Vague offences have a chilling effect on freedom of expression
The UN Working Group on Arbitrary Detention has identified numerous provisions in Botswana’s legislation that have a “chilling effect” on freedom of expression and especially on journalistic freedom.
The Group - represented by Elina Steinerte of Latvia, and Dr. Mumba Malila, Zambia’s Chief Justice as well as staff from the Office of the UN High Commissioner for Human Rights - conducted an official visit to Botswana from 4 to 15 July 2022.
According to its preliminary findings, the Working Group is seriously concerned about numerous provisions in Botswana legislation imposing criminal sanctions for offences arising from mere peaceful exercise of rights protected by the International Covenant on Civil and Political Rights, especially freedoms of expression, assembly, and association.
The Group highlighted that the Penal Code criminalises defamation, while the Cybercrime and Computer Related Crimes Act, No 18 of 2018 allows for imprisonment of up to one year for “offensive electronic communication”, and the Emergency Powers ( Covid- 19) Regulations of 2020 penalised “publishing with the intention to deceive” with up to five years imprisonment.
The Group also cited the Public Order Act No. 6 of 1967 which requires prior permission from the police for any public meeting or gathering. Failure to obtain such permission may lead to a fine or up to six months imprisonment or both.
It also mentioned the Media Practitioners Act, No 29 of 2008 ( which was repealed last week and is awaiting the President’s assent) requires all media workers and outlets to register, including websites and blogs. Failure to register leads to a fine or up to three years imprisonment or both.
It is significant that the repealed law still requires journalists to register. According to the UN Working Group, these provisions may have “a chilling effect on freedom of expression and especially on journalistic freedom in Botswana”.
Further, the Group expressed serious concern over “vague offences”, which it said may lead to imprisonment under the current legislation of Botswana, such as “common nuisance”, “idle and disorderly persons”, and “use of insulting language” and “rogues and vagabonds”.
According to the Group, these offenses are treated as matters of criminal law and therefore anyone, including children, can be found guilty of such crimes, with penalties ranging from fine or one- month imprisonment or both for first offenders, to up to a year of imprisonment for repeat offenders.
In a press conference it addressed at the completion of its mission, Steinerte said that the Group was informed that in the context of Covid- 19 legislation, failure to wear a facemask may result in imprisonment.
She said that they met individuals who were imprisoned for these offences and observed that these provisions applied against individuals in situations of vulnerability such as vagrants, and used against children considered to be unruly.