A number of local media organisations have slammed the Court of Appeal for overreaching itself by making a finding in a matter not before it, when it concluded that the article by the Sunday Standard under the headline “President hit in car accident while driving alone at night,” was “false” and “patently defamatory.”
The Media Institute of Southern Africa (MISA), Botswana Chapter was first to issue a statement Friday evening saying the comment amounted to, “a case of judicial overreach of the worst kind.”
The statement further reads: “MISA notes that the issue of whether the offending article was defamatory was not a matter for determination before the Court of Appeal. MISA notes further that the Court of Appeal has in numerous judgments declined to make determinations and pronouncements on issues that are not before it. Had the truthfulness of the article been an issue in this case, we have no reason to believe that the Sunday Standard would have been unable to answer the criticisms raised against it by the Court if it had been afforded a fair opportunity to fully deal with them.”
The Editors Forum (EF) and the Botswana Media Workers Union (BOMAWU) on Saturday morning expressed support for the MISA position and are expected to issue statements this week.
Handing down judgment at the Court of Appeal on Friday morning Brand JA stated in open court that the Court could not condone the dissemination of what he termed “fake news” and that as a result it was required to comment on the “conduct” of Sunday Standard Editor, Outsa Mokone. The “Trumptonian” term “fake news”, condemned by media and human rights campaigners, was however not embodied in the Judgment.
The Court accepted without having all the evidence before it and on the untested evidence given by the State that Mokone had “doggedly refused to make any enquires” and “persisted in spreading the defamatory story” after he had been told the “true facts” by the Commissioner of Police and the Attorney General. In so doing the court initially found that Mokone knew that the article in question was “probably untrue.” “Probably untrue” suggests the possibility that it could have been true. In spite of the uncertainty alluded to by the Court, it held that “In my view this constitutes irresponsible journalism of the worst kind.”
MISA, the Media Institute of Southern Africa, noted in its Press Statement importance of the role the media plays under a democratic dispensation. As was acknowledged by the Court, the media plays a vital public interest function in exposing “corruption, dishonesty and graft wherever it may occur and to expose the perpetrators.”
The court noted that there is a “general reluctance among courts in many jurisdictions to open the door to the dissemination of false information which cannot serve any purpose other than vilify the victim. That reluctance is not only natural, it is right”. The court did not seek to determine the various legal defined categories of “false information” and how the conduct of Mokone fell into any of the categories.
“Fake news”, a term condemned by human rights and political scientists as being used to curb and undermine press freedom is finding increasing traction in the political arena. Politicians increasingly use the expression when the media exposes adversarial information.
The term “fake news” has specific adverse implications in the use of language, for a free press and for the freedom of expression. The term “fake news” has come to refer to a wide variety of factually incorrect content, from inaccurate news to opinion pieces, parodies, hoaxes, rumours and simple misstatements that may encompass the terms “false news” and “disinformation” for inaccurate content that is spread with intent to deceive.
President Khama has repeatedly accused the media of “fake news” and being irresponsible. Khama’s vilification of the media has been unintentionally supported by the highest court in the country.
Amnesty Internal, the international human rights watchdog has condemned the use of criminal sanction against the media. “A criminal charge for such conduct, even if some might regard it as offensive, is completely unwarranted; nobody should have to go to prison merely because they are accused of causing offense.”
The Constitution and international law recognize the right to freedom of expression, and this right extends to speech that offends or disturbs.
An open and transparent government is best positioned to clarify and provide information under its control and to counter misinformation with actual, correct information. Courts in other jurisdictions pronouncing on media freedom envision such transparency, and protect the press even when it makes mistakes because of the expectation that government will allow access to information. A benefit the media in Botswana does not enjoy. Striking out at the press with nothing more than a bald label ‘fake/ false news’ undermines this central feature of democracy and places the fundamental right to receive and disseminate information at risk.
MISA noted that “Whilst we accept that the media has responsibility to report news accurately, without fear or favour, MISA notes its disappointment with the unwarranted attack on Sunday Standard and by extension the Media generally. It is a historical fact, that the worst acts of corruption involving government officials including that of presidents, exposed by the media, have been met with state sponsored denials. The denials were, after proper evaluation, exposed to have been false, leading to the resignation of such officials. Notable examples are “Watergate”; “Nkandla” and “State Capture” across the border.”
“In many countries, those who dare to criticize their governments, speak on behalf of a suppressed minority, or call for political or economic reforms are often portrayed as “traitors” trying to disseminate hatred and hostility and disturb national stability, such narrative has become increasingly prevalent in the political arena. States that are “equipped” with tailor-made national laws remain on alert to punish those who are courageous enough to challenge their governments by invoking such laws. Such draconian colonial laws are used to silence critics and control and suppress the media.”