The interpretation of this provision of the Constitution in manner that embraces media freedom is in accordance with what courts have said is a generous and purposive interpretation aimed at giving full effect to rights guaranteed in the Constitution. The Court of Appeal (CoA) has held that, in interpreting the provisions of the Constitution, especially with regard to fundamental rights, courts breathe life into the Constitution, having regard to its liberal democratic values and, where necessary, the international human rights treaties to which Botswana has subscribed. The approach can be used to give context and understanding to what the guarantee of media freedom under the Constitution entails given the paucity of local authorities on the issue in Botswana. The guarantee of media freedom under the Constitution covers both the substance of the communication and form that one chooses to express themselves. In this regard, it has been said the guarantee covers both content that is favourably received and that which shocks or offends the majority or a section of the public. The guarantee of the right imposes the negative obligation on the State not to unduly interfere with the right, and a positive duty to ensure the full enjoyment of the right. The latter is a relatively new development under international human rights law, which Botswana should embrace in order to give full effect to the enjoyment of media freedom. For example, the promotion and sustaining media diversity and enacting laws that ensure that journalists operate in safe and secure environments. Other important developments on the ambit of media freedom include: i) That the safety of journalists and other media practitioners as an aspect of media freedom. This requires the State to prevent attacks on journalists, arbitrary arrests and detention; intimidation, threats and unlawful surveillance by the state and non-State actors. ii) Protection of journalistic sources and other materials held for journalistic purposes.
There is a growing trend in the country where law enforcement authorities are easily granted interception warrants to monitor communications of journalists and confiscation of journalists’ electronic communications gadgets. One wonders whether judicial officers who issue these warrants pay enough attention to issues of protection of sources.
