The Sunday Standard newspaper Editor, Outsa Mokone, was on Friday morning granted bail by the Broadhurst Magistrate Court in a case in which he is accused of publishing a seditious story contrary to section 51 (1) (c) as read with section 50 (1) of the penal code (Cap 08:01) Laws of Botswana and the Criminal Procedure and Evidence Act.
When arguing for the hibernation of the case, Mokone’s attorney, Dick Bayford said that the matter should not be continued at the magistrate court as “there is still a pending appeal case at the Court of Appeal whose outcome could render this case ineffective”.
Granting Mokone bail, Principal Magistrate Faith Dlamini Ngandu, ordered that the Sunday Standard editor should re-appear at her court on 26 January 2017 for status hearing. She also ordered that Mokone should not commit any other criminal offence during the time while the court of appeal case is still on as part of his bail conditions. The state attorneys did not oppose both the hibernation of the case and bail application by Mokone and his attorney.
The Friday case follows a recent decision by the Directorate of Public Prosecutions (DPP) to slap Mokone with a writ of summons to appear before the courts where he has since been charged with sedition.
The decision to lay the criminal charge against Mokone follows a ruling in August this year by Lobatse Acting High Court Justice Jennifer Dube that sections 50 and 51 (sedition) of the Penal Code are consistent with the Constitution of Botswana.
Mokone, through his lawyers, Bayford Associates have managed to stay his prosecution for two years, and tried to overturn the charge through a legal bid demanding that the provisions of Section 50 and 51 of the Penal Code are contrary to Section 12 of the Constitution of Botswana in that they infringe on the Right to Freedom of Expression.
Sections 50 and 51 outlaw any “intention to bring into hatred or contempt, or to excite disaffection against the person of the president or the government of Botswana as established by law,” while section 12 deals with the right to freedom of expression.
Dube, however, ruled that sedition is in line with the Constitution of Botswana. “Despite that the sections may be considered by some as unconstitutional and repressive of the freedom of expression as enshrined in the Constitution, the sections are, in my view, legal limitations to the said right so as to recognise and respect other persons rights and freedoms as well as to respect their dignity,” said Dube.
The judge added that “what the Applicant sought to do is, on the converse, what he and other interested groups should be doing to lobby the relevant arm of the government to consider what they deem to be necessary amendments to be effected on the Penal Code as to decriminalise sedition and give effect to what the Applicant has described as progressive movements taking place all over the world”.
She said the Attorney General’s contention that the story falls under the limitations under both Section 3 and Section 12 (2) is more compelling and convincing.
“Section 12 (2) it being a derogation provision, must be construed narrowly. The provision was designed very clearly to limit the right to freedom of expression so as to prevent abuse, chaos and insolence with might trample on other persons’ rights and freedoms,” she said.
Dube also found that “such limitations have been amplified by sections 50 (2) which sets out what would amount to the derogations provided for in the Constitution.
Dube added that the Sunday Standard story “qualifies to be classified as failing under the limitations provided for under both section 12 (2) and section 3 of the Constitution and falls squarely under the limitations provided by sections 50 and 51 of the Penal Code.