Media under the scalpel
Following the promise to repeal the Media Practitioners Act ( MPA) of 2008 in order to pave way for a new replacement, the draft for the latter has been gazetted and is in discussion in parliament. Like its predecessor, the new statutory intervention proves government is not about to retreat from its desire to control access into the media industry. Unlike with the previous attempt, this time the executive has come up with a tried and tested approach of winning the confidence of the industry. The media fraternity has been made to champion the drafting, cushioning the government from a possible backlash. This modus operandi has been tried before when government established a state sponsored NGO council. The NGO community participated in the formation of the council, oblivious to the obvious attempt to hijack the process and kill the existing self- regulated arrangement. This obsession with controlling civil society is evident with the government’s persistence to establish a government incubated media council.
The MPA has been on the shelves since enactment in 2008. The attempt to bring it to life hit a snag when one of its critical structure, the Appeal’s Committee could not be composed and activated. The Law Society of Botswana, who were required to provide its chairpersonship, had refused to participate and this rendered the whole process sedentary. The bone of contention, amongst others, was the registration of media practitioners, criminalisation of journalism and the active role played by the government minister in its operations. Calls to repeal the law, including parliamentary motions, fell on deaf ears over the years. In 2015 Member of Parliament, Phenyo Butale brought a motion to repeal the Act. The ruling party MPs rejected his call. Recently, the repeal proposal was again brought as a parliamentary motion, this time sponsored by Member of Parliament, Dithapelo Keorapetse. It was tabled in 2019 and rejected by the ruling party members who dominate the house. The executive promised to bring a replacement bill hence the draft currently in parliament ( July 2022), 7 years after the 2015 rejection. This is a four instalment series to dissect the draft bill, providing insight and comparison between the existing law and the draft. Hopefully, Members of Parliament, in particular, would know what to do with the MPA, if they have to repeal, repeat or retreat.
It is worth noting that the current draft carries few positives such as:
i. The punitive tone has been watered down.
ii. The criminalisation of the profession is not as pronounced;
iii. The minister’s role has been radically reduced as the responsibility to appoint the committees now lies with the Association, made up of professional bodies.
iv. The draft establishes a media fund and other pro development initiative s
These however, recede in obscurity when the red flags become conspicuous. From media activism point of view, any statutory intervention must not benefit the industry development only but the public in general. Furthermore, any statutory regulation, if needed, must not be inconsistent with the fundamental freedom of expression drawn from international best practices. It is for these reasons that the current law was never accepted and notable that the same issues have been repeated in the current draft.
Botswana has previously received favourable international ratings on freedom of expression and the media. The Reporters Without Borders, Freedom House and other agencies reflect no serious violation of freedom of the Press/ expression in Botswana. It is therefore imperative that the country guards jealously this status and be aware that it could change at a snap of a finger, partly due to the existence of offensive laws or lack of progressive ones.
In this segment, the discussion revolves around the concept of registration of journalists.
REGISTRATION OF JOURNALISTS
At Section 37( 1), the new draft, like the law under repeal, provides for registration of journalists. Requirements for one to be registered are academic qualifications, or industry experience or the discretion of professional bodies. The professional bodies are listed as the Media Institute of Southern Africa ( Botswana Chapter), Editors Forum, Botswana Media and Allied Workers Union and Press Council of Botswana. What appears to be the obvious intent is to make the practice of journalism exclusive, emulating professions like engineering, real estate, law and others.
Proponents of registration cite as instigation, the proliferation of nonprofessional news sites, especially on social media. These, they argue, are a fertile ground for fake and unethical news. The argument is that differentiating between professional and non- professional news bearers would protect the integrity of the profession. This is a fair argument, but it could still be a question of perspective; like, from which end of glass would one measure its contents? The explosion of the usergenerated news platforms appears to have irked some in the industry, especially when these platforms propagate misinformation, disinformation and mal- information.
Accordingly, the argument goes, if these are shut out, there would be clear delineation between the professional news and user generated news. The readers would not paint all with one brush. This argument assumes that breach of ethics emanates from the user generated news. But the attempt to regulate the media under the pretext of ethical misconduct, precedes the revolution of social media. Even if this was the case, the solution of closing users outside, is counter the notion of citizen journalism, which allows the participation of non- professionals in the generation of news. With good intentions, mainstream media and government must undertake a campaign to assist these platforms to create self- regulated networks.
Registration of journalists, sometimes known as licensing of journalists is generally frowned upon in democratic societies. This should not be confused with accreditation or registration for space management or administrative issues, for instance, when sports writers are requested to get accreditation for a local derby. Registration is understood to be inconsistent with the ideals of freedom of expression. Freedom of expression is expressed in both national and international statutes and treaties as a right for all. The key phrase is ‘ for all’. Subsumed under the concept of registration is de- registration and non- registration. There is therefore, no other purpose for registration in this draft bill, other than for licensing and exclusion.
The link between journalism and freedom of expression is inherent. Delinking the two would be to the detriment of journalism itself. It is this link that has saved the media in the past and continues to do so. In the State vs the Guardian group in 2002, the gist of Justice Isaac Lesetedi’s ruling was that the constitution of Botswana, despite not explicitly protecting media freedom, provides such protection in Section 12 under Freedom of Expression. The media group went on to win the case, but as it is evident now, the government never really gave up.
Similarly, the Universal Declaration of Human Rights in Article 19 states that there shall be no frontiers to freedom of expression and such expression shall be enjoyed through all media.
