Saturday, June 22, 2024

Botswana’s  libel laws are broken

There is no doubt of the extent to which Botswana’s libel laws are undermining and even killing freedom of speech.

If not taken care of, defamation laws in Botswana will kill not just journalism but also free speech and freedom of expression.

And sadly –  this is very true – the judges are ahead of the mix facilitating that.

There are too many statutes in Botswana’s law books that are by their nature primarily chilling of free speech.

Chilling as these laws are, it is the size of damages awarded against journalists and media houses that are profoundly worrying.

It is like the judges are party to an ongoing campaign by the wealthy behind SLAPP  (strategic lawsuits against public participation) trials to kill the existence of the media in Botswana.

As a direct consequence of that, media houses have been irreversibly weakened. Or simply silenced out of fear.

In fact newsrooms today are weaker than they were during all of Ian Khama presidency.

What we see from outside is just skeletons of animals that existed from the past.

By and large many newsrooms are dead. There are neither skills nor resources left in these newsrooms needed to hold those in power accountable.

Because journalists are badly underpaid, there are several vulnerabilities – for both newsrooms as institutions and journalists as individuals.

Newsrooms are too weak to even defend their editorial positions. They cannot defend what are gags and injunctions placed on them by the rich and the powerful.

Weaknesses of the newsrooms have not undergone unnoticed by the elite and those in power.

They are pushing the boundaries and forever working on taking advantage of it.

There is now talk of newsrooms being hijacked by those with money.

In all these, one thing is beyond doubt.

Damages given by the courts are making journalism unsustainable in Botswana.

As a result public discourse is under threat.

The high costs that newsrooms have to bear as a result of cases brought against them and made worse by the crazy awards given by judges are undermining the still young journalism in Botswana.

There is an ongoing internal debate among the media about these damages.

A number of lawyers too have been alarmed and welcome and joined the debate.

That is commendable.

But we can be sure that there are some senior members of the judiciary who think the media is irresponsible and should be punished with big awards so that it either dies or can be amenable to the official line.

These are the people who think that authority is there to be obeyed and not challenged.

To these judges, what the media is doing by challenging the wealth and those in power is both disobedient and even reprehensible.

For those eager to salvage the situation, there is a mountain to climb.

The Constitution is very basic when it comes to free speech. The limits put on it are too restrictive. And there is too much burden put on the journalists for example to prove a case of public interest at the defamation trials.

In contrast, claimants have an easy ride because all they need to do it to say they have had their reputation damaged, and then keep quiet until a judge orders them to be paid exorbitant amounts by an already struggling media house.

The view here should not be mistaken for defending irresponsible journalism.

Irresponsible journalism cannot be allowed.

There is a way to deal with that.

Reporting in the public interest has to be defended by all of us, including by the judiciary.

Defamation laws, including as created especially by the Court of Appeal should facilitate the growth of responsible journalism.

Admittedly, there are glaring and even shameful mistakes that the media continues to make.

But it would be tragic to throw away the baby with bath water.

The public media in Botswana can very easily redeem itself.

At the moment the one institution that seems to be standing on its way has to be the rich and powerful elite, abetted sadly by the judiciary that is itself hostile to media freedom and with that free speech.

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