Own Correspondent
24th June 2024
Elections are a sine qua non for democracy as they are a primary means through which individuals exercise their right to participate in public affairs and so for their participation to be meaningful, it must be well informed says a respected media expert.
The two day conference organized by the Johannesburg based Campaign for Free Expression, United Nations(UN) Botswana alongside local partners Botswana Editors Forum was attended by media professionals, academics, political parties as well as civil society organizations and premised on Theme: ‘Strengthening Freedom of Expression and Access to Information to Enhance Electoral Integrity.’
“The right of access to information is inter-related to freedom of expression as these two rights, together, ensure open and robust political debate that enables citizens to meaningfully participate in the democratic process,” said Tachilisa B. Balule, Associate Professor of Law at the University of Botswana(UB) during plenary discussions on the first day of the Botswana Freedom of Expression Pre-Elections Summit at Protea Hotel, MASA Square Monday.
He said, “It is for this reason that the African Commission on Human and Peoples’ Rights Guidelines on Access to Information and Elections in (ACHPR Guidelines) recognizes that for elections to be free, fair and credible, the electorate must have access to information at all stages of the electoral process.
Balule stressed that the Guidelines, contain several general principles that can be utilized to gauge Botswana’s compliance:
a) Guarantee of the right of access to information
The Constitution does not expressly guarantee the right to information, rather, it guarantees the right to ‘receive and communicate ideas and information’ as an aspect of the right to freedom of expression insists Balule. He said there is a debate on whether this provision guarantees the right to information and if so, to what extent. One view is that the provision only protects a passive right to information, that is, it prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to them.
The other view is that the provision protects a qualified right of access to state-held information where access to information is instrumental for an individual’s exercise of their right to freedom of expression, and where its denial constitutes an interference with their right.
The High Court of Botswana had occasion to pronounce on the question whether section 12 (1) of the Constitution protects the right to information, and if so, to what extent, in the case of News Company Botswana (Pty) Ltd t/a The Gazette v Water Utilities Corporation and Another.
Unfortunately, the Court avoided addressing the issue by finding that the matter in dispute could be resolved without addressing the constitutional issue. The status of the protection of the right to information in Botswana remains uncertain and this has adversely affected the enjoyment of the right and shaped attitudes, especially by the State, to disclosure of information.
The Legislature has so far failed to enact a right to information law despite several promises to do so. The absence of a law on the right to information has led to a culture of secrecy in government and private sector making it is difficult to access information.
b) Duty to document
For the right to information to be fully enjoyed, Balule believes it ought to be imposed as an obligation on public authorities.
“There is no law in Botswana that imposes an obligation on public authorities to create records. The absence of this duty negatively affects the enjoyment of the right of access to information as public authorities are left with a discretion to decide what records they can create,” said Balule.
c) Procedure for assessing information
The absence of laws on the right to information means there are not clear procedures for accessing information held by relevant electoral stakeholders and issues of exemptions, public interest override and severance are not addressed in the country.
d) Whistleblowing protection
Botswana has a Whistleblowing Act, 2016 for the protection of whistleblowers. The Act covers any person who discloses any impropriety whether as an employee or member of the public.
Balule said it is not confined to disclosures within certain defined relationships, it allows a person to disclose any impropriety whether as an employee or member of the public.
“The scope of application of the Act is wide enough to cover a person who, in good faith and in the public interest, discloses information about wrongdoing in the electoral process by a relevant electoral stakeholder or its employees. The Act does not apply to disclosures to the media,” said Balule.
e) Election Management Body
There is no law in place that facilitates access to information held by the Independent Electoral Commission stressed Balule.
“Consequently, save for those cases where a duty to create certain types of records arises from the law, the IEC is generally under no obligation to create, organise and maintain records in a manner that will facilitate access to information,” said Balule.
Some of the specific instances where the IEC is required by law to create records and facilitate access to those records, include, preparation of voters’ rolls and allowing access to these for inspection and disclosure of election expenses by candidates.
The IEC proactively discloses information on some issues including:
- Electoral calendar;
- List of constituencies or voting districts;
- Details of voter registration process, including criteria and requirements, and voter registration centres;
- Voters rolls;
- Location, as well as opening and closing times of voting stations;
- Elections results.
f) Political parties and candidates
Political parties and candidates, just like public bodies are also not transparent when it comes to disclosure of information during election. The information that is usually disclosed relate to names of office bearers, policies, symbols and logos.
g) Law enforcement agencies
Law enforcement agencies in the country do not share the types of information stipulated in the ACHPR Guidelines on Elections because there is no duty imposed on them to share the information.
h) Media Internet Regulatory Bodies
The broadcast media is regulated in order to ensure fair and balanced media coverage of the electoral process. The Botswana Communications Regulatory Authority (BOCRA), has in place a Code of Conduct for Broadcasting During Elections (July 2019).
Balule revealed, “The Code contains detailed provisions aimed at ensuring fair and balanced media coverage and in addition, addresses party political advertising and complaints procedure and enforcement.”
He said, “The print media on the other hand has no mechanisms in place to ensure fair and balanced media coverage of the electoral process. This lacuna is mainly attributed to a lack of effective self-regulatory mechanisms in place which ordinarily will be responsible to setting and enforcing standards for fair and balanced reporting.”
The State media has in place an Editorial Code of Practice which has provisions which, if properly implemented, would ensure fair and balanced reporting during elections. Unfortunately, the Editorial Code is hardly enforced.
