University of Botswana Law Review Volume 12, June 2011

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The University of Botswana Law Journal is a peer refereed journal published twice a year. It provides a forum for scholars and practitioners to reflect on diverse legal issues of national, regional and international significance and of local and regional relevance.PatronThe Hon. Justice Nganunu, Chief Justice of BotswanaInternational Editorial Advisory BoardProf. D. D. N. Nsereko, Judge, International Criminal Court, The Hague, The NetherlandsProf. W. Du Plessis Faculty of Law, North-West University (Potchefstroom Campus), South Africa Prof. T. Maluwa H. Laddie and Linda P. Montague Professor of Law, Dickinson School of Law, Penn. State University, USA Prof. M. Reisman Myres McDougal Professor of Law, Yale Law School, New Haven, USA Prof. K. Frimpong Ghana Institute of Management and Public Administration, (GIMPA), Accra, Ghana Prof. S. Roberts Department of Law, London School of Economics, United Kingdom Prof. A. McCall Smith Edinburgh Law School, University of Edinburgh, United Kingdom Prof. C. Forsyth Faculty of Law, Robinson College, University of Cambridge, United Kingdom Prof. B. Othlogile Vice Chancellor, University of Botswana Dr. A. Molokomme Attorney-General, BotswanaEditorial BoardProf. Peter Takirambudde Editor-in-Chief, University of BotswanaMrs. E. Macharia-Mokobi Secretary, University of BotswanaDr. K. Solo University of BotswanaProf. C. Ngongola University of BotswanaProf. J. Kiggundu University of BotswanaProf. E. K. Quansah University of BotswanaDr. O. B. Tshosa University of BotswanaMr. T. Sebego Vice chairman, Law Society of Botswana

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• Droit
• JUSTICE

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• Publié par: PULP (Pretoria University Law Press)
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

UNIVERSITY OF BOTSWANA LAW JOURNAL The University of Botswana Law Journal is a peer refereed journal published twice a year. It provides a forum for scholars and practitioners to reflect on diverse legal issues of national, regional and international significance and of local and regional relevance. PATRON The Hon. Justice Nganunu, Chief Justice of Botswana. INTERNATIONAL EDITORIAL ADVISORY BOARD Prof. D. D. N. Nsereko, Judge,InternationalProf. S. Roberts Criminal Court, The Hague, The Netherlands Department of Law, London School of Economics, United Kingdom. Prof. W. Du Plessis Faculty of Law, North-West UniversityProf. A. McCall Smith (Potchefstroom Campus), South Africa. Edinburgh Law School, University of Edinburgh, United Kingdom. Prof. T. Maluwa H. Laddie and Linda P. Montague Professor of Law,Prof. C. Forsyth Dickinson School of Law, Penn. State University, Faculty of Law, Robinson College, University of USA. Cambridge, United Kingdom.

Prof. M. Reisman Myres McDougal Professor of Law, Yale Law School, New Haven, USA.

Prof. K. Frimpong Ghana Institute of Management and Public Administration, (GIMPA), Accra, Ghana

EDITORIAL BOARD

Prof. Peter Takirambudde Editor-in-Chief, University of Botswana.

Mrs. E. Macharia-Mokobi Secretary, University of Botswana.

Dr. K. Solo University of Botswana.

Prof. C. Ngongola University of Botswana.

Prof. J. Kiggundu University of Botswana.

Prof. E. K. Quansah University of Botswana.

Dr. O. B. Tshosa University of Botswana.

Mr. T. Sebego Vice chairman, Law Society of Botswana

Prof. B. Othlogile Vice Chancellor, University of Botswana.

Dr. A. Molokomme Attorney-General, Botswana.

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All correspondence concerning articles and other submissions should be addressed to:

The Editor-in-Chief University of Botswana Law Journal Department of Law University of Botswana Private Bag UB 00705 Gaborone Botswana

Email submissions: [e-mail] Guidelines on the preparation and submission of articles and other contributions can be found on the inside back cover of each issue. More detailed guidelines will be supplied on request.

