20/11/2014

CJS 424: Domestic andInternational Security

National Security and Seditious Offences; Barriers toBotswana Media?

Student Name: Tshephaone ReasentseStudent ID: 201104855Course Instructor: Mrs. M.K. GaboroneCourse Code: CJS 424Course Name: Domestic & International SecurityDepartment: SociologyProgramme: BA: Criminal Justice Studies

1TABLE OF CONTENTSABSTRACT..................................................................................................................................................2INTRODUCTION ........................................................................................................................................ 2PART I: ROLE OF THE MEDIA IN BOTSWANA....................................................................................3PART II: THE OFFENCE OF SEDITION................................................................................................... 5

ARREST FOR SEDITION IN BOTSWANA OF OUTSA MOKONE, SUNDAY STANDARD

JOURNALIST ..........................................................................................................................................8PART III: NATIONAL SECURITY AND MEDIA FREEDOM, A CRITICAL ANALYSIS ...................9CONCLUSION...........................................................................................................................................11PLAGIARISM DECLARATION...............................................................................................................12REFERENCES ...........................................................................................................................................13

2ABSTRACTThe role of the media in a democratic state is insurmountable to the extent that the governmentaccountability and transparency cannot be accomplished. Media freedom and freedom ofexpression is entrenched in almost every countrys constitution that upholds the rule of law,Botswana is also part of the inclusion. It is essential in that it also exercises public scrutiny overpublic and political affairs, as well as ensuring the accountability of political bodies and publicauthorities necessary in a democratic society. With the clash of interest between the governmentand the media the former more often abuses its powers on the latter and this in turn has resultedin the establishment of the Media Institute of Southern Africa which protects the media in SouthernAfrica from abuse. The media in Botswana is still faced with challenges and among others are;the insult laws or seditious offences and national security issues that hinders public scrutiny thusrendering the media obsolete and vulnerable as we shall see thereafter

Key words: National Security, Seditious offences, Media freedom and challenges

INTRODUCTIONThe media plays a vital role in every democratic state and pertinent to issues of domestic securityin general, the stability of the state is also determined by the acknowledgement of the media bythe state as a key role player in a democracy. Moreover one activist asserted that the media is themost powerful entity on earth. They have the power to make the innocent guilty and to make theguilty innocent, and thats power, because they control the minds of the masses1. This is evidenteven in our modern Tswana society particularly the Director of Intelligence Security Services(DISS) saga2 which was all over the news a few days before the October 24th National elections.Media freedom, which is an aspect of the right to freedom of expression, is now generallyrecognised as an indispensable element of democracy. The mass media promotes the free flowof information, which enables citizens to participate in a meaningful and informed manner inthe democratic process, also serves as a watchdog by scrutinising and criticising public officialsover the way they manage public affairs (Balule, 2008). Furthermore, there are oversightinstitutions put in place to ensure that the media particularly in Southern Africa is protected andthis is the Media Institute of Southern Africa (MISA). The paper is structure into various section

1 Extract from Malcolm X, an African American Human Rights Activist (1925-65)2 The issue of Spy equipment used by some of the DIS Agents on other political parties and also some allegationsby some politicians that DISS Officers are spying and sabotaging them.

3which will follow in a chronological manner viz; i) the role of the media in Botswana, ii) theoffence of sedition and what it entails, followed by the case study of Botswana, iii) nationalsecurity and media freedom: a critical analysis, and the penultimate chapter of the iv) conclusion.

PART I: ROLE OF THE MEDIA IN BOTSWANAOne of the most persistent debates in academic and lay circles concerning the mass media is theextent to which media can be said to cause anti-social, deviant or criminal behaviour: in otherwords, to what degree do media images bring about negative effects in their viewers? Theacademic study of this phenomenon effects research as it has come to be known developed from

two main sources: mass society theory and behaviourism (Jewkes, 2004). What this means asstated above by Malcom X, the media has the potential to influence public opinion to a greaterextent because what people see is what they believe it to be.

