Bipartisan effort pays off in Botswana

AFTER having been forced to withdraw an earlier draft, the Botswana government consults with civil society to produce a largely acceptable Broadcasting Act. Tachilisa Balule reviews the provisions of the new Act as well as the process leading up to it.

THE enactment of the Broadcasting Act, 1998 is a welcome move which, it is hoped, will enhance freedom of expression and indeed democracy, in Botswana. The Act will now facilitate the setting up of private radio stations, which will end the monopoly that has hitherto been enjoyed by the State-owned Radio Botswana since independence. It had not been possible to set up private radio or television stations in the country due to uncertainties in the law. Before the enactment of the Telecommunications Act, 1996, the power to issue broadcasting licences was vested in the Botswana Telecommunications Corporation (BTC). However, the procedure for applying for broadcasting licences was never clear. BTC used to forward all licence applications to the Office of the President for screening. But the High Court in P.B. Gunda and Radio Gaga v Botswana Telecommunications Corporation and Another (Misca No. 376/96 unreported) rendered this practice invalid. It held that the power to issue licenses vested in the corporation and that the Office of the President had no legal power to screen such applications.

In 1996, Parliament enacted the Telecommunications Act, 1996. This Act established a Telecommunications Authority; a body corporate composed of five members who are appointed by the Minister of Works, Transport and Communications. One of the functions of the Authority is to issue licenses to providers of telecommunications services in the country. The Act defines 'telecommunications service' as a service delivered by means of a telecommunication system whereby any person using the service is able to convey, receive or transmit speech, music, sound, signals or images. This definition encompasses broadcasting, which therefore means that the power to issue broadcasting licenses was taken away from BTC and vested in the new Telecommunications Authority. However, no licenses have yet been issued under the Telecommunications Act, 1996. Only one television broadcasting license was issued to the Gaborone Television Company under the BTC era and no radio license was ever issued.

Broadcasting Act, 1998: A brief background

In late 1996 and early 1997, the Botswana Chapter of the Media Institute of Southern Africa (MISA - Botswana) hosted two workshops on media legislation and media training. These workshops recommended that the government:

Establish a Presidential Commission to formulate media policy;
Ensure the establishment of an Independent Broadcasting Authority whose appointment should be transparent and make provision for proper representation of diverse stakeholders;
Transform Radio Botswana from a government department into an independent parastatal or government agency; and,
Encourage and support the establishment of community based radio stations.

In May 1997, the government announced that it had drafted legislation for the media and distributed copies of the draft legislation, The Mass Communications Bill, 1997, were released to MISA and other stake holders. The objects of the bill were five fold:

Establishment of a National Broadcasting Board to oversee broadcasting activities in the country. Members of this Board were to be appointed by the minister;
Licensing of decoders;
Establishment of a press council to monitor activities of the press to ensure the maintenance of high professional standards; and,
The provision for accreditation of journalists.

The draft legislation was rejected as draconian by media stakeholders on 21 June 1997 at a conference convened by MISA - Botswana and attended by, among others, representatives of ARTICLE 19, Zambian Media Institute and a number of South African NGO's. There was also strong opposition to the bill from local and international human rights groups.

A Media Task Force was appointed at the conference to meet the government and persuade it to withdraw the offending bill. After a meeting with the Task Force, the government agreed to withdraw the bill. It was later agreed that, due to pressure on government as a result of a number of pending applications for broadcasting licenses, discussions should be focused on broadcasting. The other elements of the bill were postponed indefinitely. [See Intense pressure forces re-drafting of Botswana media bill, SAMLB Vol. 2, No. 2, July, 1997] The government appointed a group, led by the Administrative Secretary in the Office of the President, to participate in dialogue with the Media Task Force and charged with the responsibility of coming up with a draft broadcasting legislation. The two groups were involved in intense discussions between July, 1997 and August 1998. The result of these discussions manifests itself in the Broadcasting Act, 1998. The Act therefore represents a compromise between government and media stakeholders.

Objects and Scope

The objects of the Act are to establish a National Broadcasting Board which will be responsible for overseeing broadcasting activities in the country and allocation of available spectrum resources in a manner that will ensure the widest possible diversity of programming and optional utilisation of the spectrum resources; and to issue broadcasting licenses.

When the Act comes into effect, it will take away the Telecommunications Authority's powers to issue broadcasting licences under Part VI of that Act. The Broadcasting Act amends section 2 of the Telecommunications Act, 1996 by excluding from the definition of telecommunications service; 'broadcasting service' as defined in the Broadcasting Act. The Act defines broadcasting service as 'a single service which consists in the broadcasting of television or sound material to the public or section of the public or the subscribers to such service'. The Telecommunications Authority will however, remain responsible for the technical management of the spectrum resources.

National Broadcasting Board

The objects of the Act are enforced by a National Broadcasting Board, which is established under section 3. The board comprises of eleven (11) members of two categories. The first category, are those members, who are appointed by the Minister of Presidential Affairs and Public Administration, representing four government departments namely, Office of the President; the Copy Rights Legislation section of the Ministry of Commerce and Industry; the Culture and Social Welfare section of the Ministry of Labour and Home Affairs; and the Telecommunications Authority.

