Wednesday, January 22, 2020

Dick Bayford – A rebel with a cause

In a humble disposition and response, Bayford asserts his receipt of the coveted award to all in the media industry, including the media houses that have relentlessly retained him as their lawyer when faced with the notorious defamation suits at the country’s various courts of law.

“Receiving such a coveted prize was a humbling experience. It marked a defining moment in my career as a media activist. It, however, led me to deeply introspect, leaving me with a feeling that perhaps the proper recipient of the award was the ordinary men and women of the media who, despite an unfriendly legislative and institutional environment, are still able to bring news and information,” is the apt answer Bayford proffers in response to how he felt when he was awarded the coveted prize alongside Patrick Van Rensburg.

In fact, the two gentlemen are the first recipients of the award in Botswana’s media history.

However, it is equally important to trace Bayford’s affinity with the media industry, which he answers in that the right to freedom of speech and expression is one of the basic fundamental rights recognized as constituting one of the essential foundations of a democratic society; one of the basic conditions for its progress and for the development of everyone of its members.

“As it has been stated occasion, this right is the matrix, the indispensable condition of nearly every other form of freedom. It expresses the fundamental precept of a constitutional democracy. The media occupies a central role in the advancement and enjoyment of this right. This explains my affinity the media,” answers Bayford with a wry smile across his face.

His legal training has also played an integral part in his media activism as he explains that freedom of expression of which media freedom is an integral part is enshrined in the Constitution of Botswana and other laws.

To him, the relationship between media freedom and the law is symbiotic and therefore a progressive interpretation and application of the law becomes an indispensable tool in advancing, protecting and nurturing media freedom.

“Owing to my conviction to champion media freedom, the focus of law practice has over the years shifted towards media related litigation. Currently, I am retained as legal representative of three major media houses in Botswana,” enthused Bayford.

There are however are number of issues that concern Bayford with regard to the media, especially the private press which he says has a long and impeccable tradition of boldly speaking out on issues of public issues while history is replete with instances where government has made inroads to curtail press freedom.

To this end he demonstrates the curtailment by examples citing that in 2001 the Office of the President instructed all government ministries, departments, parastatals and private companies in which government is a shareholder to cease all advertising in the Botswana Guardian and Midweek Sun newspapers.

He is however elated that the decision was later frowned upon by the High Court despite that it had placed the newspapers in a precarious financial position.

“It will be recalled that the government decision came after the newspapers accused the then vice-president Ian Khama of abuse of authority. In November 2001, the government published the Mass Media Communications Bill. This bill proposed inter alia to establish a statutory Press Council that would have been appointed primarily by government. The Mass Media Communications Bill was a precursor of the Media Practitioners’ Act, which generated tremendous disquiet within both the local fraternity and the international human rights lobby,” said Bayford.

On what he thinks should be done to free the public media from government control, Bayford said the problem is that the public media in Botswana has not been corporatized. “The desirability of a public media institution functioning independently of state influence, particularly with respect to news coverage, cannot be gainsaid as a model in a functional modern democracy.

“The public media in Botswana has over the years suffered a fissure of systemic control by government in terms of news coverage. Owing to this culture of control, people working for government media houses tend to perceive themselves as government employees first and foremost and journalists second,” said Bayford.

He added that the mainstream Botswana political opposition has resolved to boycott Btv current affairs programme “Matlho-a-Phage”, citing political interference by government in the manner the programme is conducted.

In his view, it is high time that the country considered comparative best international practices designed to afford the public media more independence and public credibility.

With regard to the Media Practitioners Act, Bayford said in the form in which it is presently couched, it is media unfriendly and therefore democratically undesirable citing objectionable provision in the Act such as those requiring journalists to be recognized and accredited, upon threat of criminal sanction and providing for the establishment of committees to handle complaints against the media, which are not independent of the state.

Other provisions of the Act that Bayford takes gripe with are those obliging the media to publish replied from members of the public at the request of persons about whom the media has reported and with the same prominence as the original publication.

“The Media Practitioners’ Act impacts negatively on freedom of the media and ought to be challenged at all levels. I am currently engaged with Southern African Litigation Centre, a regional public interest litigation support organization based in Johannesburg, to mount a legal challenge against this legislation,” said Bayford.

