The legal landscape:Examination of legal provisions relating to freedom of the press

University of Botswana Professor, Balule PIC - MORERI SEJAKGOMO
University of Botswana Professor, Balule PIC - MORERI SEJAKGOMO

OPINION: Protection of Media Freedom Press or media freedom is guaranteed under Section 12 (1) of the Constitution of Botswana. Although media or press freedom is not expressly mentioned in the provision, courts of law have now authoritatively held that media freedom is implicitly guaranteed and that it applies to both newspapers and broadcasters.

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.

2. Responsible journalism and media self-regulation The protection of the freedom of expression of journalists, including editors, is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. This point is aptly articulated by the South African National Editors’ Forum (SANEF) in the following terms: “For all of us in the media, journalistic integrity is paramount as it sits at the heart of the media's contribution to building our democracy. Journalists are crusaders for accountability. It therefore follows that they, too, should be subject to the same accountability they demand of those who exercise power in society.” The media should serve the public interest and be accountable to the public whom they serve. Media accountability is promoted through self-regulation by the media industry itself. Botswana currently has in place structures that recognise media self-regulation. The Press Council of Botswana was established under a Notarial Deed of Trust as a voluntary self-regulatory body on August 12, 2004. While the Press Council initially received good response and support from the media and public, it now exists only in name. The Media Practitioners Association is established under the Media Practitioners Association Act of 2022. This Act, however, has not yet come into operation. It is concerning and regrettable that the media in Botswana has failed to put in place effective and credible mechanisms to self-regulate. It is perhaps due to this lacuna that some observers have noted that the media in Botswana lacks credibility as they have been captured by both commercial and political interests. The lack of accountability in the media in the country is also evidenced by the poor success rate of the defence of reasonable publication where it has been raised. In the determination of whether the publication is reasonable, one of the important considerations is whether the journalist concerned acted in accordance with generally accepted good journalistic practice. Standards of good journalist practice are found in codes of ethics that are enforced by independent media self-regulatory bodies.

3. Limitations on media freedom The Constitution at Section 12 (2) provides the conditions that any derogation on media freedom must comply with. There are three conditions which must all be met: a) ‘Contained in or done under the authority of any law’ – this particular component has four requirements; - The derogation must have some basis in law, i.e. a statute, delegated legislation or rule of the common law; - The law must be accessible; - The law must be crafted with sufficient precision to enable an individual to regulate their conduct. In other words, the law must be unambiguous. - Where the law confers discretionary powers on the executive, there must be in place adequate mechanisms to guard against abuse. b) The restriction must be shown to be serving legitimate interest as stated in the provision. c) The restriction should be reasonably justifiable in a democratic society. The reasonableness of a provision that restricts media freedom should be judged on whether it arbitrarily or excessively invades the enjoyment of the right according to the standards of a society that has proper respect for the rights and freedoms of the individual. A three-stage approach in determining whether or not a limitation on fundamental rights is permissible in the sense of not being shown to be arbitrary or excessive is recommended. In determining the reasonableness of a limitation on fundamental rights, the following questions must be answered:

(i) Is the legislative objective sufficiently important to justify limiting a fundamental right? (ii) Are the measures designed to meet the legislative objective rationally connected to it? (iii) Are the means used to impair the right or freedom no more than is necessary to accomplish the objective?”

In addressing the third limb of the constitutionality test, a court will be called upon to engage in a balancing exercise. It must weigh the impact of the limitation upon the rights of the individual against the importance of the legislative objective. The importance of the objective must be measured against the gravity of the infringement of the protected right. This will entail weighing the significance of the public interest in the restriction against the seriousness of the infringement of the individual right. There exist several provisions in Botswana which restrict media freedom, which, in my view, clearly do not meet the constitutionality test. Several of these provisions are a colonial legacy, which have long been repealed in their place of origin and found to be unjustified limitations on freedom of expression in many countries where the laws were exported. Some of the offences covered in these provisions include those said to be against the public order and authority of the State such as: • Alarming publications – Section 59 of the Penal Code • Sedition Sections 50 and 51 of the Penal Code • Prohibited publications – Section 47 of the Penal Code • Insults relating to Botswana, Section 93 of the Penal Code.

It is contended the above provisions fail the constitutionality test because they use vague concepts, create speculative offences and also give very wide discretionary powers to those who enforce the provisions. They are also overbroad in their application such that it cannot be said they are reasonably justifiably in a democratic society.

4. National security and media freedom

Although national security is a term that is frequently used in both national and international legislation, it remains a highly contentious concept. National security is admittedly an elusive concept that may defy precise definition in law because threats to national security vary in character and may be difficult to anticipate in advance. However, there is consensus in international law that genuine national security interests should be about protecting a country’s political independence or territorial integrity from the use, or threatened use of force. The ISSA does not define national security, but threats to national security in the following terms:

A threat to national security means: (a) Any activity relating to espionage, sabotage, terrorism or subversion, or intention to engage in any such activity directed against, or detrimental to the interest of Botswana and includes any other activity performed in conjunction with any activity relating to espionage, sabotage, terrorism or subversion, but does not include any lawful advocacy, protest or dissent not performed in conjunction with any such activity; (b) Any activity directed at undermining, or directed at or intended to bring about the destruction or overthrow of, the constitutionally established system of government of Botswana by unlawful means; (c) Any threat or act of violence or unlawful harm directed at or intended to achieve, bring about or promote any constitutional, political, industrial, social or economic objective or change in Botswana and includes any conspiracy, incitement or attempt to commit any such act or threat; and (d) Any foreign-influenced activity within or related to Botswana that; (i) is detrimental to the interest of Botswana, and (ii) is clandestine or deceptive or involves any threat to the State or its citizens or any person lawfully resident in Botswana

