Tuesday, September 29, 2020

“An idiot’s guide to the Media Practitioner’s Bill”

We must appreciate that the reason a Bill is published is to get public comments.

To restrict oneself to blanket condemnation or approval of the proposed law without reference to particular provisions of the proposed law is to fail to fully exploit the opportunity before us.
I will, therefore, deal with some aspects of the proposed law in an effort to make us appreciate what is defective and what is positive about the proposed law.

Our constitution guarantees freedom of expression but makes allowance for laws that are reasonably required in the interests of defence, public safety, public order, public morality and public health. It also makes allowance for laws reasonably required for protecting the reputations, and rights of others and the private lives of people engaged in legal proceedings. There is also allowance for laws regulating technical aspects of telephony, posts, wireless, broadcasting or television.

Our constitution also allows a party aggrieved by any provision or thing done under that provision to have it set aside on the basis that the provision or the thing done by virtue of that provision is not reasonably justifiable in a democratic society.

It is with the above in mind that we should interrogate the provisions of the proposed law.

The memorandum of the proposed law states that its purpose is to establish a Press Council to monitor the activities of the media and to ensure maintenance of high professional standards. We are not told how monitoring advances any of the limitations placed on freedom of expression. I believe it would be helpful if this were clearly set out.

Maintenance of high professional standards is also not placed within the limitations imposed on freedom of expression. My analysis of this proposed law may be complete and utter rubbish and unprofessional, but in terms of freedom of expression I am entitled to publish my nonsense without any restriction. The requirement of high professional standards has no basis in our constitution.

I have no working knowledge of the media organizations, but I believe the proposed law is a bit confusing. The law does not make a distinction between a publisher, an editor, a journalist and a contributor of articles. I hold the view that such a distinction must be made. The definition of media practitioner is too wide and does not reflect the situation on the ground. An occasional contributor like myself is treated as a media practitioner.

In terms of the constitution, freedom of expression includes freedom to communicate ideas and information to the public. There is no restriction on the mode of communication. In terms of the proposed law a media practitioner is a person engaged in writing, editing or transmitting news and information to the public. We are effectively being told that if we wish to communicate in writing to the public then we are media practitioners. This is complete and utter rubbish.

The proposed law does not define what the media is. Such a definition will expose the difference between the medium of enjoying freedom of expression and freedom of expression itself. Once this distinction is made it is not difficult to see why the definition of media practitioner violates Section 12 of our constitution.

The requirement of registration and accreditation relates only to the reporting of events and occurrences in Botswana. It is however odd in that it seems a person who is otherwise a media practitioner in terms of the proposed law is prohibited from reporting on events up an until he is registered and accredited. It fails in my view to note that the limitations placed on freedom of expression relate to the substance rather than the source. To place limitations on sources or those who can enjoy freedom of expression is to fail to understand the nature and substance of freedom of expression.

In terms of the proposed law a media practitioner cannot report on any event or occurrence in Botswana. This is such a wide extent of issues that it borders on madness. We are effectively being told that a media practitioner cannot report on his observations of a Minister’s limited or no understanding of freedom of expression unless he is registered and accredited. A media practitioner cannot report on the sleeping patterns of Members of Parliament during debates of Bills if he or she is not registered.

The way the law is couched reflects frustration with the extent of freedom of expression. It betrays government’s awareness that freedom of expression is effectively limitless. It is a lazy and futile attempt at limiting freedom of expression. It is a failure to realize that one can rubbish even the constitution itself, the power that parliament has and that the executive wields. One can even advocate elimination of the unitary state and replacing it with a federal state under protection of the right to freedom of expression.

It is not difficult to see why the definition of media practitioner is so wide. Every individual enjoys freedom of expression. The law tries to counter this by attaching a label to those individuals who actually partake of this right and then tries to restrict their numbers. It is like a small child trying to wrap her arms around a large tree’s trunk.

In terms of the constitution restrictions on freedom of expression can be imposed on public officers, employees of local government and teachers. The proposed law seeks to increase this list without amending the constitution. This is not sustainable.