Everyone has the right to Freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. So is the International Covenant on Civil and Political Rights ( ICCPR), which, also in Article 19, associates itself with the declaration:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. These obligations have trickled down to continental and regional treaties and declarations, amongst them: The African Commission Declaration of Principles of Freedom of expression and Access to Information as well as the SADC Protocol on Culture, Information and Sports and several others, notably the Windhoek Declaration of Press Freedom.
REGULATION
In this part, effort is made to provide insight on how the new draft looks at self- regulation vis a vis statutory regulation. The circulating draft appears to be offering co- regulation in that the state and the industry have active roles. It is argued, however, that this is not necessarily the panacea towards media regulation as the state will always have an upper hand. An example has been given earlier on how the state can manipulate the situation against public interest. The argument that the media has been roped in does not help since freedom of expression, let alone of the media, is not a reserve for the media industry alone. It is a fundamental right for every citizen.
THE MEDIA COUNCIL
The drafters of the new document were not explicit enough to declare the death of the self- regulatory Press Council of Botswana ( PCB). Continuing to have it as one of the professional bodies recognised by the intended law, is deceptive. The intended bill has therefore, if this draft becomes law, effectively sold PCB a dummy and usurped its mandate, with implicit justification that the latter has been ineffective and lacks teeth.
From Section 39 to 59, the Bill introduces the Ethics and Conduct Committee, Complaints and Disciplinary Committee as well as the Appeals Committee. These are the work stations for regulation. It is here where the media fraternity, in particular, must apply close scrutiny.
The appeals committee has been given veto powers and can even initiate an appraisal of the Complaints Committee decision without a complainant. It must be noted that in the existing law, the Appeals Committee is chaired by LSB recommended representative. It was due to this provision that the law could not be implemented as the LSB protested by refusing to recommend the chairperson. In the new draft, the dispensation has been expunged, meaning that one just has to be a member of LSB but the latter no longer has the recommendation powers.
MICRO MANAGEMENT OF THE NEWSROOM
The draft bill is taking away the discretionary powers of the editorial management. The following are examples of how the draft is prescriptive, and in the process interferes with the editorial independence.
i. Compulsory By- line: The draft insists on the use of a by- line in a news story. The provision prescribes that there must be a by- line for every story and in the occasion that there is no by line, the head of publication or editor shall take responsibility for the story. While it is common knowledge that the editor takes responsibility for any content in their production, with or without a by- line, proactively insisting through a statutory requirement has a chilling effect on the discretionary powers of the editor. It has an effect of making the editor take ownership of copyright as if they initiated the story.
ii. Right of reply: The Bill insists on the right to reply. Ordinarily, a right to reply is expected in any serious news outlet. This is usually stated in the code of ethics of journalism. Section 37 requires that: the reply be given same prominence as the original story; that the reply be published not later than the second edition following the original. Again, the draft is interfering with the editor’s discretion. While it is a right, as the name implies, the editor must still reserve the right of admission. The risk here is that the reply itself could be libellous or offensive to some constitutional limitations of freedom of expression. The best practice would be to reserve the editor discretion by leaving the matter with the code of ethics, with the understating that if they abuse their discretion powers, the complaints/ appeals committees are there to provide oversight.
MINISTER’S INVOLVEMENT
On the surface it appears the draft, unlike the existing MPA, has no role for the cabinet minister and therefore free from political interference. This is one of the subjects that was the bone of contention with the shelved Act, which is the subject of the intended repeal. This however is negated by just one mention in Section 61 ( a) and ( c) which reads:
The Minister may, in consultation with the Association, make regulations:
a) Relating to any other matter intended to safeguard the interests of the public and promote professional standards in the media
b) To provide for anything for the better carrying into effect of this Act
c) Prescribing anything to be prescribed under this Act
Sub section ( a) and ( c) give the minister an open check to make regulations that in his view would benefit the public and the media. The fear that the minister will abuse the powers is not far- fetched. The way the ministers and government often abuse or interfere with editorial independence at the state media despite the latter having editorial guidelines is well documented. There are also recorded incidents where the minister would defy orders from a recognised regulatory body. One such was when the then minister refused to give opposition parties an editorial space in the state broadcasters despite being ordered so by the National Broadcasting Board, the now Botswana Communication Regulatory Authority in 2009.
CRIMINALISATION OF JOURNALISM
The Act under repeal subjected journalists to a litany of offences and corresponding penalties. While the new draft has done away with such intentions the retained one in Section 61 has the same effect. It reads:
A person who: a) Without lawful justification fails or refuses to comply with any decision made in terms of this Act;
b) Obstructs or hinders any person in the exercise of any powers under this Act;
c) Furnishes information or makes a statement to the complaints committee or appeal committee which he or she knows to be false or misleading in any material particular,
Commits an offence and is liable to a fine not exceeding P2000 ($ 200) or to imprisonment for a term not exceeding six months or both.
Subsequent sub sections go to indicate that the penalty doubles if the offence is made by a media enterprise and that the head of the enterprise is held accountable. Anyone who has been in the news room knows the peculiarity of the industry. It is easy to make decisions that could fit as offences under this draft.
For instance, what happens if a journalist is unable to disclose a source to the committees? One needs to appreciate the psychology of a journalist or editor ahead of a deadline. To publish or not to publish is unique to each story. It is revealing that nowhere in the draft, does it mention freedom of the media, let alone, ‘ public interest’. These should be the baseline for any involvement in the media space.
What is overdue is a law that talks to the development of the industry without any strings attached. The obsession with controlling the media is archaic, if not counter- productive. Opportunities have presented themselves with the social media explosion and the government can simply facilitate their exploration, especially by and for the youth.