Friday, September 25, 2020

The Media Practitioners Act: The way forward

The notorious Media Practitioners Act (MPA) has aborted. The result is that Parliament has failed to execute its constitutional mandate of creating an operational law for the good government of this country. That in itself is unconstitutional. In the process, valuable time and taxpayer’s funds have been squandered through futile consultations. More importantly, the Government has lost what it saw as a winnable battle against a horde of ill-mannered journalists. As for the media practitioners, the battle has been fought gallantly and won. They have not incurred any litigation costs. Also, so far no journalist has been jailed for violating the Act.

Although it had no choice, the Government appears to have bitterly accepted the reality that enforcing and implementing the Act is no longer a feasible option. Three factors have led to this failure. First, the Government failed to consult adequately. Second, the Government undermined or failed to appreciate the enormity of the task at hand. And lastly, the Government’s intentions were not clear. The Government is now faced with amending the Act. To ensure success, the amendment process must be comprehensive and approached from a completely new dimension.

This article is an attempt to set out benchmarks that must steer the process of amendment.
The MPA has now turned into a problem and needs to be approached as a problem. It would not go into the statute books like other Acts which passed rapidly through Parliament like bullets and then went on to be shoveled through our throats like we were toddlers being fed solid food for the first time. As it is now a problem, a proper problem-solving model must be adopted by both parties. The problem with the present MPA is that both parties approached it with urgency, without order and tact, like a bunch of excited herd boys killing a snake. This time each party must adopt a sensible problem-solving model. Both models must be integrative and collaborative. Law making isn’t a competition where the Government proves the strength of its musculature. Consequently, the Government needs to throw away its wasteful and counterproductive ‘muscleman’ attitude.

Of further paramount importance is clarifying and grasping the role of the Government in this matter. On many occasions the Government lost focus. The Constitution confers a legal obligation on Parliament to make laws for the good governance of Botswana. This isn’t an inspirational clause as such it warrants consideration whenever Parliament seat to legislate. Baseless laws have no place in our constitutional scheme. All laws must be justified on grounds of good governance. For this reason, the Government must be able to validate the Media Practitioners Act on the utility of good governance. Regulation of the media is necessary for good governance. That, however, is not in dispute. At issue is what form of regulation ensures good governance. The Government has opted for governmental regulation as opposed to self-regulation. If this continues to be the case, there is a need to construct such form of regulation in a way that does not injure good governance. By good governance here it is meant regulation without strangulation. It is limiting free speech without finishing it. Good governance is legitimate proportional limitation for a just cause.

It is also significant that the Government identifies and stipulates the mischief of the Act. To barely assert that the Act implements good governance by bringing discipline is far from enough. When any democratic government sets out to enact a law it does so because there is a mischief it seeks to combat. Mischief means the evil or the defect that the Government seeks to remedy or cure with the law in question. What is it that the Government wants to cure by the MPA? Here specificity is a necessity. Clarity ought not to be sacrificed. Further, the mischief must be real and credible so as to warrant redress by a new law. Not all societal problems require legislation. The mischief must be a matter of concern; sufficient enough to qualify as a national concern; it must be something that poses a real and substantial threat to public order. To mobilise national resources and base a law on the fears, worries and whims of a single individual is corruption. This ensures a rational and reasoned law making process necessary in a democratic model of government.

After identifying the mischief, the next stage is finding the possible solution. This is the pith and marrow of the Act. It is the bolt that carries the engine of the Act. It is where the enormity of the task lies. At this stage it is necessary to be alert to the nature of the task; in this case that task is to reform media regulation. Reform is a monumental task. It involves a paradigm shift. You alter what has been and bring in what is novel. A split-second consultation and half-hearted consideration of the outcome of consultative meetings isn’t the stuff that goes with reform. Reform isn’t a project for a few exuberant low-ranking attorneys at the Attorney General Chambers. And acceptable reform would not come solely from an obstinate and pig-headed Cabinet. That obviously means the solution must come from all involved stakeholders. And it will only succeed if the mischief really exists and all confirm its existence. Where only the Cabinet is the one that sees the problem, suspicions of the Government planning to annihilate the other will be born and paranoia will abound.

The solutions proposed must be proportional and necessary to combat the mischief in question. The prerequisite that legislative methods designed to remedy societal problems must be proportional ensures that fundamental liberties are not taken away without just cause. Parliament has no right to do that. Further, all stakeholders have proposed feasible solutions and such proposals must be seriously looked into by the Government. For this to happen, the Government must lose the arrogant attitude of acting as if it alone has solutions to everything and only its solutions can work. Participatory democracy is not about unilateralism. It is about Government genuinely involving its people in the decision making process. Legislative reform involves innovation and creativity. While this country may be tackling a problem that existed in other countries, it need not tackle it in the same way as those countries. Botswana must rise to the occasion and explore new and better ways of addressing the mischief. By being creative, a balanced and original solution that comprises elements of both self regulation and governmental regulation can be found. Being creative allows new penalties apart from imprisonment. Botswana ought not to wait for South Africa before it makes laws.

In making such proposals the following must be borne in mind. First, clarity and precision of the provisions are vital. The definition section of the Act must be revisited. The definition of a media practitioner must be narrowed down and made workable if the instrument of registration and accreditation is to be retained. If the instrument or registration and accreditation are retained its purpose must be clear and its purpose must go towards regulation. The danger of leaving the purpose of registration is that Government may use accreditation to the prejudice of the Media anytime it feels like. And if it is retained, registration must not become a device that impedes free speech.

Secondly, governmental interference must be minimised if not eradicated. If it is eradicated, the Minister must not appoint the constituents of the Disciplinary Committee and the Appeals Committees. Equally, the media practitioners must not appoint them so that they do not become judges in their own cause. To minimise governmental interference, a compromise can be sought. For instance, both parties can appoint an equal number of constituents to the committees. Failing this, a detached and independent appointer can be found. The specific grounds for removing the committee members must be laid down in the Act to guarantee independence and a secure tenure.

Thirdly, the criminal provisions of the Act must be reviewed. The provisions that impose penalties for violation of the Act must be clear as to whether they legislate strict liability or not. It will be unwise to leave the matter to the Courts. Further, it is probably best if strict liability provisions are completely avoided. The penalties must also not be so harsh as to bring a chilling effect on freedom of expression. Media Practitioners will be hesitant to speak under the risk of having to pay heavy fines or spend many years in prison.

Finally, sight must not be lost of what is really at stake beyond the personal egos of those involved. This whole fracas is centered on the right to freedom of speech and media freedom. Freedom of expression is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. Whatever solution, it must not impair this right.

In the end, the conduct of both parties is central to the success of this project. To succeed, the Government must not bring bitterness in the process due to its prior failures. On the other hand, the Media must also not enter with overconfidence and superciliousness due to the latter’s failures. This is a national project with profound ramifications for this democracy. Each party owes the nation some maturity and seriousness. More failure may mean that the present set-up is working and the perceived problems were only a phantasm.

*Lekgowe is a Law student at the University of Botswana


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