Botswana Editors Forum calls for key regulatory reforms
The Botswana Editors Forum (BEF) would like begin by stating that as an organisation mandated to protect and promote media freedom and freedom of expression, we stand firm and ready to work with all stakeholders in Botswana, including government and those in the state media and civil society, to help ensure that the local media is able to operate freely and independently without fear or favour.
In that regard we would like to acknowledge on this occasion of World Press Freedom Day the improved climate of media freedom and freedom of expression in Botswana since 2018 when President Mokgweetsi Masisi took office.
This should bode well for the future of the media, especially against the backdrop of harassment, detention and surveillance that characterised the previous administration.
The Botswana Editors Forum would also like to applaud the willingness of the government to roll back controversial provisions of the 2022 Criminal Procedure and Evidence Act enabling warrantless surveillance. It shows a commitment to listening to the concerns of stakeholders and incorporating recommendations, which are perceived to be progressive.
We further recognise the recent efforts by the government to deepen professionalism in the media with the enactment of the Media Association Act although there are significant voices and rightly so too who remain concerned and apprehensive about provisions dealing with the mandatory registration of media outlets and journalists.
Ladies and gentlemen, the policy of limiting advertising in private media, more so advertising by parastatals that can be placed in state media regardless of market conditions, continues to have a chilling effect on the freedom of expression and efforts to expose corruption undermining a publicly stated priority of President Masisi, when assuming high office. This is especially the case because Botswana does not have an independent legal framework establishing standards for state-owned media, which are not subject to the Botswana Communications Regulatory Authority (BOCRA), which is the body responsible for monitoring adherence to broadcasting regulations.
Vexatious lawsuits against media in the form of SLAPP’s are on the rise and proving to be a serious threat and worsening the private media’s already precarious financial situation with punitive damages awarded by the courts.
Botswana’s criminal law includes several provisions, including sedition, that have been or could be used arbitrarily against the private press.
This scenario is supported by the recommendations of the UN Human Rights Committee’s 2021 Universal Periodic Review for Botswana, which cited provisions in the National Security Act, the Cybercrime and Related Crimes Act, and the Penal Code, which unduly restrict freedom of expression and access to information.
For instance, Section 59 of Penal Code criminalises the publication of “any false statement, rumour or report, which is likely to cause fear and alarm to the public or to disturb the public peace”. Violations may result in a punishment of imprisonment for up to two years, a fine, or both. The Penal Code also includes criminal penalties for defamation, which can have a disproportionate chilling effect on the freedom of expression, especially when punishments include imprisonment. These legislative provisions are not consistent with international best practice and need to be reviewed. We hope the government will use the review of the Constitution to effect appropriate changes in a constitution that begs significant reforms.
Although our constitution guarantees the freedom of expression, it is subject to limitations by statutes such as the Directorate on Corruption and Economic Crime act, the Botswana Defence Force (BDF) Act, and the National Security Act (NSA). Furthermore, access to public information remains contentious.
Botswana has long been regarded as a role model for democracy in the region, especially in comparison to other countries in sub Saharan Africa. But despite the impressive strides made by the government in rebuilding relations with private media, we have regressed in certain areas and it is important we take remedial steps to regain our position of good standing.
The country ranked 30th on The Economist’s 2021 Democracy Index higher than any other country in sub-Saharan Africa after Mauritius. Civil liberties are, in general, better protected in Botswana than in many neighbouring countries. It is one of just seven African countries to be considered “free” by Freedom House’s Freedom in the World Report. Botswana is one of only four countries in Africa to be members of the Global Media Freedom Coalition, and in 2020 it co-hosted with Canada the second Global Conference for Media Freedom. The Botswana Editors Forum believes it is necessary to build on these milestones.
We would therefore like to take this opportunity to encourage government to shore up a number of weaknesses and gaps in the legal framework protecting press freedom in Botswana by making a number of regulatory and policy reforms.
The Botswana Editors Forum therefore calls for the following:
1) Introduction of long overdue laws on Freedom of Information to ensure the right to access of information held by public authorities to allow the media to play a watchdog role effectively
2) Introduction of whistleblower laws to provide legislative support for those who expose and report corruption in either the private sector or the government
Reforming of criminal laws restricting press freedom by bringing Botswana’s criminal laws in line with international standards on freedom of expression and ensure that journalists do not face criminal prosecution for their work. This includes repealing provisions in the penal code such as provisions on defamation and sedition that can be used to unduly restrict freedom of expression and the press, in line with international human rights commitments and frameworks and doing away with criminal defamation.
3) Protecting journalists from vexatious lawsuits by adopting concrete mechanisms for preventing vexatious lawsuits against journalists and media outlets such as an early dismissal mechanism and sanctions for those who bring vexatious litigation.
4) Ensure independence of the public broadcaster by passing legislation to transform the country’s state media into genuine public service broadcasters.
This legislation must include guarantees of independence and protections against government interference, and should be drafted in close coordination with local and international experts