The Botswanan government has been persuaded not to pass in its present form the proposed Mass Media Communications Bill, which would have governed a wide range of mass media activities including the licensing of broadcasters, registration of newspapers, and accreditation and disciplining of journalists.

While this development is heartening, it is still necessary to highlight the ways in which the proposed Bill would have diminished media freedom in Botswana and lowered its protection below international standards, if only to focus the minds of  those who will be involved in reworking the Bill.

The provisions of the Mass Media Communications Bill were inconsistent with the requirements of international standards on the independence of broadcasting licensing authorities; freedom of people to publish newspapers without undue hindrance; freedom of media practitioners to regulate themselves in matters of professional standards and the right of journalists to have access to information and to report it freely regardless of frontiers.

In terms of broadcasting, section 3 of the Bill established the National Broadcasting Board all of whose members would be appointed by a government minister. The Board would have had wide powers to regulate broadcasting in many respects, including the issuing of licences. It is obvious that the appointment of the Board by the  minister would not have met the requirement of international standards that the power of allocating broadcasting licenses should be vested in a body whose independence is sufficiently guaranteed. The Board would have been too closely connected to the interests of the government.

In addition to the power to grant licenses, under section 11(1) the Board would also have had the power to revoke licenses for the most minor infringements of any conditions attached to them. Such a wide power is inconsistent with international standards which permit revokation of licences only in extreme circumstances of gross abuse by the broadcaster such as direct incitement to racial or ethnic violence.

Of particular concern was  the lack of an independent appeal process for license applicants and holders who were aggrieved by decisions of the Board.  Section 12 of the Bill granted jurisdiction over such appeals to the minister and stated that the minister's decision would be final. The independence of such a process could not be guaranteed since the same minister who appointed the board acted as the appeal authority.  In any case, the Bill failed to meet the requirement of international standards that complaints of violations of fundamental rights, including media freedom, should ultimately be subject to judicial review.

People in the print media also had cause to be concerned about the Bill. Section 24 prohibited the printing or publication of any newspaper in Botswana unless it was registered with a government Registrar of Newspapers.

Under section 26(1), the Registrar could refuse to register a particular newspaper if it did not fulfil "all the requirements for registration". The Bill did not make clear whether such requirements were limited to providing the administrative details (such as the name of the newspaper) set out in section 25, and providing proof that 80 percent of the newspaper was owned by citizens of Botswana as required by section 26(2). In the circumstances, it is quite possible that more requirements could have been arbitrarily added on the grounds that the requirements enumerated in sections 25 and 26(2) were not exhaustive.

Quite apart from the uncertainties of the registration process, the Bill raised serious questions of principle with regard to the ability of people to publish newspapers without unwarranted hindrance. The requirements set out in the Bill are unnecessary in a democratic society and counterproductive to the interests of freedom of the press, because the administrative details are normally included in copies of the newspaper itself, or lodged with the office responsible for registering business enterprises.

The registration requirement is also inconsistent with the interests of press freedom because it has a chilling effect on newspaper personnel who may reasonably perceive registration of newspapers as an aspect of constant government surveillance.

The Bill would also have opened the way for the possible harassment of print media practitioners because it would have allowed seizure of any newspaper and search of any place whenever it was suspected by any police officer from the rank of inspector that the newspaper was unregistered or that the place was being used to keep such newspaper. These wide police powers were granted under section 32 of the Bill which would also have permitted the police to seize "any other evidence" of the commission of an offence against the requirement of registration. Such "other evidence" could include things such as computers and printing presses used to produce the newspaper in question.

In violation of international standards relating to enforcement of professional standards and discipline of journalists, part VI of the Bill established a Press Council to which all journalists and newspaper publishers would belong. Five of the eleven members of the executive committee of the Council would be appointed by a government minister while the rest would be elected by members of the Council.

The Bill would have empowered the Council, among other things, to set in place a code of practice for all journalists and publishers, establish a disciplinary committee to investigate breaches and to penalise breaches by warning or reprimanding guilty offendors or imposing on
them fines of up to P10,000. Section 51(18) of the Bill provided that any fines imposed by the disciplinary committee would have had the same legal status as those imposed by the courts. The Bill also provided that a fine of up to P1000 and imprisonment of up to one year could be imposed for such offences as  failure to heed the summons to attend a hearing of the disciplinary committee or to show the committee documents which it requested.

While the breadth of the disciplinary powers of the Press Council are , in themselves, cause for concern, of more significance from the point of view of principle is that the very establishment of the Council under statute, and the significant control of its management through the appointment powers of the minister, are contrary to the letter and spirit of self-regulation advocated by all international standards related to the enforcement of professional standards and ethics in journalism.

The freedom of journalists would also have been adversely affected by the requirement in sections 53 that all foreign journalists covering or reporting "any event or incident in Botswana" be accredited by the Director of Information and Broadcasting, who would have to be satisfied that the applicant qualified for accreditation. The Bill did not state the criteria upon which the Director would base the decision.

In the same vein, section 54 prohibited any journalist resident in Botswana from covering "any official event or occurence in Botwana" unless he or she possessed a press card issued by the Director upon being satisfied that the journalist had complied with "the prescribed conditions".
What such conditions would entail is not stated in the Bill. This vagueness as well as that  related to the conditions for the accreditation of foreign journalists are inconsistent with international standards which   permit limitations of the exercise of media freedom , icluding the right to have access to information and report it freely regardless of frontiers, only if the limitations are defined precisely and narrowly.

This critique of the Bill is not exhaustive but has sought to highlight the major areas of concern. One hopes that the current consultation process will address the issues mentioned here in order to ensure that the final product is consistent with ,not only the Botswana constitution, but also international standards which have  also  become the benchmark in the Southern African region.

The international standards referred to include the Declaration of Windhoek on Promoting Independent and Pluralistic African Press (1991); Johannesburg Principles (1995)  and Article 19's Freedom of Expression Handbook : International and Comparative Law, Standards and Procedure (1993). These standards have also been extensively discussed by the Inter-American Court of Human Rights in their Advisory Opinion on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism , OC-5/85 of 13 November 1985, Series  A no. 5, 7 HRLJ 74 (1986).
 

Fidelis (Edge) Kanyongolo, University of Essex / Article 19 Consultant