believe that it was true. These clauses could easily be invoked in respect of reports on climate change, drugs, gender violence, public health, the state of the roads, corruption in the public service, pollution of water supplies, poor schools – you name it. Take two recent newspaper headlines at random ‘Youth unemployment threatens peace in Botswana’ and ‘BDP at War’ with both causing, and rightfully so, a degree of alarm to the public – but would this be all the public, a small part of it or just a particular section? Tricky. Consider too the extraordinary offence of publishing false rumours or of failing to verify the element of truth in a rumour. Who could provide this service? The police? And what about news reports which the government wishes to suppress? In past years, General Merafhe was enraged by reports in The Guardian of the split in the BDP and of the Big Five and threatened legal action. This could have been an opportunity for the Attorney General to invoke Section 59? For some reason, he didn’t. This small incident did though show how everything could be turned on its head. The Guardian was right, but still could have been prosecuted. General Merafhe was quite wrong but was never in danger of prosecution. Similarly, the youth gang could have caused total havoc in Maun but if the police were unable/unwilling to confirm that such a problem existed, there could be no public reports about it.


Take deliberately untruthful government spin. The government spin doctor can never be found guilty of misleading the public, but reporting his statements knowing or suspecting that they were wholly untrue could prove fatal to any newspaper or newssheet including, ironically, the Daily News.

Were the government to invoke Section 59 today, freedom of expression would be dead and buried. It couldn’t exist. Under section 59 it can charge almost anyone involved with the commercial press, harass them for two years and then, as with Caitlin, declare that there was never evidence to justify the charge made against them. This is a wicked form of legalised torture which has been allowed to exist for far too long. All threats to freedom of expression need to be resisted and removed.

 

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