Even though I am a regular contributor to the Sunday Standard newspaper and should ordinarily be annoyed by the arrest of the editor of the paper I must confess that I am rather amused.
Except for the fact that Mr. Mokone had to endure the discomfort of a holding cell and being denied access to his legal representatives I think some good will come out of his arrest. I say this because a look at the offence for which he was supposedly arrested suggests that nearly everyone in this country, including our president can be charged under that section of the penal code. Whether they can be convicted of the offence by a court of law is another matter.
The section under which Rre Mokone is supposedly charged has rather interesting exceptions, demonstrating the difficulty in reconciling the constitutional provisions about freedom of expression and the offence of seditious intension. The first part of the section deals with seditious intension, but the exceptions make reference to an act, speech or publication. Again this change in expression indicates the difficulty that the drafters of the Penal Code have run into. As a matter of general law, the presence of an intension without an act does not constitute an offence. I may intend to murder someone but I cannot be said to have committed any offence by having such an intension. I am only guilty if I act out my intension.
Section 50 of the Penal Code sets out what constitutes seditious intension. Of course there is a dictionary definition of sedition but people must be careful not to confuse the two. My Collins paperback dictionary says that sedition is “speech, writing or behavior intended to encourage rebellion or resistance against the government” hence a seditious speech, writing or behavior is an act that results in rebellion or resistance against the government.
That is the dictionary context. As any lawyer knows there are legal authorities that say a dictionary definition of a word cannot determine what the word means in a statute. It is the statutory context that determines the meaning of the word. A public officer who reads the dictionary alone may well think a particular person’s actions are seditious. But that is not the scale to apply. The instrument that creates the offence is the Penal Code not the dictionary. It is therefore the exceptions in the Penal Code that matter. For example if I publish a story that intends to show that the president was mistaken to drive alone at night or at any time of the day, such a publication would not be seditious. The publication may well bring some to hate or hold the president in contempt, but according to the Penal Code I have not committed any offence. Effectively the offence of sedition suggests that I must be shown to have gone beyond the exceptions in the Penal Code. In fact from a reading of the Penal Code there are no national security concerns regarding the offence of sedition.
I am entitled in terms of the Penal Code to act and publish otherwise seditious material (in terms of the dictionary meaning of the word) and the Penal Code, to show that the president has been misled or is mistaken in any of his measures. There is no requirement that what I publish must be the truth. This suggests that even fiction is allowed. After all there is no requirement that in motivating a particular viewpoint I must do everything at once. I may decide to publish a fiction as the first step in my intension to show that the president is mistaken in any of his measures. This raises the question whether the state has the right to interrupt my scheme and charge me with any offence without knowing whether such publication was a once off act or a part of a series of steps that I will take? The interesting part about Section 50 in regard to bringing the president into hatred or contempt is that it does not make any reference to any class of people or persons. Supposing you publish material that is deemed to cause hatred for the president and it is read by people who already hate the president. Then you have not committed any offence.
The same applies to those who already hold him in contempt. This suggests that the state must tender evidence in the form of people who prior to your publication did not hate the president or hold him in contempt, but do so now that they have come across your publication. It will be very interesting to establish the state of mind of any person in this regard before their coming across the publication. Of course we have Section 51 which talks about making preparation to act in a seditious manner. For me this is the problem section for as said above having an intension is not an offence. But can harbouring an intension be deemed to be preparation for an offence? This will be stretching the law into unknown territory.
Imagine a situation where we start being charged with what is in our minds. We will have to have investigators trained to read minds and for some strange reason believe that they are never wrong or will never fabricate evidence. This brings me to the question of what really the state gains by these types of charges. In my view the state opens itself to ridicule and conspiracy theories. For example it is generally believed that the police and the DIS are not on good terms and our president is known to be close to the DIS. What stops the police from making these types of arrests to embarrass the president? What stops the DIS itself from putting pressure on some police to arrest the journalist in order to be seen to be protecting the president in order to serve their own interests? In fact if one reads the supposed excerpts from the DCEC/DIS Director General’s interview one may well ask whether his conduct does not constitute seditious intension on his part. If I am known to be a close and trusted associate of the president and conduct myself in a manner that exposes the person of the president to hatred and contempt, am I not committing sedition?
I mean if through my conduct people believe me to be corrupt and the president is then seen as being unable to act against me, I am exposing him to being held in contempt by some of our people. The reaction of the government to the USA comment on the arrest of Rre Mokone is also seditious. This is because the statement can be read as saying to the world and USA “You let us oppress our people in much the same way that you oppress yours” What I am suggesting is that once the state starts making people look closely at these types of provisions in our Penal Code then it exposes itself to these types of views. Can we be heard to say when officers in government draft and publish statements that put our president in a bad light then it is not sedition, but when private individuals, do it is sedition?
In my reading of the Penal Code there is no exception that suggests that public officers have any immunity from this offence. Of course one might even suggest that given that we are in an election year some in government would have welcomed the reaction of the USA for then they would issue a statement playing to the gallery in regard to some of our people. We all know that sometimes ruling parties go to war during election years in order to have the people rally behind them. This will suggest that the arrest of Rre Mokone had nothing to do with publication of any seditious materials but was rather intended to bait the USA, and that with the USA having taken the bait a message that appeals to out patriotism will be published to rally Batswana behind the current government. If such was the plan then it is fatally flawed, for as one of the Sunday Standard column “Loose Canon” used to say “he liked the Americans”. I believe the USA finances some of our health programs.
Sedition is an offence that we all would be guilty of if there were no exceptions. Can our leaders who constantly say things that divide us tell us why the same charges have not been preferred against them? Public servants regularly provide poor service causing disaffection against the government yet not one of them has been charged with sedition. Ministers make statements on record that have a tendency to cause enmity between different classes of our people but they have not been charged with sedition. In a country that subscribes to the rule of law we are to be treated equally. If what was published by the Sunday Standard constitutes sedition then we should be seeing ministers, permanent secretaries and others in the dock with him. Read the Penal Code not dictionaries when you prefer charges.
