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Sedition and Freedom of Expression for Journalists in Botswana: A Comment on Mokone v Attorney General and Others

Published online by Cambridge University Press:  24 February 2022

Badala Tachilisa Balule
Badala Tachilisa Balule*
Affiliation:
University of Botswana, Gaborone, Botswana
*
[email protected]
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Abstract

Journalists play an important role in promoting and facilitating the right to freedom of expression. To promote and facilitate freedom of expression effectively, they should be free to perform their duties without fear of reprisals, intimidation or harassment. Journalists should carry out their duties in a legally safe environment. It has, however, been observed that journalists across the world are subjected to various human rights violations and abuses aimed at hindering them in performing their work. Journalists in Botswana also endure harassment and intimidation. One form in which this harassment manifests itself is through the use of sedition laws. In many countries these laws have been found to limit the right to freedom of expression unjustifiably. The legality of sedition laws has been considered by the courts of Botswana, where the High Court upheld their constitutionality. This note critically analyses the High Court's decision.

Type
Case Note
Information
Journal of African Law , Volume 66 , Issue 2 , June 2022 , pp. 355 - 366
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Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of SOAS University of London

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Footnotes

*

LLB (University of Botswana); LLM, PhD (University of Edinburgh). Associate professor of law, Department of Law, University of Botswana.

References

1 See UN Human Rights Committee, General Comment No 34: Art 19: Freedoms of Opinion and Expression, CCPR/C/GC34 (adopted at the 102nd session, Geneva, 11–29 July 2011), para 13.

2 UN International Covenant on Civil and Political Rights (adopted by the UN General Assembly, 16 December 1966; entered into force, 23 March 1973), art 25.

3 See Legal Standards on Freedom of Expression: Toolkit for the Judiciary in Africa (2018, UNESCO Publishing) at 112.

4 See UN Human Rights Council res 33/2 on the safety of journalists, A/HRC/RES/33/2 (adopted at the 33rd session, Geneva, 6 October 2016); and Council of Europe recommendation CM/Rec (2016) 4 of the Committee of Ministers to member states on the protection of journalism and safety of journalists and other media actors (adopted by the Committee of Ministers, 13 April 2016 at the 1253rd meeting of the ministers’ deputies).

5 UN Human Rights Council, res 33/2, ibid.

6 Case of Vélez Restrepo and Family v Columbia (judgment of 3 September 2012) series C no 248, para 209.

7 African Commission Declaration of Principles on Freedom of Expression and Access to Information in Africa (adopted at the 65th session, 21 October - 10 November 2019, Banjul, The Gambia), principle 20.

8 Inter-American Commission on Human Rights, Violence against Journalists and Media Workers: Inter-American Standards and National Practices on Prevention, Protection and Prosecution of Perpetrators, OEA/Ser.L/V/II. CIDH/RELE/INF.12/13 (31 December 2013) at 4.

9 See Penal Code (cap 08:01), Laws of Botswana, secs 50 and 51.

10 “Tanzania: Sedition offences in the Newspapers Act and Penal Code” (17 December 2014) Article 19, available at: <https://www.article19.org/resources/tanzania-sedition-offences-newspapers-act-penal-code/> (last accessed 10 January 2022).

11 For a detailed discussion of the respective provisions, see: Limpitlaw, J Media Law Handbook for Southern Africa vol 1 (2021, Konrad Adenauer Stiftung)Google Scholar at 315 and 380 for Lesotho and Malawi respectively; and Limpitlaw, J Media Law Handbook for Southern Africa vol 3 (2021, Konrad Adenauer Stiftung)Google Scholar at 162 for Zambia.

12 Maseko and Others v The Prime Minister of Swaziland and Others, case no 2180/2009 (unreported judgment of the High Court, 16 September 2016).

13 UAHGB-000153-14 (unreported judgment of the High Court of 26 August 2014).

14 Abdul-Ethem, F “The role of the judiciary in the protection of human rights and development: A Middle Eastern perspective” (2002) 26/3 Fordham International Law Journal 761Google Scholar.

