A University of Botswana (UB) scholar has condemned the High Court and Court of Appeal decisions in a case in which Sunday Standard editor Outsa Mokone was charged with sedition.
In an article that appeared in a law review journal in April this year, Professor Tachilisa Balule of the law department at UB stated that the High Court had noted that freedom of expression is not absolute and that the Constitution provides a three-part test with which any restriction of the right must comply.
He said the test requires that a restriction must be: contained in or done under the authority of the law; serve a legitimate interest; and be reasonably justifiable in a democracy. The test ensures that derogations from the right are narrowly construed, he said.
Therefore, Balule was not convinced by some of the findings of the High Court and Court of Appeal in Mokone case.
He said: “However, instead of interrogating whether the provisions on sedition comply with all the components of the three-part test, the High Court only considered one aspect of the test: that the provisions serve the purpose of protecting the rights and freedoms of others and their dignity.” Despite the applicant’s arguments that the provisions were unconstitutional because they are vague, the court did not assess the provisions to determine whether they satisfy all the components of the constitutionality test.
He said after considering only one component of the test, the court concluded: “Despite that the sections may be considered by some as unconstitutional and repressive of freedom of expression as enshrined in the Constitution, the sections are, in my view, legal limitations to the said right so as to recognize and respect other persons [sic] rights and freedoms as well as to respect their dignity.”
Noting that Mokone appealed the decision of the High Court, Balule faulted the Court of Appeal for, avoiding to address, “the constitutionality of the impugned provisions.”
He argued that the court has established a general rule that, where it is possible to decide a case before it without having to decide a constitutional question, it must follow that approach.
He said the court declared the warrant of arrest against Mokone to have been invalid and concluded that, “since the constitutional challenge was brought as part of the attack on the validity of the warrant, there was no point in embarking upon a constitutional investigation that would make no difference to the determination of the issues raised.”
Balule said:“The failure by the Court of Appeal to address the constitutionality of sedition laws is inconsistent with the principle it has stated in several cases that the effectiveness of the Bill of Rights depends on the ability of judges to breathe life and relevance into its provisions.”
He said in its decision, the High Court acknowledged that sedition laws had been found to be unconstitutional and repress freedom of expression in other jurisdictions, but then found the Botswanan law constitutional.
“The Court of Appeal should have addressed this particular finding by the High Court, given the negative impact that sedition laws have on journalists’ enjoyment of freedom of expression in Botswana,” he argued.
He said a generous and purposeful interpretation of a provision of the Constitution requires that, when dealing with human rights issues, a court should investigate how similar issues have been resolved in other jurisdictions.
“The court should have explored the reasons why sedition laws have been found unconstitutional in other jurisdictions and discussed the relevance of those decisions in the Botswanan context,” the UB academic said.
He said: “The Court of Appeal’s failure to address the constitutionality of sedition laws is regrettable, because it constitutes a missed opportunity for the court to strengthen the protection of journalists’ freedom of expression in Botswana.”
Balule noted that the Court of Appeal of Botswana has held that, in interpreting the provisions of the Constitution of Botswana (the Constitution), especially with regard to fundamental rights, courts must adopt a generous and purposeful approach in order to breathe life into the Constitution, having regard to its liberal democratic values and, where necessary, the international human rights treaties to which Botswana has subscribed.
“The use of sedition laws against journalists constitutes a limitation on their right to freedom of expression through the application of penal sanctions,” he said.
He submitted Botswana laws cover a journalist’s freedom of expression, because protecting the freedom goes further than the theoretical recognition of the right to speak or write, and includes the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible.
“The three-part test, with which a restriction on freedom of expression must comply and to which the High Court referred in Mokone (case), is found in section 12(2) of the Constitution,” said Balule.
Balule said in his challenge to the constitutionality of the provision, Mokone was essentially saying that the provision fails the first limb of the constitutionality test, in that the definition of sedition is not formulated with sufficient precision to enable an individual to regulate his or her conduct, because it is excessively broad and vague.
“The High Court should have analysed the provisions on sedition, especially the definition, to determine whether they are formulated with sufficient precision to enable individuals to regulate their conduct, and also that they comply with the rule of law,” he said.
Balule said while the judge acknowledged that the provisions have been considered by some to be unconstitutional and repressive in respect of freedom of expression, she concluded that the provisions on sedition are a legal limitation to freedom of expression as they serve to protect the rights and freedoms of others.
“The judge did not address the reasons why others have considered the provisions on sedition to be repressive with respect to freedom of expression, or whether such reasons have any relevance in Botswana,” said Balule. He added that, “ The High Court clearly failed to consider the first limb of the constitutionality test in the case.”
He said had the court considered the “first limb of the test, it could not have avoided concluding that the definition of seditious intention is not formulated with sufficient precision to enable individuals to regulate their conduct.”
The UB academic further argued that Botswana’s definition of seditious intention is wide and vague, and may include legitimate political criticism and thus have a chilling effect on freedom of expression, especially expression critical of government policy.
“The provision can be easily abused to prosecute those who disseminate content that is considered offensive, shocking or disturbing to the majority or state authorities,” he said.
Balule said it must be borne in mind that freedom of expression does not only apply to expression that is favourably received by the majority or state authorities, but also to expression that may be found offensive or not favourably received by the majority or state authorities.
“ In upholding the constitutionality of sedition provisions that are manifestly vague, the High Court failed to uphold a principle that was laid down by the Court of Appeal that derogations from fundamental rights must be given a strict and narrow, rather than a broad and generous, construction to give full effect to fundamental rights,” he said.
He said the case demonstrates a classic scenario of how sedition laws can be easily abused under the guise of protecting an interest that was never under threat.
“The offence of seditious intention is very wide in scope, lacks clarity and does not comply with the legality principle that demands that criminal laws must be worded in strict and unequivocal terms, clearly restricting any punishable behaviour. The definition of what will constitute seditious intention is left to the absolute discretion of the executive and there are no adequate guidelines as to the exercise of that discretion,” he said.
Balule also faulted the High Court for failing to have found the definition of seditious intention unconstitutional for failing to meet this aspect of the first limb of the constitutionality test.
“The High Court found that, on the facts of Mokone, sedition played the role of protecting the rights and freedoms of others. The High Court did not address the other argument raised by the respondents that sedition protects public order, as peddling falsities against the president has the potential to lead to public unrest and disrupt public peace and tranquillity,” he said.
He said although the Court of Appeal of Botswana has consistently urged courts to interpret the provisions of the Constitution in a progressive and purposeful manner, “it is regrettable that the High Court failed to take this approach in Mokone.”
“The manner in which the High Court dealt with the constitutional challenge to sedition provisions is disappointing and hampers the enjoyment of freedom of expression,” he said.