The definition of threats to national security in paragraphs (a)–(c) above, is consistent with international norms as it relates to the protection of the State of Botswana’s political independence or territorial integrity and governance institutions from the use, or threatened use of force. Part (d) of the definition of threats to national security fails the condition of foreseeability as it is ambiguous and also confers wide discretionary powers on the executive without putting in place mechanisms to guard against abuse of the discretion. In defining threats to national security, the provision refers to ‘any foreign-influenced activity’. There is no qualification that such activity should pose threats to genuine national security interests. The provision is therefore widely crafted and would include activities that have no bearing on the security of the State. Further, the provision requires that the activity must be detrimental to the ‘interest of Botswana’. This phrase is borrowed from laws enacted in the UK such as the Official Secrets Act 1911, which uses the phrase ‘interest of the state’. The House of Lords interpreted the latter phrase to be identical with whatever the government of the day lays down as public policy. It is submitted that the phrase interest of the State is synonymous with interest of Botswana. The danger in giving the executive unfettered powers to decide what would be in the interest of the State is that the discretion can be easily exercised in a manner that is self-serving and not in the public interest. Finally, the provision requires that the activity must involve ‘any threat to the State or its citizens’. The expression ‘any threat’ is too wide and can be construed by the executive to include acts that are not necessarily a threat to the security of the State but are perceived to be threats to the government of the day. For example, the government may consider efforts by international human rights organisations in collaboration with local organisations aimed at promoting democratic practices in a country a threat to national security if the government perceives such efforts as a threat to its prospects of a re-election. The definition of threats to national security in the ISSA is not formulated with sufficient precision to enable individuals to anticipate with reasonable certainty what conduct is in danger of jeopardising genuine national security interests. The failure to give a clear definition of national security in the law is further exacerbated by the attitude of the courts where national security is involved. The CoA has said that national security is a matter for the Executive branch and that when the executive has made a determination on the issue, it is not the business of the courts to second guess the Executive. It is contended that the position taken by the courts is in violation of the first part of the constitutionality test because it leaves the defenceless individual without a remedy where national security is raised by the Executive. This will also allow law enforcement agencies to obtain interception warrants for individuals’ communications, including journalists, by simply alleging that they are investigating an individual on threats to national security knowing fully that the courts will not interrogate them on the matter. The position taken by the courts makes journalists easy targets for communications surveillance and also compromises protection of sources. Courts of law need to change their approach where national security is alleged so that they are able to interrogate the State’s assertion to minimise the possibility of abuse of the concept. The right approach is one suggested by Justice Lesetedi in the case of the Director General, DIS and Others v Seretse Khama Ian Khama, where he says: ”It would otherwise defeat the interests of justice and upset the delicate balance between the important public interest prevention and detection of crime on one side and the protection of the constitutional, statutory and common law rights of the individual on the other. A court faced with applications brought ex parte for the issuance of search warrants for the search and seizure thus has a duty not to rubber stamp such requests but weigh up the information brought before it, the risk of the evidence being compromised, the inconvenience and prejudice to the competing parties as well as other relevant factors to satisfy itself of the continued sealing and the proportionality of the measures sought.” Although the above was said in the context of an application for a search warrant, it is argued that this should be adopted for cases involving national security.

5. Law of defamation and media freedom

In democratic societies, reputation is an integral and important part of the dignity of the individual. Modern democratic societies are also committed to the principle that debate on matters of public interest should be uninhibited, robust and wide open. The media are primary agents for the dissemination of information and ideas, which is essential to the development of a democratic culture. In the performance of this mandate, the media must act with vigour, courage, integrity and responsibility. Conflict between the protection of reputation and media freedom will frequently arise where the media, in performing their function of disseminating information and ideas, make false statements about individuals that injure their reputation. The Botswana CoA has said that the Constitution places great value on human dignity and reputation while at the same time emphasising the right to freedom of expression. The court further observed that these two rights have to be balanced, which is ‘a somewhat delicate and difficult exercise’. The critical question is, have courts in the country managed to balance these two important interests? In my view the development of the common law to recognise the defence of reasonable publication, which is a defence that can only be raised by media defendants, is one of the significant steps towards finding a fair balance between the two important values. The defence has been defined in the following terms: “... the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.” Courts have said what they will be seeking to do in determining whether the publication of a defamatory statement was reasonable in a particular case is to perform a delicate balancing act between the protection of freedom of the press, on the one hand, and the protection of the reputation of the individual against an unstrained abuse of that right by the media, on the other hand. As noted above, the success rate in Botswana courts where the defence has been raised has been low. The defence has mainly failed because of findings by the courts that journalists had failed to act responsibly. In adopting the defence, it was cautioned that the adoption of the defence should not give members of the press the impression that they have a licence to lower the standards of care, which must be observed before defamatory matter is published by the media. Courts in Botswana have also, in their quest to strike a fair balance between reputation and media freedom, developed guidelines on the assessment of damages. The two main principles developed by the courts are:

a) That damages should not be punitive or exemplary, but should be designed to provide proper solacium, so as to fully compensate the injured party for the hurt and damage he has suffered; and b) Excessive damages are not to be encouraged because if courts were to award large sums of damages, this may inhibit freedom of expression and encourage intolerance. In view of the above, I am of the considered opinion that the law of defamation in Botswana poses a threat to media freedom. Rather, the fact that in most cases where the defence failed where it was raised, this must be a wakeup call to journalists in the country to take the matter of promoting and maintaining standards in the sector seriously.

* TACHILISA BALULE(PhD), is Associate Professor of Law, University of Botswana.

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