The proposed law seeks to deprive individuals who become media practitioners by virtue of their employment the opportunity to enjoy their constitutionally entrenched right to freedom of expression. This is not sustainable given that the constitution already sets out those whose right to freedom of expression may be restricted.

The proposed law is an attempt at censorship. It seeks to achieve censorship by targeting particular groups or classes of people. Even promoters of censorship will find this approach ridiculous. Censorship prohibits publication of particular content; it does not limit people by classifying them.

Publishers of news and information, and any person with a legitimate interest in the development of the media industry, make up the Press Council. We are not told why this restriction on membership to publishers. After all the definition of a media practitioner is wider than this. We are also not told what constitutes a legitimate interest in the development of the media. How will the publishers determine this? This type of Press Council does not reflect the structures inherent in the media industry. It is flawed and needs to be restructured to reflect the different players in the media industry.

Political parties publish propaganda and information. In terms of this law they will be entitled to be members of the Press Council. So too will be chain stores that advertise specials every week. These institutions are quite obviously not suitable members of a Press Council.

Even religious organizations which publish information on their respective religions will be entitled to be members of the Press Council. One can even see a situation where these bodies become members of the Press Council but do not register and get accredited because they have no interest in the reporting and coverage of any event or occurrence but participate in the formulation of the Code of Ethics.

Voting at the general meeting is also flawed. Both members and associate members are entitled to vote. This is odd given that the quorum is determined on the basis of membership of the Press Council.

The Minister appoints the Complaints Committee that consists of a chairman who shall be a member of the public. The proposed law is silent on what relevant qualifications this member of the public must have. There are also eight representatives of the public who have a serious interest in the furtherance of the communicative value of the media. The proposed law is silent on what this means. This type of discretion on the part of the Minister is obviously not reasonable. There is need for the public to have a say in these appointments. How else can the issue of representation be determined?

The Minister also appoints the Appeals Committee. This will have a lawyer, a member of the public and a representative of the media. The proposed law is silent on the qualifications of the member of the public. This is not acceptable. There should also be public hearings for determining the membership of this committee.

The Minister’s power to dissolve the Executive Committee is a bit exaggerated. It is founded on one ground; failure to submit the annual report. There is however no restriction on re-election of the same committee. There is need to provide that the report be approved by the Press Council, and that it be submitted within six months of the end of the financial year.

The proposed law is however not all doom and gloom. The Code of Ethics will be formulated by the Press Council and does not need the Minister’s approval. A Press Council, made up by relevant stakeholders, will through this process result in appropriate self-regulation.

The proposed law also empowers the Press Council to take into account whether conditions for effective competition exist. The private media has for long complained about unfair competition. This law affords an opportunity to rectify the situation. The only limitation is that the law requires the Press Council to refer issues of competition to the relevant authority. The Press Council may impose penalties on parties involved in anti competitive conduct. There is a need to have a transitional provision that will ensure media practitioners enjoy the benefits of this provision even in the absence of a competition authority.

The proposed law treats events and occurrences as discrete and not part of a process. This obviously does not reflect reality. A journalist who has been making investigations will find that he first has to get registered to report on his investigations.

Recently the Minister was reported as having officiated at a ceremony regarding the relationship between GTV and eTV, and stating that such a relationship was in accordance with government’s policy on citizen economic empowerment. Why did parliament spend so much time discussing a motion by Rre D. Lefhoko calling on government to formulate a citizen economic policy, when the Minister could have easily saved parliament’s time by informing it that such a policy is already in place? If she can withhold such valuable information from parliament why should the nation trust her? Alternatively if she is wrong about the existence of a citizen economic empowerment policy, it is also possible that she may be wrong about the provisions of the Media Practitioners Bill.

This piece is dedicated to my grandmother, Oneile, granddaughter of Tshukudu of Ditharapa Ward, Serowe (arguably GaMmangwato’s greatest warrior) and Tawana, who used to proudly show us her hand and proclaim that her uneducated father fixed it for her when she injured it when she was still a little girl. Knowledge does not reside only with Ministers and Members of Parliament, in much the same way that it does not reside only in the formally educated. Ordinary citizens have knowledge and should be listened to in the law making process.

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