As party politics take centre stage in newspaper pages, I would like to turn my attention to other issues that may get overlooked. I wish to address myself specifically to the motions mooted in parliament regarding the media, being the repeal of the Media Practitioners Act and the Freedom of Information Bill. First, let me acknowledge the importance of the Freedom of Information (FOI) law.
It will encourage transparency in governance and help reveal certain secrets which the public legitimately needs to know. In short it will promote citizenship.
It is not only a law meant for the media as other interested parties can use it. The Democratic Alliance in South Africa uses it so well to put the ruling ANC on its toes. However, quite often it is mostly used by the media to make public officers and politicians account, hence MISA rightly supports it. However, I have a problem with the current context in which it is being debated in Botswana, especially that both MISA and almost all the opposition parties want it passed as an alternative to the Media Practitioners Act (MPA) 2008.
I know mine might not be a popular or populist position, but academics have a duty to society to argue and explain issues however unpopular, especially when articulating issues within their expertise.
I understand Hon Ntuane, a media studies graduate from this very campus that I am writing from will table a motion pleading for the repeal of the MPA.
I think this is a wrong approach. The MPA is flawed in certain sections but not in toto. Nonetheless it is fundamentally wrong to repeal such an important law and replace it with a totally different law. For instance you cannot repeal a law that deals with police powers and replace it with one that deals with immigration.
The two are not mutually exclusive but my opposition friends and their media allies are doing exactly this. The FOIA does not cure the mischief that the MPA sought to cure.
I know there are those in the media camp who hold the view that there is no mischief to be cured. This is unadulterated trash and selfish interest. The media is an institution that exercises enormous power and as Feintuck and Varney (2006) remind us, democracy is a system where by nature all power is limited.
The media cannot operate untrammeled. To claim otherwise is flawed ab initio and is a recipe for disaster. Whoever thinks the media should not be touched does not understand democracy. Yes, governments often oppress the media but as Prof Fiss (Yale Law School) once said, we must not always fault government. There are a few factors that cloud the issues and explain why some MPs are throwing caution to the wind.
The BDP, which I have opposed for many years, (and paid the price for that), has incessantly abused the media for decades and this has worsened recently, I gather, with increased factionalism and the formation of BMD.
The public sees this and is seething with anger and the private media is feeding on this and exposing it, as well as other abuses of power. The media is then seen as a Messiah. And understandably so. The opposition sees this as a real chance to come to power and therefore is courting the private press, whose services they need to communicate their messages.
They sing from the same hymn book. In the process, the two fail to see things objectively and forget their two different roles, which are adversarial by nature. Their vision is dazzled. May I caution that being in opposition is not the same as being in government and the honeymoon with the media is temporary?
Just ask the ANC and Labour party cadres here in England. Frustration with the BDP should not lead to enactment of laws that will haunt the very people who passed them once they are in government and indeed the innocent public. My contention is that these laws must be enacted in consonance with public policy. Finally, and one of the reasons why a law like the MPA becomes necessary is that our press is heavily partisan. By this I do not mean allied to opposition parties but certain politicians and individuals in our society. Careful newspaper readers will have noticed that certain politicians and other powerful elites have their boys and girls in the media who do their bidding.
I call this interpersonal hegemony. Whilst some people pay for advertising, some of these people have always enjoyed support of their chums.
Take for instance some of the morbid revelations about my homeboy the late Molengwa Louis Nchindo. He had a small coterie of boys and girls with whom he dined and wined and took on expensive trips both locally and internationally and this was accordingly reciprocated. An aide of another tycoon once told me that he had boys in the press that he paid to do his bidding.
Brown envelope journalism, as it is commonly practised in Nigeria and Cameroon (Ukpabi, 2001) is therefore taking place in Botswana but perhaps not in the scale of those countries. Dr Z. Kebonang too lamented this in a conversation with me last year. You now begin to see the importance of regulation.
You don’t wait for a problem to escalate and then you legislate. The other interesting incidents that come to mind include the reportage of D. Gaetsaloe as a litigant versus Key Dingake, the reportage of the feud between CBET shareholders (owners of Mmegi/Guardian group), leftist members of the BNF, and the reportage of VT Seretse whilst he was heading BTC and so on.
I also remember how Hon D. Saleshando was once humiliated in a newspaper editorial way back when he was just a spokesperson of the BCP. It is interesting how things have since changed! One could do a telling discourse analysis of all these stories.
I am aware that certain intellectuals in Botswana argue that the allocative efficiency of the market can be used to deal with these incidents. However I would argue that it is wrong to base journalism on consumer sovereignty as this goes against the spirit and very nature of journalism (McNair, 1998). The other thing that those who want a hands free approach to the media forget is that the media is a business. Nobody ever opens a newspaper or a radio station because they love the public or love freedom of expression so much.
