Sunday Standard Editor Outsa Mokone is to appear before the Broadhurst Magistrate’s Court on Monday, September 3rd to face a charge of Sedition arising from an article published by this publication in September 2014. Mokone is represented by Carlos Salbany of Bayford and Associates, in his first matter before court after his prohibited immigrant status was revoked by President Masisi in May 2018.
According to the Journalist Without Borders 2018 Report on Media Freedom, Botswana’s international rankings have steadily declined under former president Khama. In 2013, the first year Botswana was ranked, Botswana came in at 40th out of 180 countries. Due to Khama’s persistent attacks on the media, naming it unpatriotic, alleging that the “media and its opposition lawyers” sought to undermine the constitution, the Report found, coupled with raids and arrests of media practitioners and media houses by state security agencies for exposing corruption, that Botswana’s media freedom ratings progressively dropped to 48th by 2017. International reports on Media Freedom have placed emphasis on the Mokone sedition case as a key factor in the drop of media freedom rankings for Botswana.
Mokone faces the single count of Sedition jointly with Tsodilo Services (Pty) Ltd the parent company of the Sunday Standard, arising from an article published on September 1st, 2014, titled “President hit in car Accident while driving alone at night.” The article revealed how former president Khama had been involved in a motor vehicle accident on the night of August 23rd, 2014. An accident involving the president’s private motor vehicle was confirmed to have occurred at night on the same day as reported by the then presidential spokesperson Jeff Ramsay.
As revealed in subsequent court proceedings following the arrest of Mokone on September 8, 2014, former Attorney General Athaliah Molokomme demanded that the Sunday Standard retract the article by its next publication. The demand letter marked “Secret” advised the Sunday Standard that the Attorney General was acting for Khama in a private, as well as official capacity and threated criminal charges against the media house and the media practitioners behind the story, if Khama’s demands were not met. The Attorney General is not authorised by the constitution to act for a president in his private matters, nor does the constitution allow for the President to use state resources to prosecute personal grievances.
In spite of the secret letter of demand from the Attorney General giving the Sunday Standard and Mokone a grace period to consider her demand, Mokone was arrested and detained before the grace period had lapsed, based on a warrant of arrest issued by the Botswana Police Service. Following his detention at Broadhurst Police Station, Mokone challenged the legality of his arrest and the constitutionality of sedition laws at the High Court. At the time of his bail hearing Mokone was represented by Attorneys Dick Bayford, Carlos Salbany and Duma Boko.
Hearing the initial High Court proceedings Justice Letsididi granted Mokone bail and issued an order setting out a time lines for filing additional documents for the hearing of the constitutional challenge on the legality of sedition laws. By agreement between the defence team and the prosecutor the court further ordered that Mokone should not be prosecuted under sedition laws until the validity of the laws had been decided by the Court. Despite the time frames set by the Court the constitutional challenge was only finally resolved by the Court of Appeal in February 2018.
Delivering judgement in 2018, the Court of Appeal declined to determine whether sedition laws were constitutional because they found that the warrant of arrest had been unlawfully obtained by the Botswana Police Service. The Court of Appeal found that the Penal Code imposed a time limitation on the prosecution of sedition of 6 months from date of publication of the article, and that as a result of Director of Public Prosecution not having charged Mokone and the Sunday Standard within that time period it was “highly unlikely” that the State would proceed with the charge, as from the legal documents before the court the State was time barred/prohibited from initiating a prosecution.
Ignoring the advice of the Court of Appeal, the DPP in February 2018, formally sought to charge Mokone and the Sunday Standard with Sedition. Mokone’s legal defence team has objected to the State commencing the proceedings almost 3 years after the publication of the article. On Monday the Sunday Standard and Mokone’s Attorney, Salbany will seek to convince the Court that the State, in line with the Court of Appeal finding, is time barred from continuing with the Prosecution and that Mokone and the Sunday Standard ought to be discharged.
The sedition case against Mokone is perceived by international observers as an attempted abuse of executive authority by former President Khama against the media, who during his tenure defied calls to give press conferences and called the media in Botswana “the home of fake news.” Khama, since the end of his tenure in office has courted the media to advance his aggressive campaign against President Masisi, for perceived personal slights. In a recent interview with the Mmegi newspaper, Khama complained that state media has been instructed not to cover him, forcing him to engage the online publication, Argus Online, for a fee. Last year August the Ombudsman found that Botswana Television (Btv), which is financed by the Office of the President only gave opposition parties 18% coverage compared to 82% coverage for the ruling party. The report was based on coverage of political parties during Khama’s tenure.
Since assuming office, President Masisi has engaged the media, calling for and giving the first press conference to local media by a head of state in over 10 years. President Masisi, alive to the international condemnation of attacks on the media has further engaged the Editors Forum on ways to improve the media and its legal framework. Masisi has also publicly undertaken to engage the media as stakeholders and promote legislation that will avail media practitioners’ access to information as well as to amend the inoperative Media Practitioners Act to meet the international standards of media freedom and governance. Whether the President’s endeavour will be sufficient to restore Botswana’s waning international perception on Media Freedom, only time will tell.