Balule, (2008) argued that freedom of expression is widely regarded as the lifeblood of democracy.The African Commission on Human and Peoples' Rights (ACHPR) has held that freedom ofexpression is vital to an individual's personal development, political consciousness andparticipation in the conduct of public affairs. The right to freedom of expression is of particularimportance as far as the press and other media are concerned. The media promotes the freeflow of information and ideas, thereby guaranteeing the right of the public to be informed onmatters of public concern. It also exercises public scrutiny over public and political affairs, aswell as ensuring the accountability of political bodies and public authorities necessary in ademocratic society. In the performance of the latter function, the media's debate on publicissues should be uninhibited, robust and wide-open, and as the American Supreme Court hasheld, 'speech concerning public affairs is more than self-expression; it is the essence of self-government'.

For the purpose of Botswana, It is imperative to provide an overview of the Botswana media bycategorizing it into two namely; i) Print media (Botswana Gazette, Botswana Gurdian, BotswanaDaily News, Midweek Sun, Sunday Standard, The Voice and Ngami Times) ii) Broadcast Media(Television: Botswana Television-BTV which is state owned, Radio: Gabz FM, Radio Botswana1, Radio Botswana 2, Yarona FM and Duma FM). In addition, Radio Botswana and BotswanaTelevision falls under the department of Broadcasting Services (Republic of Botswana-Government portal, 2014). The first, most obvious impact of the media is its ability to influence

4the publics opinion as stated above. The society base their views of crime based on media stories.Thus the media, in effect, defines the problems on the agenda by either exploiting or creatingpublic concern about an issue. Furthermore, the media can ensure that the legislature followsthrough with addressing issues. They can keep public attention on an issue and ensure that thelegislature fully deal with the problem. The media is a linkage institution in that it links the generalpublic with the government officials. Essentially this allows the general public to see exactly whatthe officials are doing in order for them to express their own opinions on the matter.

The media allows the public to see exactly what is going on and ensure that the governmentofficials are held accountable for their actions with the public. The right to freedom of expressionis of particular importance as far as the press and other media are concerned. The mediapromotes the free flow of information and ideas, thereby guaranteeing the right of the publicto be informed on matters of public concern. It also exercises public scrutiny over public andpolitical affairs, as well as ensuring the accountability of political bodies and public authoritiesnecessary in a democratic society. In the performance of the latter function, the media's debateon public issues should be uninhibited, robust and wide-open, and as the American SupremeCourt has held, 'speech concerning public affairs is more than self-expression; it is the essenceof self-government' (Balule, 2008). In order to report on current events, the media often followsthe actions of certain public figures politicians and actors in the Criminal Justice System (judges,lawyers). The media will investigate the actions of these people and expose those action to thepublic using the public media forum.

When we discuss the issues related to the media we cannot exclude the Media Institute of SouthernAfrica (MISA) established in Botswana which is among the most active media associations in thecountry. MISA Botswanas core activity is to monitor and report on violations of media freedom

and, where necessary, provide practical support to journalists who fall victim to such violations. Itis a strong member driven organisation advocating for, among other things, media freedom andfreedom of expression. Therefore the institute is an overseer to both the media and the governmentto ensure that there is no friction in between the two (MISA website, 2014).

From the MISA website, it reported that here have also been a number of ongoing processes thatstalled in 2012, much to the disappointment of access to information advocates on the continent.The report (MISA, 2014) further explained issued faced by Botswana that the Government of

5Botswana, whilst rejecting a bill on access to information, brought before parliament by oppositionmember Hon. Dumelang Saleshando, stated that they would enact such legislation at the followingFebruary session in 2012, an event that has never taken place. Tighter controls were directed atbroadcast media in 2012 and where some semblance of reform took place, it was actually for theworst. The establishment of the Botswana Communications Regulatory Authority (BOCRA)to oversee broadcasting and communications in Botswana is a case in point. The law thatestablishes BOCRA makes no provision for either public service broadcasting or public servicebroadcasting nor community broadcasting and is highly inconsistent with the African Charteron Broadcasting. This is a major setback, (MISA report.)

