Recently, there have been reports of an appalling death, a devastated family, condemnation and calls for justice. There have also been allegations of presidential complicity in what is perceived as a killing by agents of the State. The local newspapers have each taken this as an opportunity to publish an account, which some may argue they have done without any honest belief that it was truthful or was written with reckless regard for its truth or untruth. The President (reportedly) instituted legal action, although this was later “abandoned”. I want to say, to begin with, that journalists and newspapers are at liberty to inform their readers about the deeds and misdeeds of the government, without the haunting spectre of court action. I am convinced that in this country critics of official conduct, be they journalists or the public at large, are guaranteed the right to free speech by the Constitution, no less so (as some might argue) where false defamatory statements have been uttered against their elected representatives. I should go as far as saying that to hold otherwise would effectively be to suppress or punish public criticism. No doubt this will cause delight among the journalists, rage among politicians, and consternation among the public.
How would the courts have ruled if they were given the chance to judge on the President’s legal action? The question is not asked to open up old wounds. Rather, there has been little or no attention paid to it. Similarly, no one has defined “extra judicial killings”. Instead, attention has been focused on how the state should be run and the condemnation of official conduct. This was precipitated by, and advantage was taken of, Kalafatis’s shooting. The journalists and newspapers have delved into this matter with intrusive rigour; they have applied it in building the perception that democracy and the rule of law are in crisis. The treatment of the shooting by lawyers and village heroes as well should be understood as an extension of this “siege” mentality, though a few have remained aloof from party politics. In short, the late Kalafatis has become a pawn, posthumously.
It is no part of my business to examine the truthfulness of the allegations concerning Kalafatis’s death. I do not desire any indulgence from the reader than that of referring him to the pages of local newspapers; some of them of recognized eminence, others of highly questionable value. My business will be purely intellectual. I am preoccupied with approach, not verification. And everyone will be able to judge and compare for himself. The reader who thinks I am being prescriptive or manifesting bias is without doubt mistaken and I do not desire any other indulgence from him than that of bearing in mind that for him this article was not written. Let me return to the right to free speech. Is it without limitation? What are the limits of acceptable criticism?
International jurisprudence indicates that “the limits of acceptable criticism are wider as regards a politician than as regards a private individual.” Thus a journalist will be held to have injured a private individual where similar defamatory material would not result in liability if published against, say, a President, a Minister ,or a parliamentarian. Is this a carte-blanche? No. If a journalist or a newspaper, having published a false and defamatory statement, fails to establish that he or it was unaware of the falsity of what was published, that he or it did not publish the material recklessly, and that the publication was reasonable in the circumstances, then he or both will be held liable. I will demonstrate why the President was entitled to sue. When the police receive a report of the death of any person which appears not to have been due to natural causes, an investigation will be made into the circumstances surrounding the death. If the investigation gives rise to a reasonable suspicion that the death was caused by the criminal act or negligent conduct of another, the matter is referred to the DPP, who will take such action as she considers necessary. The DPP is vested with the right and entrusted with the duty of prosecuting any offence committed. She may bring criminal proceedings against any person, or discontinue the prosecution by her or that begun by another person or authority. These constitutional powers are exercised by the DPP to the exclusion of any other person or authority. In exercising these functions, the DPP is not subject to the direction or control of any person or authority. The Constitution reinforces this by denying the President authority to dismiss the DPP.
A cumbersome legal procedure must first have been strictly adhered to for an effective dismissal. This speaks volumes. Again, it is the DPP who directs that an inquest be held, or that no further steps be taken. She can also take measures she thinks expedient in the interests of justice. No doubt the Attorney General will be consulted in appropriate cases, but unanimity is not required. Where there is reasonable suspicion that death was due to the violent act of an unknown person or persons, an inquest must be held by a magistrate. Witnesses will be called to give evidence or produce documents, on pain of penal sanctions. If the magistrate thinks the death was due to a criminal offence by a known person or persons, they will be arrested so that criminal proceedings may be instituted.
Otherwise, the magistrate sends the original inquest record containing his opinion to the High Court, which, in turn, must submit it to the DPP. I shall not deal with the private prosecution, except to say that any of the deceased’s next of kin may prosecute where the DPP declines to do so. In sum, these statutory requirements cement the DPP’s independence and control of the criminal justice system. It is of great importance to grasp that the law in its practical application is not as inefficacious as what some lawyers have led the public to believe. The final word belongs to judges. A simple enquiry by journalists, and this information would have come to the fore. Putting aside the question whether or not the newspapers were unaware of the falsity of the material they published, I cannot fathom why, ostensibly, they failed to carry a reasonable verification of the facts.
This is because it is hardly the province of the media to presume to conduct a reconstruction of the circumstances surrounding the death of a person. This must be the business of the government. The media is well aware of this. To give credence to their claims e.g. for media practitioners, the press briefing by Ministers Seretse and Venson-Moitoi provided an opportunity to raise doubts that the two might have contributed to or provided for a situation in which a blanket of secrecy covered the true facts. What should the public make of any claim that the body of information placed in the public domain is false? Is there any attempt to cover the true facts? First, Seretse publicly announced the government’s intention to launch a full investigation. Second, it is inconceivable that the true facts would already have been made known to Seretse and Venson-Moitoi, since that is the purpose for an inquest. For either Minister to have released details publicly without first informing themselves of the true facts would have been reckless and prejudicial. Third, it was reassuring to the deceased’s family that Seretse should commit the government, as he did. Seen from this angle, the public interest completely coincides with the interests of the family. A motive which weighs with me more than others related here is the role of lawyers.
Law is not an exact science. However, few can dispute that it is based on logic and reasoning, though an occasional dose of sophistry is not unknown. It can be argued that sophistry is a close cousin, judging from some of the savage invective advanced in support of “extra judicial killings” (whatever this phraseology may mean). I do not mean to engage in effrontery to my fellow lawyers or to pontificate about how they should approach certain issues, but you could deduce from the long loud doleful cry uttered by some the calling into question the legitimacy of the criminal justice system. Of course, lawyers are also entitled to condemn abuses of human rights; they may engage the government or even the courts in their magnanimous endeavours. But I want to caution those lawyers who seem to take for granted the monopoly of representation and access we have been privileged to enjoy as lawyers. The truth is that the special privileges extended to lawyers require the government putting special obligations upon us to speak in a certain way or to remain silent under certain circumstances. Lawyers must take cognizance of the extent to which they lose the freedom of action or non-action that ordinary citizens have. While some lawyers may benefit from their puerile behavior, many others might be harmed due to what commonly passes as village heroism. If the criminal legal system is flawed, lawyers ought to show the direction in which a solution may be sought, one that may in time prove useful. The first step towards the solution consists more in drawing attention to existing defects and less in intemperate language; nor in resting content with a lazy skepticism, as bedevils the Law Society. Their press statement recently suffers from three defects: it is presumptuous, unsubstantiated and self-contradictory. I shall not deal with the analysis.
However, the expectation of the legal profession in a democracy is that occasionally it will extol those in power about the virtues of open and responsible government, and adherence to the rule of law. It is not the business of lawyers to prejudge. In conclusion, it cannot be denied that democracy in this country has not been completely achieved, but only to one or varying degrees. However, those who strive for further freedoms always overstate their case, so that their converts are led to believe democracy can achieve far more than, at present, there is good reason to expect. This is because the successes of democracy in Botswana have been forgotten, just because the evils it has cured are no longer there to cause indignation. Let us always bear in mind, therefore, that if doubts about democracy and the rule of law are to be removed, we cannot fail to give principled answers to those who ask of the nature of state power, and the conduct of public officials in the performance of their functions.