Own Correspondent
24th June 2024
A free media exists in a financially conducive environment with adequate protections in law and practice, limited restrictions, with media practitioners operating in a very diverse and pluralistic environment free from intimidation and violence a leading local media expert stressed.
Although media freedom in Botswana is guaranteed under section 12 (1) of the Constitution it has a number of limitations. Permissible limitations on media freedom must comply with the conditions set in section 12 (2) of the Constitution, which are that any limitation should:
- Be contained in or done under the authority of the law.
- It must be shown to be serving a legitimate interest; and
- Must be reasonably justifiable in a democratic society.
Tachilisa B. Balule (PhD), Associate Professor of Law at University of Botswana, said “Media freedom in the country faces challenges emanating from the existence of several provisions that limit the freedom but whose constitutionality is questionable.”
He said, “Some of these provisions are anachronistic and have either been repealed or judged unconstitutional in the place of their origin and many other commonwealth jurisdictions which had inherited these provisions from their former colonial master.”
Some of these provisions include sedition; false and alarming publications; and insults to public officials and national symbols. These laws are not crafted clearly and give wide discretionary powers to the executive and therefore fail the first limb of the constitutionality test.
Balule maintains that these provisions cannot be said to serving any legitimate interest and their application is not proportionate thus failing both the second and third limbs of the constitutionality test. These provisions are notoriously used by States for target media that are critical of the government of day and their application inhibits the media’s watchdog function.
Balule however stressed that the media must also be responsible and should have the following characteristics that promote responsibility and integrity:
- Accuracy- content disseminated by the media must be well-researched supported by fact-checking.
- Fairness – the media must treat participants and subjects honestly and in a transparent manner.
- Balance – readers, viewers and listeners should have access to a balanced range of views and opinions.
- Right of reply and correction – aggrieved persons should be allowed a right of reply to a published story and to correct errors.
- Respect for individual’s right of privacy.
While it is now generally accepted that the protection of media freedom also covers the protection of journalist sources, Balule revealed that there is no law in place in the country that deals with protection of sources. Where there is no protection of sources, sources will be unwilling to share information with the media thereby stifling the media watchdog function and the public’s access to information.
A related issue is the fear of unlawful surveillance of media practitioners by law enforcement agencies, which not only threatens protection of journalistic sources, but also create an unsafe working environment for journalists, which amount to violation of media freedom.
“The guarantee of media freedom also imposes a positive obligation on the State to put in place a range of measures to create an environment in which a pluralistic media sector can flourish,” said Balule.
He said, “These measures include, among others, obligations of transparency of media ownership, rules to prevent undue concentration of media ownership, licensing of different types of broadcasters, measures to promote content diversity, and promoting a conducive economic environment in which all media all media flourish.”
These measures are premised on the argument that where you have a plurality of media types and format, these will maximise the dissemination of a diversity of views and opinions that serve the informational needs of a diverse audience revealed Balule.
In the broadcast sector diversity and pluralism is usually promoted through recognition of three types of broadcasters being, public service, community and private or commercial. The legal framework in Botswana only recognises two, commercial and non-commercial (which in essence is community).
“There is no provision for public service broadcasting contrary to recommendations of international bodies such the United Nations Human Rights Committee and the African Commission on Human and Peoples’ Rights which clear say states should transform state broadcasters into public service broadcasters,” said Balule.
He said, “The main difference between the two is that while the programming of a public service broadcaster is determined by the public interest, the programming of a state broadcaster is determined by the state.”
State control over a state broadcaster compromises its independence and diversity of its programmes.
Balule pointed out that in 2016 the Ombudsman found that Botswana Television’s (BTV) coverage of political party activities does not meet the requirements of balance, equity and inclusiveness as set out under its mandate and guidelines.
“A recommendation was made that BTV should ensure that its reportage of political party activities is balanced, inclusive and equitable. The state broadcaster has to date failed to implement this recommendation,” said Balule.
Community broadcasters were only recognised in the legal framework in June 2022, and so far, only one licensee, the University of Botswana Campus Radio station has been issued a licence under the category. There are three commercial radio stations in operation.
It is my considered view that the sector does not have the desired level of plurality of media outlets ideal to ensure free and fair coverage of the electoral process.
Balule said, “The government’s control over the state broadcaster compromises its independence and the lack of adequate community broadcasters means there are a number of communities, both geographic and of interests, whose informational needs are not fully catered for.”
The broadcast media is regulated to ensure that their content is balanced, fair and equitable. The sector regulator, Botswana Communications Regulatory Authority (BOCRA) has issued instruments that are aimed at promoting diversity of content.
These include, Communications Regulatory Authority Regulations, 2022, BOCRA Code of Conduct for Broadcasting During Elections (2019), and the BOCRA Broadcaster’ Code of Practice.
These instruments contain standards that broadcasters must observe to ensue fair and balanced programmes. The Code of Conduct for Broadcasters During Elections is dedicated to ensuring fair and balanced reporting during elections. These instruments are enforced by BOCRA and apply to both commercial and non-commercial broadcasters. It is unfortunate that these instruments do not apply to state broadcasters.