PART II: THE OFFENCE OF SEDITIONFirstly, it would be proper to provide a historical background of sedition and how it is defined byboth common law and our statute books which is the Penal Code3. Sedition is a very old criminaloffence under English common law that dates back centuries. It goes as far back as 1275 and canbe broadly defined as criticism that causes the public to lose faith in or act violently against thegovernment. The offence was punishable with unlimited fines or imprisonment. But it was lastused in the UK in the early 1970s, against IRA organisers, and the Law Commission recommendedits abolition as long ago as 1977. It was finally scrapped in 2009 along with criminal libel. Mostother western democracies have either repealed sedition or discontinued prosecutions(Mediadefence website, 2014). The offence of sedition or as Balule, (2008) calls it Insult lawsasserted that they still exist in Africa today as a symbol of colonial legacy. During the colonisationof the continent, insult laws were imported into Africa by the colonialists. Their application wasinfluenced by colonial experience, and they were used by the colonialists to stifle and suppress thegrowth of nationalist movements. The former British colonies in the SADC4 region that have

insult laws include Botswana, Lesotho, Malawi, Swaziland, Tanzania, Zambia and Zimbabwe.

The offence of sedition are categorized as crimes against the state. It refers to the uttering orwriting of words intended to bring the sovereign state into hatred or contempt, to urgedisaffection against the Constitution or democratically elected government, or the attempt toprocure change in government by unlawful mean (Sorial, 2010). Though sedition may have the

3 CAP 08:014 Southern Africa Development Committee

6same ultimate effect as treason, it is generally limited to the offense of organizing or encouragingopposition to government in a manner (such as in speech or writing) that falls short of the moredangerous offenses constituting treason. The publication of seditious writing (seditious libel) or

the utterance of seditious speech (seditious words) was made a crime in English common law.Modern statutes have been more specific. The display of a certain flag or the advocacy of aparticular movement such as criminal syndicalism or anarchy have been declared from time totime to be seditious (Sedition, 2013). The Supreme Court of Alberta cited Stephen's definition ofseditious intention:

An intention to bring into hatred or contempt, or to excite disaffection against the person of HerMajesty, her heirs and successors, or the Government and Constitution of the United Kingdom, asby law established, or either House of Parliament, or the administration of justice, or to excite HerMajesty's subjects to attempt otherwise than by lawful means the alteration of any matter inChurch or State by law established, or to raise discontent or disaffection among Her Majesty'ssubjects, or to promote feelings of ill-will and hostility between different classes of Her Majesty'ssubjects. (Mackinnon, 1977).

Critics of the law of sedition argue that while every society has an interest in protecting itselfand its institutions from violence, no society should criminalize speech that it finds offensivewhen such speech is remote from the actual practice of violence. They argue that while there

is no straightforward distinction between expression and action, in most cases, a line can bedrawn between the expression of radical political positions and criminal incitement. While thelatter is dangerous and should attract prosecution, a mature and robust democracy should beexpected to absorb offensive, violent, and unpalatable ideas without prosecuting them. On thisaccount, the most effective way of dealing with offensive, anti-social or dangerous speech isto allow it into the 'marketplace' of ideas in the hope that such opinions and beliefs will beargued against and eventually rejected. On the contrary, On one argument Mackinnon (1977),further argues that the words that advocate violence can create 'permissibility conditions' thatlegitimate violence, irrespective of whether any actual violence occurs. This argument is basedon the idea that all speech is a type of action. The second justification is that seditious words arelikely to cause acts of violence and are thus necessary to protect the public interest. On this account,there is a causal connection between speech and action.

7Insult laws or seditious offences are often used to punish open discussion and criticism ofgovernment and public officials. In addition, the Botswana Penal Code section 93(1) prohibits anyperson from using abusive, obscene or insulting language to the President, MPs and public officersin a public place or public gathering. The penalty upon conviction for this offence is a fine notexceeding P400. For the purposes of this offence, a public gathering is defined as 'any meeting,gathering or concourse, whether in a public place or otherwise, which the public or section ofthe public or more than fifteen persons are permitted to attend, whether on payment or otherwise.This provision can be used indirectly to restrict the exercise of media freedom. Media practitioners,who ask questions at press conferences or other briefings that are perceived to be insulting, can beprosecuted under this provision (Balule, 2008). Sedition is still an offence. Any person who, interalia, prints, publishes or distributes a seditious publication is liable upon conviction toimprisonment for a term not exceeding three years. Sedition is defined to include 'an intention tobring into hatred or contempt or to excite disaffection against the person of the President or thegovernment of Botswana5'. The threat posed to media freedom by sedition laws must beunderstood in the context in which this offence was created.