15 Constitution of Botswana (cap 1), Laws of Botswana, sec 18.

16 Fombad, CM “Enhancing the judicial role in human rights protection in Botswana” in Quansah, E and Binchy, W The Judicial Protection of Human Rights in Botswana (2009, Clarus Press) 133Google Scholar at 150.

17 Ibid.

18 See Attorney General v Dow [1992] BLR 119 at 166; and Ramantele v Mmusi and Others [2013] 2 BLR 658, para 69.

19 Mokone, above at note 13, para 77.

20 Id, para 113.

21 Id, para 116.

22 Mokone v The Attorney General and Others, CACGB-201-16 (unreported judgment of the Court of Appeal of 2 February 2018).

23 Id at 40; and Ramantele v Mmusi, above at note 18 at 670.

24 Mokone, id, para 41.

25 Constitution, sec 12(1).

26 See, IACtHR advisory opinion OC-5/85 (13 November 1985), Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts 13 and 29 American Convention on Human Rights) and De Haes and Gijsels v Belgium (1997) 25 EHRR 1, para 48.

27 See International Covenant on Civil and Political Rights, art 19(3); and African Commission Declaration, above at note 7, principle 9.

28 Chavunduka and Another v Minister of Home Affairs 2000 4 SA 1.

29 Id at 12.

30 See The Law Society of Zimbabwe v The Minister of Transport and Communications (2004) AHRLR 292 at 298.

31 Penal Code, sec 50(1).

32 Id, sec 51.

33 African Federation of Journalists and Others v The Republic of The Gambia ECW/CCJ/APP/36/15 (judgment of the Community of Justice Court of the Economic Community of West African States, 13 February 2018) at 40.

34 Id at 47–48.

35 Andrew Mujuni Mwenda and Another v Attorney General [2010] UGCC 5.

36 See Reforming the Law of Sedition (New Zealand Law Commission report 96, 2007) at 47.

37 Handyside v UK (1976) 1 EHRR 737, para 49.

38 See Petrus and Another v The State 1984 BLR 14 at 34; and Ramantele v Mmusi, above at note 18, para 70.

39 Uson Ramirez v Venezuela IACtHR (ser C) no 207 (20 November 2009).

40 Woods v Minister of Justice, Legal and Parliamentary Affairs 1995 1 SA 703 at 706.

41 Ibid.

42 Nyambirai v National Social Security Authority and Another 1996 (1) SA 636.

43 Id at 647–48.

44 Id at 648.

45 See UN Human Rights Committee, General Comment No 34, above at note 1, para 34; and Silver v The United Kingdom (1983) 5 EHRR 737, para 48.

46 Mokone, above at note 13, para 77.

47 African Commission Declaration, above at note 7, principle 9(4); UN Human Rights Committee, General Comment No 34, above at note 1, para 34; and Case of Lindon, Otchakovsky-Laurens and July v France, appln nos 21279/02 and 36648/02 (judgment of the European Court of Human Rights, 22 October 2007), para 45.

48 Shreya Singhal v Union of India (2013) 12 SCC 73, para 45.

49 Ibid.

50 Ibid.

51 Reforming the Law of Sedition, above at note 36 at 47.

52 See Boucher v The King [1951] SCR 265 at 286.

53 Lindon, Otchakovsky-Laurens and July, above at note 47, para 46; and African Commission Declaration, above at note 7, principle 21(1).

54 Konate v The Republic of Burkina Faso, appln 004/2013 (judgment of African Court on Human and Peoples’ Rights, 5 December 2014).

55 See Attorney General v Dow, above at note 18.

56 Fombad “Enhancing the judicial role”, above at note 16 at 149.

57 Attorney General's Reference in re The State v Marapo [2002] 2 BLR 26 (CA) at 32.

58 Fombad “Enhancing the judicial role”, above at note 16 at 144.