The on-going debate about the Media Practitioners Bill reminds me just how some people heedlessly take a position against a matter of national concern and how they are inclined to advance the most subtle arguments in an attempt to win public sympathy for their points of view.
The media field seems ever to be the happy hunting ground of the government, were these points of view anything to go by. Accordingly, I have cautioned myself of the danger that if I take these points of view without detaching myself, traces of their errors (to echo Descartes) will infect me and cling to me against my will and despite my precautions. And so I should also caution the public at large that it is important to try to achieve detachment while participating in the debate and discourse to have a clear view of what is going on.
In Botswana, the idea of public regulation of the media is attributed in some quarters to failure of the media’s traditional self-regulatory mechanisms. Whether that is the case or not is probably a matter that requires empirical verification. The main point though is that such failure is viewed as an appropriate occasion for legislative intervention. Thus in Botswana the focus has shifted on choice between the common law system of privately enforced rights and the administrative system of direct public control and which between these two approaches (or their mix) is the more robust. Of course, the media industry is inclined to view self-regulation rather more favourably.
However, there is a view that says this traditional approach is no longer realistic, that it is inward-looking and not futuristic. Part of the reason for this is that the concept of public control remains rather ambiguous. In addition, the ambiguities assume their greatest significance in the context of (potential) public complaints against media practitioners, thanks largely to the inputs (or lack thereof) of those who advise the politicians. This means that an understanding of the policy and chapeau of the Media Practitioners Bill is of vital importance. I am not here concerned with discovering the conditions on which the government will disregard self-regulation ÔÇô that task I leave to the capable minds of political scientists.
What then, does the proposed law seek to achieve? Its declared objectives are to preserve the maintenance of high professional standards within the media and to ensure that media practitioners and institutions in Botswana “operate without any political or other bias or interference, and shall be wholly independent and separate from the government, any political party or any other body”.
How and to what extent are these noble objectives incorporated in the provisions of the proposed law? I have already remarked on the common law system of enforcement of private rights (litigants, lawyers, courts, etc), a component of the self-regulatory system. It is hard to see why public duties are considered by the media industry as not part of the debate. The exclusion of public rights ÔÇô historically the domain of the state all over the world ÔÇô means that the public has to rely on the media’s self-regulatory mechanisms and the courts for the protection and enforcement of their private rights. But even if protection were sufficiently addressed by self-regulation, are public rights (the rights prescribed by the Bill) to be excluded? That would be an untenable proposition since – apart from other issues such as resource and capacity constraints and the already high cost of litigation – these self-regulatory mechanisms (to the extent that such configurations do indeed exist) are hardly suitable for the adjudication and enforcement of public rights, including especially the protection of minors and persons suffering from physical and mental disability. The government should not be seen as abdicating its public duty in this context because there are cogent reasons why public regulation is not negotiable.
Indeed, the Bill ensures that public rights are protected by creating rights and enabling institutions and transferring its power to these institutions. To do this assures attainment of the first legislative object, that is, the preservation of high professional standards in an area of economic activity which hitherto could hardly have been described as little more than a vocation. But there is more.
The second objective outlaws political interference and guarantees institutional independence. It need merely be said in this context that the jury is still out. But we are a country governed by the rule of law, with higher courts made up of independent judicial minds. So why is the debate on the Bill being expressed with unnecessary mysticism? I cannot but recall how paranoid my comrades and I in the BNF were when the government introduced the National Security Act to remove the mischief of South African transgressions of our national sovereignty. Many of us may recollect that this legislation was famously invoked to apprehend not a single opposition politician, but, instead, a delinquent legal practitioner who has since been rehabilitated. That is our historical experience.
As earlier noted, we also need to test the Bill’s objectives against its language and structure. Thus we must seek to deal with the substance of its provision rather than the legal form in which these may be clothed. True, it is possible to argue that the Bill’s provisions are dressed up in politically correct language but the real inquiry is whether the provisions are reflective of a power disequilibrium between the state and other actors (eg. media companies, practitioners, etc). This also means the provisions must also be looked at in a proper context.
The media industry is a set of relationships (between a state and these other actors, including the public at large) that determines what is produced or disseminated, where, how, by whom, for whom, and at what price. As someone has written before, there are definite links between the government and the various stakeholders, furthering their inter-dependence, and whilst these conditions benefit the different groups they are at the same time sources of tension between the government and these groups. A part of this tension stems from the historic compulsion of states to capture the benefits of information while limiting its ostensibly negative political, social and cultural effects on groups and society in general. The extent of public intervention varies to one or other degree depending on the political context. Generally, however, located at the apex of the hierarchy will be national security, law and order, and immigration policy concerns.
On a close examination of some important provisions of the proposed law on media practitioners, there is arguably no one locus of power. However, there is a cession of the ministerial powers to the Botswana Press Council. In theory, there is ambiguity between power to control, on the one hand, and actual exercise of control, on the other hand. Traditionally, the power to control belongs to the domain of the state whereas the actual exercise of control represents looser forms of control and, consequently, is less polemical. And therein is the rub.
If the Bill becomes law, the members of the Council (who are the publishers of news and information) will through their numbers, their wealth and commonality of interest, have such a weight in the balance of power that they will rule everything including the determination of who becomes a media practitioner and who is entitled to carry out his or her vocation in this country. The engineers, medical practitioners, land surveyors, lawyers, etc, would not be so presumptuous as to expect this legislative power. Furthermore, it is the Council who are endowed with powers to preserve media freedom and to uphold standards.
There is the thorny issue of the appointment of the Complaints Committee. I am told the government may have done a volte face on its previous stance and this power is now vested in the media practitioners via the Council. Of course, this is the correct political decision but in our legal system we discourage people to be judges in their own cause. Hopefully, it may very well be that proceedings of the Complaints Committee will be conducted in public to assure transparency and this would enhance public interest in public affairs, and also have the added effects of educating and informing the public at large by the wider diffusion of facts and arguments. But the monopoly of that choice is given to the Council’s Executive Committee – another key feature of self-regulation. It is to be hoped that the power will be exercised judiciously given that this can only restore public confidence in the media. In addition, public proceedings would have a deterrent effect on recalcitrant editors and other functionaries, ensure standards and ethics and, in the final analysis, enhance the status of the media as a profession to be taken seriously.
In November 2007, Botswana and four other SADC countries concluded an interim Economic Partnership Agreement (SADC EPA) with the European Communities. The second phase of the SADC EPA requires the conclusion of an agreement on liberalizing a single services sector by year-end. Thereafter, trade in services will be liberalized entirely. There are lessons in this. If the domestic regulatory framework is weak, the professions (including the media) will not survive international competition. Accordingly, the media ought to think twice before throwing away the baby with the bathwater.
Mothobi is assisted by Claudinah Gabanakemo