It is a business and that is why there is a favouritism extended to kith and kin. Regulation of ownership is done to limit this power. The MPA deals with this well and the Draft Botswana Broadcasting Policy. The Act makes a nice link with the Competition law. My suggestion is that the MPA should be amended carefully and not repealed. We should not pass laws to appease certain sections of society for the blandishments they pour on us or the damage that they will do to the BDP.
Laws are not items of clothing meant to suit the contours of someone’s body or weapons with which to hit an enemy. They must be designed with a vision to serve us and posterity well, for many years to come. In the UK right now they are still crying over the enormous, unlimited power that the abusive self-regulating press enjoys. They took the route that we are intending to take.
And initially this did not happen by design. In the 17th century the Cromwell regime abused regulation of the press and it was discontinued. In the 1970s at the height of Tory power under Thatcher, the government resisted all calls to pass statute to deal with the baron owned Tory supporting press and the result is a rich, arrogant and abusive press.
Freedom of expression advocates like Clive Soley MP, Jeff Robertson QC and others had to form a lobby group for a Right of Reply in the face of this arrogance but the Tories refused to budge. The UK Press Council formed in 1953 was itself a humble compromise of the post war Atlee government (Labour party) and a result of a journalist lobbied motion!
So we can clearly see the danger of an unregulated press. Various scholars have written about the futile self-regulation of the Press Complaints Commission [PCC] (Shannon, 2001, Coad, 2003, 2010). Coad in particular, as a lawyer who has over twenty years experience representing clients before the PCC details heart-wrenching accounts of how the body has entrenched itself as, all powerful, arrogant, partisan and recalcitrant a monster that fights only to protect the interests of the press.
It’s role is conflictual as it seeks to protect the press and adjudicate at the same time.
If anybody thinks that the media in Botswana is going to remain small and innocuous they are wrong and do not understand the laws of capital. The US is in a similar mess because of their constitution and the media is more powerful than the politicians and the politicians account to it rather than to the people.
And may I add that to insist on voluntary self-regulation is defective. This is an ahistorical, self-seeking neo-liberal argument. Anybody who seeks to contradict me on this is welcome as long as they present a scholarly argument predicated on research and not their personal desires.
Co-regulation, a variant of self-regulation, is the way to go. The much vaunted Legal Practitioners Act and the Real Estate Professionals Act are examples of that.
The media super-regulator here, Ofcom regulates advertising and broadcasting in the UK this way.
It is actually incorrect to say the Law Society of Botswana self-regulates because it co-regulates with government. It is the Registrar who keeps and maintains a roll of practising attorneys in Botswana, who in any case are admitted by the High court and not the Law Society.
It is still the register who actually issues the practice certificate in terms of Section 30 and also administers the oath of office. The minister is empowered by Section 47 (3) to increase the number of members of the Disciplinary Committee of the Law Society of Botswana should the need arise.
Section 54 confers power on the Chief Justice to make regulations which may include setting allowances for members of the Disciplinary Committee or charges to be levied by the Registrar. This is done in consultation with the relevant minister.
Finally the minister has power to make regulations as well, relating to fees levied on foreign advocates admitted to practise in Botswana and regarding fees levied under Schedules Four (fees payable on admission and enrolment) and Five (annual fees for practising certificates) of the Act.
However, the Council (subject to special resolution of members of the Society) may also make regulations (Section 72 (1). You need to limit the power of the media (and of course not through draconian laws) before you give it more power in a FOIA. (You don’t create a situation of power without responsibility). To do otherwise is to put the cart before the horse.
I don’t have space here to deal with the main problems presented by the MPA but let me just mention a few in no detail. Its objectives are conflictual as it combines freedom of expression with complaints’ redress.
It therefore fails the citizenship test but this deficiency is also found in the Notarial Deed of Trust establishing the Press Council in 2001. Executive power as exercised by the minister should be limited and not necessarily precluded as it is a thread that runs across Botswana’s regulatory statutes, like the two that I have mentioned. Finally government must relax a bit on right of reply as to allow editors to exercise judgment but must retain this clause. I call on minister Motsumi to move speedily and organise a lengthy consultative workshop where media scholars, legal scholars and interested members of the public can thrash out these issues and scholarly papers can be presented on the MPA and the way forward. Those who argue these issues must argue authoritatively and not feed us with platitudes and polemics.
Our government too should learn to listen to its people. There is no point spending so much money training them and then waiting for a white man to come and tell you exactly what your people have told you.
The court is an important arbiter but it does not have the capacity to deal thoroughly with matters of this nature which are political. I do acknowledge that regulation is a complex technical area and none of the political parties seems to understand it well. It goes beyond writing a story in a newspaper but involves, abstract legal, political and sociological formulations.
Government would have done well to get expertise input as they did with both the Competition policy and law. The UB law department must also speedily introduce regulatory courses (including Competition Law) and respond to the market needs.
In the 1980s when the UK privatized their public utilities, they also struggled with trial and error but a good number of universities, including mine, have filled the void.
Letshwiti Batlhalefi B. Tutwane Centre for Mass Communication Research and Law School University of Leicester, United Kingdom
