Saturday, October 16, 2021

BCP launches colonial era law criminal proceedings against media houses

Editors of four Botswana newspapers may be charged under the Alarming Publications Act, which prohibits the publication of material that “may create panic or disturb public peace.”

Sunday Standard Editor Outsa Mokone, Business Weekly & Review Editor Tshireletso Motlogelwa, Botswana Guardian Editor Justice Kavahematui and Lawrence Seretse were last week called in for questioning by the Botswana Police Service as potential suspects in contravening the colonial era law.

This follows a complaint by the Botswana Congress Party President (BCP) Dumelang Saleshando that publication of the “Tholwana Borethe” report by the newspapers caused panic, which contravenes the Alarming Publications Act.

Although the Mmegi newspaper also published the controversial report in its entirety, the publication has not been called for questioning, sparking speculations that the police service is hoping to rope in the publication as state witness against the four editors.

The use of Botswana Police and state security apparatus against the media and media practitioners is becoming increasingly common. The escalation of arrests and temporary detentions of media practitioners has become part of the journalists working conditions in Botswana.

From past experience being summoned to attend Police Headquarters to see an Assistant Commissioner, (Mphathi), meant that a senior public figure had filed a complaint. The number of Editors called in for questioning however was unprecedented and too indicative of something unusual.

Attending Police Headquarters with their Attorneys, Dick Bayford for Outsa Mokone and Kgosi Ngakaagae for Tshireletso Motlogelwa under the palpable threat of criminal sanction, possible arrest and detention was sufficient to cause reverberations across the media community and send alarm across international media advocacy groups.

During the course of interrogation, Deputy Commissioner Mphathi treated the BCP president more like an informer than a complainant. He would not disclose Saleshando’s identity, stating that “some politicians” had complained that extensive reporting on the Directorate of Security Services and Intelligence (DISS) operation named “Operation Tholwana Borethe” in July of this year had given rise to a complaint under the Penal Code for “Alarming Publication”.

Shortly after an unproductive interrogation, correspondence that formed the basis of the police investigations was availed to the media. The correspondence has since gone viral on local social media. In an ironic twist the correspondence dated August 3, and filed with the Botswana Police Service the next day, demanded that the police investigate allegations pertaining to “Operation Tholwana Borethe” and that “the architects (sic) of the said fake report be hunted down and charged together with whomever may have published the fake report without just cause.” The correspondence was issued by the Botswana Congress Party and signed on the party’s behalf by its President Dumelang Saleshando.

The Botswana Police Service, acting on the complaint, not made under oath as required prior to commencing police investigations into any offence, have seized the opportunity to seek confidential sources from the media. Though under threat of criminal prosecution, all the editors interviewed thus far into allegations of causing “public alarm” due to reporting on DIS involvement into the political arena, have refused to disclose their sources.

Commencing the day after events unravelled at the Botswana Movement for Democracy’s Congress in Bobonong on July 15, five media outlets ran articles on a leaked “Operation Tholwana Borethe” document alleged to have originated from the DIS. The document alleged political meddling by the State Security Apparatus into the affairs of the opposition parties under the Umbrella for Democratic Change (UDC) in order to undermine the opposition to ensure that their threats to reform and disband the DIS in its current format would not happen.

Shortly after the fractious BMD Bobonong congress, the Sunday Standard ran a series of articles on the “Report”, as did the Mmegi, its sister publication The Guardian, the Gazette and the Business Weekly & Review. Each publication took a different view point on the “Report”.

In subsequent reporting Mmegi newspaper, on July 28, in an article authored by INK Centre for Investigative Journalism, made the claim that the “Report” was a forgery. The article did not question whether the “Operation” was itself misinformation or untrue.Mmegi has to date not retracted its previous reporting of the “Operation”.