Notwithstanding this laws journalists or media reporters can guard against sedition charges in anumber of ways. The most common advice is that as always should always get their facts straightand ensure that any accusations or allegations are well researched. But even then, it is entirelypossible for charges to be brought, particularly with regard to opinion pieces. A good example ishow sedition laws were used against journalists in Uganda. On several occasions, they wereprosecuted for opinion pieces. One article made fun of the canvassing efforts of President YoweriMusevenis ministers, commenting that they would be better off talking to the presidents cows.

This joke landed the journalist in prison for a week. Ugandas sedition laws were eventually

declared unconstitutional in 2010, following a court case that itself had lasted five years, with acourt judgement that resoundingly declared that the sedition law is a tool of repression(Mediadefence website, 2014).

5 Section 50(1) of the Penal Code

8ARREST FOR SEDITION IN BOTSWANA OF OUTSA MOKONE, SUNDAY STANDARDJOURNALIST

It was recently this year that one of Sunday standard journalist had fled to South Africa to seekasylum because of the charge of sedition against him by the government regarding an article hepublished which was about the President of Botswana being involved in an accident. Followinghis decision to seek asylum in South Africa the United States Embassy spokesperson release apress statement in this regard, the United States is deeply concerned by the arrest of newspapereditor Outsa Mokone by the Government of Botswana on charges of sedition relating to an articlepublished by his newspaper The Sunday Standard. The United States strongly values freedom ofthe press, which is a key component of democratic governance. Freedom of expression and mediafreedom, both of which foster the exchange of ideas and facilitate transparency and accountability,are essential components for democracy. Outsa Mokones arrest is inconsistent with these

fundamental freedoms and at odds with Botswanas strong tradition of democratic governance

(Harf, 2014). Not only did this concern the United States only and also South Africa as well andinterestingly the government of Botswana responded in a hostile political manner.

In addition this is how the Government of Botswana responded to the US press statement TheGovernment of Botswana notes with dismay a press statement attributed to Ms. Marie Harf,Deputy Department Spokesperson U.S. State Department, expressing concern about the arrest ofMr. Outsa Mokone. We are, moreover, of the view that if the Government of the United States ofAmerica is concerned about the detention of journalists, they might be better placed to deal withcurrent allegations of abuse in their own country, such as the recent alleged assault and detentionwithout charge by law enforcement personnel of the Washington Post reporter Mr. WesleyLowery, while he was attempting to cover the unrest in Ferguson Missouri, subsequent to the fatalpolice shooting of 18 year old Michael Brown (BW_government, 2014).

With the above statement one would easily pick the disparities between the two states on mediafreedom but it was disappointing on the part of the government of Botswana to have responded inthat way because the United States Spokesperson was being objective about the issue of Mediafreedom in Botswana. In addition, to some degree, journalist are not free in Botswana as opposedto those of the United States and there is need for improvement in Botswana, for the governmentto see private media as a watchdog to its activities.

9PART III: NATIONAL SECURITY AND MEDIA FREEDOM, A CRITICAL ANALYSISNational Security, as a concept in the contemporary structure of a Nation State, is highly entwinedwith the facilitation of governance, which is the effective management of national affairs of a

country at all levels of its functioning and execution, aimed at maintaining the integrity of thenation and the security of its people. National security6 in our context is taken to mean theprotection of nation states from external and internal threats to their national threats7. Botswanahas An Act to make provision for National Security, and other activities prejudicial to the interestsof the Nation, and other matters incidental to or connected therewith thus the National SecurityAct8 of 2005. To achieve good governance, it becomes essential for the authorities to exercisepolitical, economic and judicial procedures in a manner, which ensures that the people are giventheir freedom to fulfil their duties, and resolve their disputes as is allowed in the writtenconstitution (Abraham, 2012). The media has historically been government watchdogs. The presssees itself as performing a watchdog function to protect the public's interest and to inform thepublic on the vital issues of the day. It has been a hallmark of the news media to guard itsindependence and to investigate alleged wrongdoing, particularly on the part of government andthose in positions of power (Robinson L., n.d).

