The arrest and detention of local journalist, Outsa Mokone on sedition charges on Tuesday has resuscitated calls for the review of Botswana constitution, which has been criticised for containing archaic laws and concentrating too much power on the presidency.
As one observer puts it "the problem with Botswana is that the whole substance and content of the constitution is archaic. Everything is concentrated in the presidency and some laws have no place in a modern state. Progressive countries have long dealt away with all these archaic things," he says.
Even more startling, the Mokone saga has sparked a diplomatic war of words between government of Botswana and the United States Department of State, showing cracks in the cordial relationship that has been enjoyed and sustained since independence. In a historic action, the US State Department on Wednesday openly criticised the government of Botswana for the arrest of Mokone. Botswana has always been seen as a beacon of democracy and it has been unimaginable that it could attract harsh criticism from its western friend, America.
Deputy Department Spokesperson, Marie Harf, said the United States is deeply concerned by the arrest of newspaper editor Outsa Mokone by the Government of Botswana on charges of sedition relating to an article published by his newspaper The Sunday Standard. "The United States strongly values freedom of the press, which is a key component of democratic governance. Freedom of expression and media freedom, both of which foster the exchange of ideas and facilitate transparency and accountability, are essential components for democracy. Outsa Mokone’s arrest is inconsistent with these fundamental freedoms and at odds with Botswana’s strong tradition of democratic governance," she said.
A prompt and heavily loaded response from Botswana government was dispatched immediately, telling the Americans off. We find it unfortunate to say the least that a foreign government, much less one that professes to be a friend and partner of Botswana, should issue such a statement about an on-going judicial process in our country, without even having first approached the appropriate authorities for clarification on the matter, the statement said. The Botswana government said at no point prior to the issuance of the said press statement did any representative of the US Government approach the Ministry of Foreign Affairs and International Cooperation, as is the accepted diplomatic norm.
The Botswana government called for the respect the judicial process as the Mokone matter is still before the courts. "We can only hope that outsiders who profess to be informed will exercise similar restraint and not encourage lawlessness in Botswana," the statement said. Making a comparison between the two countries the statement said Botswana is currently ranked 25th in the world, just below the Americans who are themselves only at number 20, in the 2014 World Justice Project Rule of Law Index. Botswana then criticises the US government for violations of human rights when it said: "we would note that as a nation under the rule of law the government of Botswana does not detain anyone indefinitely, much less hold them in occupied portions of third countries in violation of international law, e.g. Guantanamo".
The statement said if the government of the United States of America is concerned about the detention of journalists, they might be better placed to deal with current allegations of abuse in their own country, such as the recent alleged assault and detention without charge by law enforcement personnel of the Washington Post reporter Wesley Lowery, while he was attempting to cover the unrest in Ferguson Missouri, subsequent to the fatal police shooting of 18 year old Michael Brown. "It is also well known that the Missouri incident fits patterns of documented abuse, as is reflected by various additional sources, e.g. the UN Working Group of Experts on People of African American Descent, which has reported evidence to the UN Human Rights Council, of a 2012 survey that at least 136 unarmed African Americans were gunned down by police, security guards and/or self-appointed vigilantes in the United States of America in a single year. Given the above, the American government might wish to put its own house in order before rushing to hastily comment on the judicial affairs of others. It may be noted that the government of Botswana does not normally discuss such matters in the public domain as we recognise that there are appropriate diplomatic channels and protocols for the exchange of views among our international partners," the statement read.
Intimidation! That is the common word that forms a thread of comments from different organisations, media practitioners and members of the public regarding Mokone's arrest and detention. The Law Society of Botswana (LSB) said they are deeply concerned about the arrest and detention of Mokone on the basis of penal provisions which do not, on the face of it, apply to the facts complained of by the state. Chairman Lawrence Lecha said the reading of the warrant of arrest does not state with material particularity what article of the Sunday newspaper has violated the said penal provisions. Mokone’s arrest is in relation to a Sunday Standard article of 1st September 2014 entitled “President hit in car accident while driving alone”. He said for an offence under section 50(1) of the Penal Code to be established prima facie, the prosecution ought to show that the article in issue brought “hatred or contempt” or excited “disaffection against the person of the President.” However, he said, when reading the article in issue, the LSB cannot believe that the same can be said to be capable of leading to the eventualities contemplated by section 50 (1) of the Penal Code. "The issue here is not whether or not the article or the parts thereof are true or false, but whether the facts and circumstances can sustain a charge of sedition. In the view of the LSB this is far-fetched," said Lecha.
Attorney Tshiamo Rantao says it is a perfect defence to a charge under this provision to show that your intention in writing an article critical of the President or giving a speech at a political rally critical of the President was to show that he was "mistaken in any of his measures". He said, after all, “politicians attack the President on a daily basis at political rallies, radio debates etc so that he is hated by the people in order that his party be voted out. It matters not that they are wrong on the facts”. He said the president has the right to sue for defamation like any other person, but he does not have the right not to be criticized, even if the criticism is premised on wrong facts. "If my interpretation of the provision is wrong then the question is whether or not the provisions would pass constitutional muster. A contrary interpretation would offend against section 12 of the Constitution on freedom of expression. Such an interpretation would provide a limitation which is not in the public interest and which would muzzle all manner of speech against the President. That is not what the framers of the Constitution intended," he said.