Response to the revelations from the various media houses was met with a swift Government rebuttal, denouncing the report as “fake”. In two separate statements, the first an official publication by government, the DIS denied the allegations contained in the report and asserted that they were aware of who authored the document. In the second statement, made during an interview between the DIS head Isaac Kgosi and the Botswana Gazette’s reporter Sonny Serite, the DIS confirmed the contents of the earlier rebuttal that they were aware of who the author of the document was.” The Gazette records Kgosi as saying, “he is some guy who goes around claiming to be a security expert.

The Sunday Standard can reveal that Saleshando discussed the Tholwana Borethe report with INK Centre for Investigative Journalism reporters before the organisation even started working on their article and publishing it in the Mmegi newspaper.

Before complaining to the Botswana Police Service, he informed the reporters of his plan to escalate the onslaught against the four media houses.

The BCP President then seized the report by Ink Centre for Investigation and rebuttals by the DIS and accepted them as correct,asserting that “significantly the DIS claims that it has carried out an investigation and they know the originator of the alleged intelligence report. They have also declared that the report is bogus. Mmegi newspaper has of last Friday also indicated that its investigations have led to a finding that the intelligence report is a fake.”

Also part of the police investigations is the transcript of a private conversation between BCP activists Kentse Rammidi and Chilliboy Rakgare on how the party can benefit from the BMD infighting. The report carried in the Sunday Standard revealed how a section of the BCP was pushing the then Sidney Pilane faction of the BMD against the Ndaba Gaolathe camp. The conversation was allegedly recorded by the DIS. Both Rammidi and Rakgare confirmed having the private conversation. The reporting by INK, as to the metadata on the actual report is hard to dispute, but what that reporting and the rebuttal by the Government and DIS does not address is the independent findings by four media houses as to the allegations contained in the report.

Speaking at the recently concluded World Investigative Journalism Conference in Johannesburg, attended by over 1200 investigative journalists from around the world, among them Pulitzer Prize winners, experts on media law and journalism, journalists noted an increasing trend being used by authoritarian democracies and the security apparatus of such states to plant false documents with the media based on ascertainable facts.

The purpose behind the trend is two fold, to discredit the media and to otherwise discredit reporting on illicit government conduct.

In the United States, MSNBC’s The Rachel Maddow Show, the country’s highest rated political commentator recently revealed the use of the strategy when her news organisation was “leaked” a false document purportedly establishing direct evidence of President Trump’s collusion with Russia. The document, investigations revealed, turned out to have been a fabrication. Had the media house reported on the document, Maddow asserted at the time, it would have undermined all their reporting on the allegations of Trump’s alleged collusion and vindicated the mounting criticism of private media promulgating “fake news.”

President Khama has in the past rallied against the media, calling the media unethical, not understanding issues, unpatriotic and of trying to undermine the Constitution.  Recently Khama told a public gathering that if Trump wanted to know where “fake news” was born then he should come to Botswana.

Political leadership in the Opposition have been quick to condemn Khama’s stance on the media, decrying it as undermining the foundations of Botswana’s democratic principles.

On August 1st, Botswana Congress Party Deputy President Kesitegile Gobotswang, authored an article in response to reports on“Operation Tholwana Borethe” in the Weekend Post titled “DIS inside newsrooms stinks”. In the article the party’s deputy leader asserted that the Sunday Standard was operating in collusion with the DIS and the American Central Intelligence Agency (CIA). The unfounded, defamatory and unverified comments, denied by this publication, were made without approaching either of the Editors of The Sunday Standard. Importantly the article on one hand accepts that the DIS has been involved in illicit political operations in contravention of its legislative provisions, a fact that is denied by Kgosi. Gobotswang stated that “We can state for a fact that DIS under Isaac Kgosi who is its Director General is a menace to our political order. In the current scenario the ultimate target is clearly the destruction of Umbrella for Democratic Change (UDC) and BCP in particular,” to buttress his point Gobotswang goes on to add, “In the recent past DIS has not hesitated to intervene in the ruling Botswana Democratic Party (BDP) internal wars. Recently there were reports about their active involved in BDP internal elections in support of the Vice President Mokgweetsi Masisi’s faction.” In contrast to this accepted position of political interference by the DIS, the BCP deputy leader claims that the allegations made in respect of “Operation Tholwana Borethe” were false, despite maintaining that the DIS was behind the “operation” in conjunction with The Sunday Standard.