SUBSCRIPTIONS All business correspondence, including orders and remittances relating to subscriptions as well as advertising should be addressed to the Editor-in-Chief. SUBSCRIPTION RATES(All rates include postage) Annual institutional rate Annual individual rate (Africa) P 280 (US $50). (Africa) P 100 (US $ 20)

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The mode of citation of this Journal is: 12 UBLJ (2011) ©UBLJ, 2011. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the written permission of the publisher. ISSN 1817-2733

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UNIVERSITY OF BOTSWANA LAW JOURNAL

VOLUME 12 JUNE 2011

ARTICLES

The Botswana Media Practitioners Act, 2008: Does it Preserve ................3 Media Freedom or is it a Case of Taming the Beast? B.T. Balule

Food-aid and Human Rights: A Development-Centered Approach .........23 E. Droll

Progressive Realization of the Right to Safe Water and...........................53 Adequate Sanitation O. Gbadamosi

Operationalizing the Rio Principles: Using the Success of ......................73 the Extractive Transparency Initiative to Create a Frame Work for Rio Implementation A. Friedman

Elected Citizenship as a Resolution to Contested States: .........................87 Applying the Northern Ireland Model to a Two State Solution in the Israeli-palestinian Conflict J.U. Ginsburg

The Independence of Auditors in Public Listed Companies ..................117 under Indian Law in Comparative Perspective S.V. Adithya Vidyasagar

Upgrading Nigerian Law to Effectively Combat Cybercrime:...............143 The Council of Europe Convention on Cybercrime in Perspective O.E. Kolawole

COMMENTS

The New European Union-africa Trade Regime: Are Good ..................163 Intentions Sufficient? B.D.D.M Radipati

On Sino-Africa Relationship and Legal Cooperation.............................173 Xia Xinhua & Xiao Haiying

2 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2011

BOOK REVIEW

The Shallows: What the Internet is doing to our Brains .........................185 N. Goltz

ARTICLES

3

The Botswana Media Practitioners Act, 2008: Does it preserve media freedom or is it a case of taming the beast?

ABSTRACT

B.T. Balule*

Media self-regulation is said to be vital for safeguarding media independence and enhancing media professionalism. While there appears to be consensus on the importance of media self-regulation, there seems to be divergent views on what is self-regulation in the media. The Botswana Parliament has enacted the Media Practitioners Act, 2008, a law whose objectives, among others, is aimed at the preservation of media freedom and promotion high professional standards in the media through self-regulation. Although the Act was enacted with the object of promoting self-regulation in the media, critics of the law argue that it falls short of the principles of self-regulation and thereby undermines media freedom. This article critically examines pertinent provisions of the Act to determine whether the law promotes or undermines self-regulation in the media.

1.

INTRODUCTION

On 11 December 2008, the Botswana National Assembly passed the Media Practitioners Act, 2008 (hereinafter, MPA). The Act received presidential assent on 22 December 2008, and came into effect on 31 December 2008. The objects of the Act as set out in the Memorandum to the Media Practitioners Bill, 2008 is ‘to establish a Press Council which will act as a self-regulating body that will monitor the activities of the press and ensure the maintenance of high professional standards, and to provide for the registration and accreditation of media practitioners’. The Act aims at promoting self- 1 regulation in the media in line with the country’s 2016 vision document. This document calls for freedom of the press to be guaranteed in law and practice 2 and that the media should regulate itself. Self-regulation in the media is premised on two propositions: (a) that in a democracy, the press must be free, especially from state control; and

* 1 2

LLB (Botswana); LLM; PhD (Edinburgh). Senior Lecturer-in-Law, University of Botswana. Long Term Vision for Botswana: Towards Prosperity for All(Government Printer, 1997). Ibid,at p. 35.

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3 (b) that the media should be responsible and accountable.

The objectives of the Media Council established under the MPA, include among others, the preservation of media freedom and ensuring the 4 maintenance of high professional standards in the media. The enactment of the Act has, however been met with fierce objections and outcry from the 5 media. The media industry argues that the Act falls short of the principles of independency, political non-interference and the promotion of self- 6 regulation. One critic of the Act argues that the law has far-reaching implications for the media as it criminalises citizens’ involvement in media activities, narrows the scope of media practice and undermines editorial 7 independence. He further argues that the Act limits basic civil and 8 democratic liberties. Critics of the MPA do not believe that the enactment of the law was a genuine move by government to promote media freedom. They perceive the passing of the law as an attempt by the government to control the media, particularly, the private media. The government and the private media in Botswana have always had an acrimonious relationship because of the 9 latter’s vibrant inquiry into public policy issues. In the 1980s, when the private media was emerging in the country, a senior government minister referred to it as a ‘monster that was threatening to gobble the nation’, and 10 called for its regulation. In 1997, the government proposed a Mass Communications Bill, which sought to establish, among others, the registration of newspapers, a press council and registration of journalists. The government was forced to withdraw the Bill after national and international protests against the proposed law. More recently, there have been attempts by 11 the government to starve the private media of public sector advertising. It is therefore not surprising that those opposed to the MPA see it as yet another attempt by the government to tame the private media, which it has likened to a monster in the past. Media publishers have threatened to challenge the constitutionality of the Act in the High Court on the basis that the law is

