The Media Institute of Southern Africa (MISA) has demanded the immediate release of detained journalist Daniel Kenosi, saying the charges he is facing with regards to distributing pornographic materials and criminal defamation may not pass constitutional muster as they are an unreasonable infringement on his constitutional right to freedom of expression.
Kenosi was arrested on Tuesday last week for allegedly contravening section 16 of the Cybercrime and Computer Related Crimes Act. He is suspected of unlawfully distributing pornographic or obscene material. He is also facing charges of criminal defamation and causing death by dangerous driving. In a strongly worded statement released yesterday, MISA Botswana National Director Buyani Zongwani said the charges relating to section 16 (2) of the Cybercrime and Computer Related Crimes Act will not pass constitutional muster because they are too wide and therefore an unreasonable infringement of section 12 (1) of the constitution.
“The constitution provides for freedom of expression, which includes freedom by the media to communicate information without hindrance. The same goes for the archaic section 192 of the Penal Code on criminal defamation. In our view, all these blanket provisions ought to be challenged in court for breaching freedom of expression,” he said.
He added: “We call upon the DPP to withdraw the charges against Kenosi, failing which we shall seriously consider applying to join either as a party to the proceedings or as a friend of the court with a view to assisting the court on the constitutionality of the provisions being used against him.”
The media has repeatedly complained that the Cyber Crimes Act contains several provisions that violate international standards on freedom of expression. They added that the Act is open to abuse because it lacks clearly defined limitations. Any person who is found guilty of electronic traffic in pornographic or obscene material will be liable to a fine not exceeding P5, 000 or to imprisonment for a term not exceeding three months, or to both.
When commenting on the matter, attorney Tshiamo Rantao, who also sits on the board of MISA, said strict liability against the media in the absence of the public interest defence is an unreasonable limitation on freedom of expression, particularly freedom to communicate ideas and information.
“In my view, the absence of a public interest defence to a charge based on both the criminal defamation and the Cybercrime Act may render the provisions unconstitutional. Strict liability against the media without the public interest defence is an unreasonable limitation on freedom of expression,” he said.
He added that a journalist should be allowed to show that the publication of the material in issue was in the public interest to escape liability.
“It would then be open for the court to determine whether or not the publication is in the public interest. This would depend on the circumstances of each case,” said Rantao.