The acceptance by the BCP Deputy President that the DIS is involved in political interference confirms the findings by independent investigations done and persistently revealed by this publication. The distinction however in the reporting on “Operation Tholwana Borethe” and the private conversation between BCP’s Rammidi and Rakgare was the perception that it painted the BCP in a bad light. The reporting was on the revelation of illicit DIS operations.

In his letter of complaint to the Botswana Police Service, Botswana Congress Party leader Dumelang Saleshando notes that the reporting on “Operation Tholwana Borethe” indicates that the DIS seeks to undermine the opposition in favour of the ruling Botswana Democratic Party. A position already accepted by Gobotswang, his deputy. In spite of the acceptance of this position the complaint indicates that the reporting “clearly caused public alarm”. There is no explanation in the police complaint as to why and how the reporting on DIS interference in politics, publically accepted as correct by BCP and other opposition parties has caused “public alarm”, in a manner that differs from their own public statements.

The Botswana Police Service gave no indication during the interviews with Mokone and Motlogelwa that they would investigate other public statements of DIS interference into the political arena, like those made by Gobotswang.

Media experts, note that the use of criminal sanction against journalist is fundamentally a degradation of democratic values. Experts on constitutional law and freedom of expression acknowledge that there ought to be no special dispensation for journalists and that any special protection that is warranted is not for them, but for their functions as a vehicle of freedom of expression. As was stated in the British publication The Guardian “Freedom of expression is a universal human right. It is neither the prerogative of the politician, nor is it the privilege of the journalist. In their day-to-day work, journalists are simply exercising every citizen’s right to free speech,” the New York Times (far from failing) noted that “A free press is fundamental to a democratic society. It seeks out and circulates news, information, ideas, comment and opinion and holds those in authority to account. The press provides the platform for a multiplicity of voices to be heard. At national, regional and local level, it is the public’s watchdog, activist and guardian as well as educator, entertainer and contemporary chronicler.”

The acceptance that the DIS has been involved in the political arena avails the BCP, and all other political parties a platform to call for a parliamentary inquiry into the abuse of office by the organisation and it’s Director General. A platform that politicians have over the years, despite revelations of corruptions and malfeasance by the media, refused or neglected to invoke.

In ensuring Freedom of Expression various democratic countries, not those who purport to be democratic, have found that criminal sanction against journalists violates the constitutional imperative of freedom of expression.

In 2014, Zimbabwe’s Constitutional Court held in respect of criminal sanctions against the media that “The overhanging effect of the offence is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” The court considered that remedies under civil law were sufficient to provide redress to those who believed they had been wronged.

The court took the view that the problem lay in the creation of a crime itself. It is unnecessary punishment as there are adequate civil remedies available. Retaining criminal sanctions against journalists the court found, even without actual imprisonment being imposed, was a “step backward in the evolution of human rights in Africa.”

While the media has grown accustomed to being targeted by government, becoming the subject matter of criminal investigation and possible sanction by politicians who have professed to be advocates for freedom of expression has taken the country a step backwards.

Speaking to the International Press Institute, 20 years ago, African and international icon Nelson Mandela emphasised that “a critical, independent and investigative press is the lifeblood of any democracy. The press must be free from state interference …” and that “It is only such a free press that can temper the appetite of any government to amass power at the expense of the citizen. It is only such a free press that can be the vigilant watchdog of the public interest against the temptation on the part of those who wield it to abuse that power” before concluding that “It is only such a free press that can have the capacity to relentlessly expose excesses and corruption on the part of government, state officials and other institutions that hold power in society.”

Botswana’s international media ratings have deteriorated over the years lowering its overall democracy index.

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