Lecha emphasised that the right to freedom of expression is sacrosanct, hence it being enshrined in Section 12 of the Bill of Rights of the Constitution of Botswana. Whilst it is a given that such right is not without bounds, it is accepted in a democracy and in terms of precepts of the Rule of Law and Good Governance that interference with such right should be in the public interest or be reasonably justifiable in a democratic society, he added.
"Given the facts of this matter, there seems to be a strong case to suspect that, unless the contrary is shown, the action of the state was aimed at limiting the media and the public’s right to freedom of expression through intimidation and fear leading ultimately to self-censorship. If this turns out to be so, it would be a sad day for the country as such actions would not only be unconstitutional but also contrary to the basic tenets of the Rule of Law in a democratic dispensation," said Lecha.
LSB further observed that enjoyment of the right to freedom of expression by the Sunday Standard newspaper and other private media in Botswana ensures that they are not afraid of writing and commenting critically on issues of corruption, human right violations, accountability and good governance in general. The Law Society of Botswana challenges the government to assure the nation that the arrest and detention of Mokone under the archaic sections of the Penal Code is not an attempt to scare them into submission and hence muzzle them. This is especially important as public discourse enters its height due to imminent elections in October 2014, Lecha said.
In a research paper titled Insult laws: a challenge to media freedom in the SADC's fledgling democracies? Dr Tachilisa Balule found that many states in the region still have anachronistic laws that unduly hinder free and open debate of public issues. He said it is a contradiction to embrace democratic rule and at the same time retain undemocratic laws. "In a democracy those entrusted with the administration of public affairs are expected to tolerate a greater degree of criticism in debates on public issues. Many leaders in the SADC region are overly sensitive to criticism and will not hesitate to resort to colonial era undemocratic laws to prevent critical appraisal of their performance and thereby deprive the public access to information about their misdemeanours," he said.
There is consensus among international and regional human rights bodies, amongst them Amnesty International- who called on countries to end the use of archaic sedition law to curb freedom of expression, that protection of freedom of expression is an indispensable element of democracy. Following the charges against Mokone, Freedom House said: “The sedition charge against Outsa Mokone and his September 8 arrest make it increasingly clear that freedom of expression is under attack in Botswana, as the government tries to silence journalists,” said Jenai Cox, program manager for Africa programs at Freedom House. “The charge against Mokone, made in response to an article that detailed the president’s involvement in a car accident, follows the government filing a suit on a separate issue against his newspaper, which was accused of violating the law by publishing excerpts of a government investigation into alleged corruption of the head of Botswana’s intelligence services, Isaac Kgosi.” Botswana is rated Free in Freedom in the World 2014 and is rated Partly Free in Freedom of the Press 2014.
Countries in Americas and Africa have been accused of using insult laws to stifle criticism of government institutions and public officials.
Chronology of battles between government and the media
Under President Quett Masire
1986: The Guardian editor Kgosinkwe Moesi was forced to resign due to a series of legal battles over stories deemed biased and anti-government.
1987: Samuel Mbaiwa of Radio Botswana arrested and charged with incitement after reporting on the disappearance of a child in Bontleng location followed by riots.
1992 September: Prof Malema of Mmegi locked up for days and charged with breach of National Security Act. Mmegi editor, Titus Mbuya also questioned.
Late 1990s: Masire accuses and physically confronts Mokone of making the country ungovernable.
Under President Festus Mogae
2000 Advertising ban by government on Botswana Guardian and Midweek Sun after The Shrinking President story
Under President Ian Khama
2008: Media Practitioners Act passed by parliament.
The MPA contains some restrictive provisions which are not reasonably justifiable in a democratic society. The Act called for the establishment of a statutory media oversight body and mandated the registration of all media workers and outlets—including websites and blogs—with violations punishable by either a fine or prison time. The minister of communication would be able to exert significant influence over a new Media Council’s handling of complaints against outlets and journalists through control of key committees. Although passed by the legislature, the act has not entered into force due to legal challenges by opponents, including a 2010 lawsuit by 32 individuals and groups representing media outlets, nongovernmental organizations (NGOs), and trade unions. A final ruling on the law’s constitutionality is still pending at the courts.
2009: Khama sues Sunday Standard over John Kalafatis killing story.
2013 December: Khama announced that individual government officials would be able to use state funds to launch defamation suits against the media, citing what he said was the “growing slander now being directed against members of the executive, including senior government officials, who are subjected to personal attacks for carrying out their public duties.” The initiative effectively circumvents Botswana’s prohibition on government ministries, as entities, initiating such suits. Press freedom advocates warned that publicly funded lawsuits could increase self-censorship among cash-strapped media outlets.
08 September 2014: Mokone, Sunday Standard Editor arrested, detained and charged with sedition.