The rationale for having the above departments represented in the Board was said to be for the protection of government interests. The portfolio of information and broadcasting falls under the Office of the President. The Minister of Presidential Affairs and Public Administration is therefore answerable to Parliament on matters relating to information and broadcasting. It is on that basis that the minister has to have a representative on the board. The Ministry of Commerce and Industry's Copy Rights section is to offer advice and assistance on copy rights issues whereas the Ministry of Labour and Home Affairs, Culture and Welfare department, represents national cultural matters. The Telecommunications Authority is represented on the basis that it is responsible for the management of spectrum resources.

The second category of members of the board are those appointed by the minister upon recommendation by a Nominating Committee. The idea behind this is to ensure that the board is independent of government, by appointing, through an open process, persons of integrity to the board. For this purpose, the Act establishes a Nominating Committee composed of a member of the Law Society of Botswana, appointed by the Society's Council, who shall act as Chairperson; the Vice Chancellor of the University of Botswana or his or her nominee; and a representative of the Office of the President.

The task of the Nominating Committee is to interview persons who wish to be appointed to the National Broadcasting Board and then make recommendations to the minister. The committee is required to advertise in the Government Gazette and any local newspaper, inviting candidates desirous of being appointed to the board to apply to the committee for interviews.

These interviews must be conducted in accordance with principles of transparency and openness. At the conclusion of the interviews, the committee shall forward a list of ten names to the minister from which he/she will nominate seven to the board, and one of whom shall be designated as chairperson of the board. The tenure of office of board members will depend on their terms of appointment. However, no member can serve for a term exceeding five years. A retiring member will be eligible for reappointment.

The Act provides for retirement of members on a rotational basis to ensure continuity in the board. This section gives the minister powers to appoint members on different terms. The minister determines remuneration of board members after consultation with the Minister of Finance and Development Planning. The Secretariat to the board is the Telecommunications Authority who are required to designate to the board such officers as may be necessary for the performance of the board's functions and the administration of the Act. The functions of the National Broadcasting Board are to issue broadcasting licenses; exercise control over and supervise broadcasting activities; and the allocation of the available spectrum resources in such a manner as to ensure the widest possible diversity of programming and optional utilisation of the spectrum resources.

The board is given powers to establish different application and assessment procedures for private, community and public broadcasting. It may also invite applications for licences through a tendering process. In granting licenses, the board may give preference to enterprises which are owned by citizens or in which citizens have significant shareholding.

Issuing of Broadcast Licenses

An application for a broadcasting license shall be made to the Secretariat of the board providing particulars specified in the Act: Upon receipt of an application and having satisfied itself that an applicant meets the requirements, the board may grant a license. The granting of a license shall be subject to the availability of frequencies and will be subject to such conditions and restrictions as the board deems appropriate. Licensees have an obligation to notify the board of any changes in their particulars. Every change in the particulars of a licensee must be brought to the attention of the board for its approval. The board may refuse to approve any change in the particulars of a licensee and can even revoke a license where the change will be detrimental to the development of the broadcasting sector. The board also has power to revoke a license where a licensee has failed to comply with any material condition included in the license or has failed to pay any fees under the Act.

Before the board can revoke any license, it must give the licensee notice thereof in writing and a reasonable opportunity to be heard. A person aggrieved by the decision of the board in refusing to renew or revoking a license has a right to appeal to the High Court within a time to be fixed by the board. In terms of section 24 of the Act, any license issued by the Telecommunication Authority shall continue in force as if it had been issued under the Broadcasting Act. And all applications submitted to the Authority shall be dealt with in terms of the new Act.

Finally Section 21 of the Act provides for the making of regulations to prescribe a code of practice to be adhered to by all licensees while section 23 enables the minister to make regulations necessary for the carrying into effect the provisions of the Act.

Conclusion

The enactment of a Broadcasting Act was long overdue and is therefore welcome. However, there are some issues that may be taken up against the new Act. The first is the absence of a national media policy. There is currently no national media policy in the country, which means that the Act was enacted in a 'policy vacuum'. The absence of a policy has proved to be stumbling block in the drafting of the regulations to the Act. Secondly, one wonders whether the board will be sufficiently independent of government. The involvement of the minister in the determination of terms of appointment to the board and the remuneration of board members is a cause for concern. This is something that may seriously compromise the independence of the board.

The other issue is that one would have thought it appropriate to give the power to make regulations to the board since it is the board that will be responsible for the administration of the Act. Unfortunately, this power has been given to the minister and the board's efficiency may be seriously jeopardized where differences arise between the minister and the board. At the time of writing, the Act had not yet come into effect though the drafting of the regulations was at an advanced stage. It certainly would have been better to wait for the appointment of the board before proceeding with the making of regulations so that the people who will be entrusted with the task of enforcing these regulations should take part in their making.

Tachilisa Balule
Lecturer in Law, University of Botswana
and Member of the Media Task Force