As Abraham, (2012) observed that there has been a change in news reporting and informationhandling with an increase in the media pressure on State, to extract and attain information onsecurity related issues of public relevance, mainly from the officials and the Government.This has, in turn, played an impact upon national security decision making depending on itsrelevance and sensitivity, and creating an impact that resonates with the public mood. It hasbecome important for the officials to provide information on national security to the media becausealong with independent civil society actors, the media plays an important role in monitoringsecurity institutions and helps to ensure their effective functioning and accountability to the public.

Most states in the SADC region have embraced democratic governance and have constitutionalprovisions guaranteeing the freedoms of expression and of the media. Botswana constitution is no

6 The States primary national security concern is survival. Strong states, whose internal stability is assured, havehistorically tended to frame their national security in terms of protection from military threats from outside theirborders. Weaker states by contrast have tended to do so in terms of Protection from internal dangers, such asrevolution, coup detat and insurgency (Robinson, 2008)7 The core objectives of National Security policy are often hotly contested (Robinson, 2008)8 CAP 23:01

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exclusion section 12 reads thus, Except with his or her own consent, no person shall behinderedin the enjoyment of his or her freedom of expression, that is to say, freedom to hold opinionswithout interference, freedom to receive ideas and information without interference, freedomtocommunicate ideas and information without interference (whether the communication be to thepublic generally or to any person or class of persons) and freedom from interference with his orher correspondence. These rights are not absolute. However, many of the states still have insultlaws on their statute books. In an overview of defamation and insult laws in the region, the GlobalCampaign for Free Expression, observed that public figures in SADC member states areoverprotected from criticism in the performance of their official duties by these laws. (Balule,2008). In America for instance, Alexander Bickel characterized the American approach toprotecting national security secrets as an "unruly contest" between government and the press.On this view, the government's role is to classify information that ought be kept secret and tostop leaks at the source, but not to take action against the media. The "presumptive duty of thepress, meanwhile, "is to publish." A news outlet that discovers a government secret decideson its own whether publishing that secret is in the public interest (Media Incentives andNational Security Secrets, 2009). This is an ideal situation and a model that Botswana governmentcould use when it deals with the media.

Some secrecy is essential to both national security and democracy, but excessive secrecyundermines democratic accountability and decision making, and sometimes national securityitself. Disclosure decisions in a democracy thus must balance the importance of public knowledgeand deliberation against the risk of exposing and undermining desirable policies or damagingnational security. A free press is essential to informing the public, but critics urge that reportersare less accountable than the government they seek to check. The press wields vast power toundercut desirable classified programs and to communicate the nation's capabilities andvulnerabilities to the enemy, and its publication decisions are ad hoc. Government cannot evaluatewhat the public ought to know, and judges may be incompetent to measure national securityharms. Some scholars have responded to the impossibility of balancing and the potential forjournalistic mistakes by suggesting that criminal liability ought to be available in the rarecase where damage to national security is extremely "serious" or "grave," a standard that issometimes paired with a requirement that the reporter (or leaker) intended the damage. Butthese standards are unlikely to deter undesirable publications. Intent to cause harm is largely

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inapt here, as it can bear little correlation to the harm actually caused. Moreover, it is notthe relevant culpable intent. Reporters will rarely intend to damage national security, but theymight discount it because they hope to win a Pulitzer (Media Incentives and National SecuritySecrets, 2009).

Constitutional lawyers can also advance their understanding of the kinds of interests that warrantinfringing freedom of expression. One cannot overemphasize the importance of the role that theproportionality test should play in such an exercise. Not only does it force one to spell outdifferent interests that have traditionally been grouped under the heading national security orthat should now be viewed as warranting special protection given the realities of our modernday political economy, but it also forces one to craft governmental powers to ensure that theydo not infringe rights any more than is absolutely necessary in order to secure a given interest(Atkey, 1991). Moreover, in Botswana there is An Act to establish a Media Council for Botswanafor the purpose of preserving the maintenance of high professional standards within the media andto provide for matters related thereto9. Therefore the Media Council is established to ensureaccountability on part of the media when addressing issues of national security in Botswana.

