On 2 September 2014 the Botswana Police Service (“the BPS”) obtained from the Broadhurst Magistrates’ Court a warrant of arrest against the Sunday Standard Editor, Mr. Outsa Mokone. Despite the fact that the warrant of arrest was obtained on 2 September 2014, Mr. Mokone was only arrested on Monday, 8 September 2014. The warrant of arrest relates to a possible charge of “seditious intention” contrary to section 50(1) as read with section 51(1) C of the Penal Code of Botswana.
The Law Society of Botswana (“the LSB”) is deeply concerned about the arrest and detention of Mr. Mokone on the basis of penal provisions which do not, on the face of it, apply to the facts complained of by the State. The facts in issue are covered extensively in the affidavits filed by and on behalf of Mr. Mokone at the High Court on 9 September 2014. The reading of the warrant of arrest does not state with material particularity what article of the Sunday Newspaper has violated the said penal provisions. However, Mr. Mokone’s statement on oath is to the effect that his arrest is in relation to a Sunday Standard article of 1 September 2014 entitled “President hit in car accident while driving alone”.
For an offence under section 50(1) of the President to be established prima facie, the prosecution ought to show that the article in issue brought “hatred or contempt” or excited “disaffection against the person of the President.” When reading the article in issue, the LSB cannot believe that the same can be said to be capable of leading to the eventualities contemplated by section 50 (1) of the Penal Code. The issue here is not whether or not the article or the parts thereof are true or false, but whether the facts and circumstances can sustain a charge of sedition. In the view of the LSB this is far-fetched.
Over and above the detention, the currently uncontroverted affidavits of Mr. Mokone indicate that he was denied his right to legal representation and access to the courts after his arrest and detention from the afternoon of Monday, 8 September 2014 until the wee hours of Tuesday, 9 September 2014.
The right to freedom of expression is sacrosanct, hence it being enshrined in section 12 of the Bill of Rights of the Constitution of Botswana. Whilst it is a given that such right is not without bounds, it is accepted in a democracy and in terms of precepts of the Rule of Law and Good Governance that interference with such right should be in the public interest or be reasonably justifiable in a democratic society.
Given the facts of this matter, there seems to be a strong case to suspect that, unless the contrary is shown, the action of the State was aimed at limiting the media and the public’s right to freedom of expression through intimidation and fear leading ultimately to self-censorship. If this turns out to be so, it would be a sad day for the country as such actions would not only be unconstitutional but also contrary to the basic tenets of the Rule of Law in a democratic dispensation.
Enjoyment of the right to freedom of expression by the Sunday Standard newspaper and other private media in Botswana ensures that they are not afraid of writing and commenting critically on issues of corruption, human right violations, accountability and good governance in general.
The Law Society of Botswana challenges the Government to assure the nation that the arrest and detention of Mr Mokone under the archaic sections of the Penal Code is not an attempt to scare them into submission and hence muzzle them. This is especially important as public discourse enters its height due to imminent elections in October 2014.
Issued By: Lawrence M. Lecha
Chairman
Law Society of Botswana
At Gaborone, Botswana on 11th September 2014.
