Recently, I happened upon a Radio Botswana news bulletin in which the government set out that there were certain elements of the private press who made damaging reports about Botswana.
I was surprised at what seemed to be a hardening of attitude by the government to the private press and wanted to know what could have caused this. I had the good fortune to come across a government press release which set out the basis for government concern.
Interestingly at the end of the release the government reaffirmed its commitment to freedom of expression. There was also a claim that the government subscribed to the rule of law and freedom of information.
A look at the government press release shows that indeed government had a case. The private press had made certain reports which on the available evidence were not true. The issue though is whether freedom of expression can only be limited to when one tells the truth? I believe it was in recognition of the fact that such a limitation is at best hazy that government sought to get the best it could out of the situation by asserting its adherence to freedom of expression. One must I believe, note that government seems to have come around to accept that enjoyment of freedom of expression can bring certain discomfort to it and that it has to live with that.
This shift in government perspective must be welcomed, for it clearly gives an indication of the extent to which government appreciates the limits on freedom of expression. I think government has come to realize what lawyers have always known, that the law does not protect anyone against all harm, in particular harm to that person’s sensibilities. The law does not protect us against whatever frailties we may have. The law appreciates that at some point we will be hurt and that that is the nature of life.
I am also aware of the remarks made by President Ian Khama at the BDP congress on the media, trade unions and the judiciary. Again here we must never forget that the forum whereat the president made the remarks was a result of his enjoyment of freedom of association. He coupled this enjoyment of freedom of association with enjoyment of freedom of expression. This by any measure is a very powerful combination. Here we have convergence of two freedoms guaranteed by our constitution.
If trade unions and the media are to enjoy freedom of association and freedom of expression in the widest possible sense, they likewise have to extend the same to Rre Khama and those that associate with his views. It would be hypocrisy of the greatest order for the media and trade unions to seek to enjoy these two freedoms in the widest possible sense and then seek to limit Rre Khama when he himself claims the same rights.
At the end of the day what is taking place is a widening of the limits of freedom of expression. In my view widening of freedom of expression cannot be achieved by only one party asserting the right to a wider freedom whilst limiting the other side. The whole basis of fairness is that you should extend to others the treatment that you wish them to extend to you. If you call another person a dictator then you must be prepared to stomach being called unpatriotic by the other. After all in much as you expressed your view of them they have expressed their view of you.
If both parties wish to move away from freedom of expression to a situation where facts are alleged and then proven, and agree that where no evidence is set forth to prove an alleged fact then the other party is to be dismissed we have a situation where one can say that they have moved away from freedom of expression to a limited discussion mode.
In the absence of agreement on such rules we are within the arena of freedom of expression, and to my knowledge there are very few limitations with only the law of defamation according some protection.
The trouble is that very few people want to accept that assuming a public posture is a minefield, and those who place themselves in a situation where they are likely to attract expression of opinion about them must be prepared to hear all sorts of strange things being said about them. After all no one forced them to become an object of public or private opinion, they presented themselves.
A government leader, trade union leader or movement, a media outlet or practitioner, a judge all made conscious decisions to become those things and their trade is in the public domain. It would be very strange to say that one wants to move in the public domain, affect other peoples’ lives and retain the right not to be commented about.
Life is not just about those who move in the public domain doing their thing. Every time that a public figure or movement acts it affects other people either physically or emotionally, and activates the thought processes of that person. Every person has the right to seek and to understand events and occurrences around them and to have a view and express the same. I am not aware of a law that says having understood events or actions of public figures or movements you are to keep your views to yourself.
We are told that law has both content and context. The content is the legal principle and the context the facts. Freedom of expression as a legal principle does not exist in a void. Life provides context to this principle. That is why what would not have been acceptable some years ago may be acceptable now.
I remember a story about Sir Seretse Khama having said to Rre Matante that he could order the police to shoot him and that they would carry out the order. In their day such a remark could have been acceptable but it would most definitely be looked at differently today. Even now in a discussion on presidential immunity such a remark may be acceptable for emphasis. The discussion would provide the context for the ambit of the legal principle.
It is instructive that both sides claim to adhere to the principle of freedom of expression. They only differ in terms of the ambit of the principle. It would be very strange if the two sides were to agree on a principle which largely imports subjectivity to the issue. There is hardly any objectivity involved in freedom of expression.
The law of defamation imports some measure of objectivity, but where the parties do not seek to base their argument for limitation of defamation I submit that there is no room to base any exchange of views about each other on objectivity. Effectively in freedom of expression both sides can talk what the other may think is rubbish about the other. They can then seek to influence public opinion, whatever that is, but they also take the risk of the public dismissing both sides, for the public retains the right to make pronouncements on whatever public figures and movements articulate.
It is difficult to see how someone enjoying their freedom of association and freedom of expression to express views about the judiciary can be said to be a threat to anyone or any organization. The judiciary does not exist in a void or another world. It impacts on peoples’ daily lives and it would be strange to argue that there are certain areas of our lives on which we have no right to express an opinion.
A look at decisions of the courts, in particular murder cases or other criminal cases, will show that the judiciary often suggests that it wants to express society’s distaste for certain crimes or the frequency of their occurrence.
Surely this suggests that the judiciary listens to what society says. If we hold otherwise, then it suggests that the judiciary is being dishonest and is misleading the people. I am not aware of a process through which the judiciary solicits society’s views. I also know that judges do not readily mix with the wider spectrum of society both for their own safety and to protect their integrity.
One avenue for communicating views to the judiciary is through the public domain. It would be stretching the law too far to suggest that publicly expressed views are an assault on the rule of law. If the judiciary and the state do not want to have publicly expressed views about it, then it should say so and provide a legal basis for its position. In a modern state there is no room for claimed honesty and equal treatment before the law. The law only has rebuttable presumptions.
Modern psychology shows that human beings are complex creatures, some can be brilliant but downright corrupt.