The other issue that does not escape Bayford when he addresses media issues is the Freedom of Information Act which government has been reluctant to enact or promulgate because in his view, freedom of information, particularly access to information in the coffers of public authorities is a fundamental element of freedom of expression which is indispensable to the proper functioning of a democracy.

It deeply hurts Bayford that for a long time freedom of information has been overlooked by the Botswana government, which has entrenched in its dealings with the media a culture of secrecy while the media has routinely been denied access to official information which in a democracy they are entitled to receive.

He said a system that hampers free flow of information stifles the democratic process. “The economic and social development of citizens is frustrated as they are not able to fully and effectively participate in the process of governance. They are unable to make informed electoral choices and expose corruption, particularly that which is committed by the elite.

“On the other hand, the rulers end up leading an ignorant, ill informed or misinformed citizenry, the result of which is being depravation by government of informed feedback. A hindered free flow of information is inimical to freedom of expression and media freedom. The media ends up operating in a rumour infested environment and this presents a real challenge for accurate and reasonable reporting by the media,” argues Bayford.

In agitating for a freedom of information act, Bayford starts by paying homage to Member of Parliament for Gaborone Central and President of the Botswana Congress Party Dumelang Saleshando for having recently tabled before parliament a private member’s bill on freedom of information and credits the elegancy with which it was drafted.

Article 19, an international freedom of expression lobby group, has conducted an analysis of the Draft Freedom of Information Bill ahead of its intended presentation to parliament. In its reports made in May 2011, the organization expressed its support for the draft law “as it marks a positive step towards effective protection of right to information in the country.”

However, Article 19 noted that there a number of fundamental weaknesses in the draft bill. Firstly, the bill does not make provision for establishment of an institutional oversight mechanism, such as information ombudsman or commissioner. Secondly, the draft law does not apply to the judiciary, the president and Commission of Enquiry appointed by the president. Thirdly, the bill contains a long and elaborate list of documents that are exempted from disclosure.

Bayford says he fully subscribes to Article 19’s recommendations calling for insertion in the bill of provisions relating to establishment of information ombudsman or commissioner, to resolve disputes concerning right to information.

And further that the draft law should cover all branches of government and all public bodies including commissions of enquiry appointed by the president and finally instead of the long elaborate list of exempted documents, the law should provide that information may not be exempted unless the legitimate interest protected is greater than the public interest in disseminating the information.

“Although the move towards freedom of information legislation in Botswana is commendable, the government’s directive (made in September 2011) to all public servants that they sign a declaration committing them to secrecy is antithesis of the gesture. The directive brings to question government commitment to the ideal of the right to information,” argues Bayford.

Other issues that greatly worry Bayford is the litigious obsession of the public against the media and to this he says most of the cases against the media going through the courts are instituted by those holding positions of authority in public life.

“It appears as if such people believe that owing to their elevated social station, it is more the reason why the media should not report on their conduct. The gradual spike of media related litigation is buoyed by judicial and executive attitude towards the media. Defamation awards are astronomical. On the other hand, the executive, particularly that of the current regime, consistently conveys the message that the media is indisciplined,” said Bayford.

He illustrates this attitude by Khama’s inaugural speech when introducing his four D’s blueprint on governance that dealt with the issue of the media under the “discipline” category, contending as he did that the media is indisciplined.

He advises those in the industry to take full cognizance of the pitfalls and occupational hazards they operate under adding that it is important that facts be checked before going to press.
“Reporting must be balanced and if possible, subjects of stories being covered must be given an opportunity to reply,” advised Bayford.

Back on the issue of quantum, he observed that recently a certain judge of the High Court privately lamented that damages in defamation cases in Botswana are high. “I cannot but agree with him. Much as the courts are required in defamation cases to balance the right to reputation with freedom of expression, with due respect, it appears that judicial attitude in such cases is more skewed in favour of the former. The courts have repeatedly stated that high defamation awards have a chilling effect on freedom of expression,” said Bayford.

He said he hoped the courts do not pay lip service to this lofty pronouncement adding that the courts in South Africa were more progressive in upholding freedom of expression – the matrix of all rights.

He said recent decisions demonstrated a shift away from excessive commercialisation of defamation litigation, towards a restorative justice approach founded on the spirit of “ubuntu” or “botho” and under that concept the courts of that land have in proper cases promoted the tendering of apologies to those defamed in lieu of awarding damages.

“It is my ardent hope that such progressive thinking is infused in judiciary,” concluded Bayford.