Friday, October 23, 2020

The ‘outlaw’ 50 & 51 on Mokone

Lobatse Acting High Court Justice Jennifer Dube on Friday ruled that sections 50 and 51 of the Penal Code are consistent with the Constitution of Botswana and hence Sunday Standard Editor Outsa Mokone may be charged with sedition.

Mokone, through his lawyers, Bayford Associates had put up a spirited 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.

“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 Justice 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.

Justice 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.

Justice 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.

Mokone had also requested the court to declare that the warrant of arrest issued on September 2, 2014 by Chief Magistrate for Gaborone Magistrate Court for his arrest is unlawful. He also demanded that the refusal by the Botswana Police Service to allow him access to his to attorneys whilst in police custody was unlawful.

Dube ruled that warrant of arrest against Mokone by the Magistrate on September 2, 2014 was valid and lawful. But in the same vein she ruled that Mokone was denied his right to legal representation by the Botswana Police Service during his detention between September 8 and 9, 2014.

Mokone’s lawyer Dick Bayford of Bayford and Associates told reporters after the judgment that the judge misdirected herself on a number of issues.

He said while the court conceded that sedition laws were established during the colonial era to suppress the colonists’ subjects, the question that the court should have dealt with is whether in a democratic society such laws are still relevant. According to Bayford, the court is empowered to make recommendations to Parliament so that it makes amendments to laws that are a relic of the past.

He said what the court was required to do was to go on analytical process of the law that was sought to be impugned.  Bayford who confirmed that they are appealing the judgment added that the court did not fully interrogate Section 50 and 51.

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