CONCLUSIONIt has been elucidated in most part of this paper that the Media plays a vital role in any democraticstate and its contribution to good governance and accountability cannot be overemphasized. Themedia promotes the free flow of information and ideas, thereby guaranteeing the right of thepublic to be informed on matters of public concern and is a linkage institution in that it links thegeneral public with the government officials. However, the media in Botswana is still faced withchallenges such as seditious offences and issues of national security. The establishment of theMedia Institute of Southern Africa and the Media Council in Botswana was an effort by thegovernment to address these challenges faced by the media, even though Rome was not built inone day hopefully in the future, the government of Botswana would fully appreciate thesignificance of private media and cooperate with it in addressing issues of public interest, thussuppressing the insult laws as is the case in other states.

9 MEDIA PRACTITIONERS, CAP 61:09

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Tshephaone Reasentse

20th November 2014

PLAGIARISM DECLARATIONI , the author of this paper do hereby acknowledge that thecontents and information contained therein were compiled and analysed by me thus any otherinformation forming part of this report are/were cited where necessary to acknowledge otherauthors from whom I referred to. Any deceiving information or content provided thereof despitethis declaration shall be subjected to the provisions provided therein the University of BotswanaAcademic Policies and upon perusal whether in full or partial, plagiarized content of this papershall result to a failing grade by the instructor.

Submitted on the __________Day of _____________ month, _______________ year

Authors Signature:

________________________________

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REFERENCESAbraham, R. (2012). Media and National Security. New Delhi: KW Publishers Pvt ltd.

Atkey, R. (1991). Reconciling Freedom of Expression and National Security. The University ofToronto Law Journal, Vol.41, No. 1, 38-59.

Balule, B. T. (2008). Insult Laws: A Challenge to Media Freedom in SADC's fledgingDemocracies? The comparative and International Law Journal of Southern Africa, Vol.41, No.3, 404-427.

Broadcasting Regulations Subsidiary Legislation. (2010). Gaborone: Government Printer.

BW_government. (2014, November 18). RESPONSE TO US STATE DEPARTMENT PRESSSTATEMENT ON MR. MOKONE. Retrieved fromhttps://www.facebook.com/permalink.php?story_fbid=688968094519185&id=148228411926492

Constitution of Botswana. (2005). Gaborone: Government Printer.

Harf, M. (2014, November 18). On Arrest for Sedition in Botswana of Outsa Mokone. Retrievedfrom https://www.facebook.com/U.S.EmbassyGaborone/posts/10152667315540359

Jewkes, Y. (2004). Media and Crime: Key Approaches to Criminology. London: SagePublications.

Mackinnon, P. (1977). Conspiracy and Sedition as Canadian Political Crimes. McGill LawJournal, 622-643.

Media Incentives and National Security Secrets. (2009). Harvard Law Review, Vol. 22, No. 8,2228-2249.

Media Practitioners Act. (2008). Gaborone : Government Printer.

Mediadefence. (2014, November 18). Explaining Issues: Sedition. Retrieved from MediadefenceWebsite: http://mediadefence.org/stories/explaining-issues-sedition

MISA. (2014, November 18). Botswana-Media Institute of Souther Africa. Retrieved from MISAWeb site: http://www.misa.org/misa-chapters/botswana

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Penal Code. (2005). Gaborone: Government Printer.

Republic of Botswana-Government portal. (2014, November 18). Retrieved from BW Governmentwebsite: http://www.gov.bw/ministries--Authorities/Ministries/State-President/

Robinson, L. (n.d.). National Security, the Law and the Media: Shaping Public Perceptions.International Law Studies, Vol.83, 198-202.

Robinson, P. (2008). Dictionary of International Security. Cambridge: Polity Press.

Sedition. (2013). Encyclopedia Britannica. Encyclopedia Britannica Ultimate Reference Suite,Chicago.

Sorial, S. (2010). Can Saying Something make it So? The Nature of Sedious Harm. Law andPhilosophy, Vol.29, No.3, 272-305.