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D. Flint, ‘Media Self-Regulation’ in T. Campbell and W. Sadurski (eds),Freedom of Communication (Dartmouth Publishing Company, 1994) p.281. Section 5 (a) and (b), Media Practitioners Act, 2008. ‘Media Position Paper on Media Practitioners Bill’,Mmegi, 24 July 2008. Ibid. T. Sebina, ‘Botswana: National Overview” in Media Institute of Southern Africa,So This is Democracy? State of Media Freedom in Southern Africa 2008,(Media Institute of Southern Africa, 2008) p.15 at p.16. Ibid. See African Media Barometer: Botswana 2009 (Media Institute of Southern Africa and Friedrich-Ebert Stiftung, 2009). M. Leepile, ‘The Contribution of the Regional Media to the Democratic Process’ in M. Leepile (ed) Botswana’s Media and Democracy: Selected Papers from the Seminar on the Media in a Democracy, Gaborone, February - March, 1994(Mmegi Publishing House, 1996) p. 101. See B.T. Balule, ‘Manipulating Media Content: Public Sector Advertising in the Press in Botswana – A Comment onMedia Publishing v Attorney General of Botswana’ (2004) p.20South African Journal of Human Rights653.

THE BOTSWANA MEDIA PRACTITIONER’S ACT 5

12 detrimental to freedom of expression. The aim of this article is to interrogate some provisions of the Media Practitioners Act and the arguments that have been raised against the Act with a view to determine whether the law as whole promotes or impedes media freedom. The paper will focus on the following specific issues that have been raised against the Act: (a) whether a statutory media council is inconsistent with self- regulation; (b) is the media council independent from the state; (c) does the registration and accreditation of media practitioners violate media freedom; and (d) whether the right of reply in the Act infringes upon media freedom.

Critics of the MPA question its constitutionality contending that it unjustifiably infringes upon media freedom. In assessing whether the arguments against the Act can be sustained, one must necessarily start with an examination of the protection of media freedom under the Constitution and the extent to which restrictions on the freedom are permissible.

2.

PROTECTION OF MEDIA FREEDOM UNDER THE CONSTITUTION

The Constitution of Botswana does not expressly guarantee media freedom but implicitly guarantees it as an aspect of the greater right to freedom of expression. Section 12 (1) provides: ‘Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence’.

The view that the Constitution guarantees media freedom has been endorsed by the High Court in a number of its decisions. InMedia Publishing (Pty) Ltd v The Attorney General and others,the court opined that ‘freedom of 13 the media is but one aspect of freedom of expression.’ And in another case, the High Court held that the right to freedom of expression guaranteed under

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‘Media take govt to court’,Botswana Guardian, 13 March 2009. Although media publishers have threatened to challenge the legality of the Act, at the time of writing, they had not yet filed a case with the High Court. [2001] 2 BLR 485 at p. 494.

6 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2011

14 the Constitution ‘applies to every person including newspapers.’ These two decisions are consistent with the theory that the guarantee of freedom of expression goes further than the theoretical recognition of the right to speak or to write. The right also includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them 15 reach as wide an audience as possible. The Constitution does not guarantee an absolute right to media freedom. The exercise of media freedom guaranteed under section 12 (1) is subject to section 12 (2), which reads: ‘Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision – (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or (b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless, broadcasting or television; or (c) that imposes restrictions upon public officers, employees of local government bodies, or teachers, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society’.

Section 12 (2) incorporates a three-part test in the determination of the legitimacy of restrictions on media freedom. First, the restriction must be ‘done under the authority of any law’. The Supreme Court of Zimbabwe has held that this phrase, although worded differently from such equivalent phrases as ‘provided by law’, ‘prescribed by law’ or ‘in terms of the law’, used in other constitutional and human rights instruments, carries 16 substantially the same meaning. The court held that, to satisfy this test, the law must be adequately accessible and formulated with sufficient precision to 17 enable a person to regulate his/her conduct. To further satisfy this test, not only must a law that restricts media freedom be foreseeable, it must also be

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Khimbele v Sebonego and others; Caphers v Sebonego and others[2001] 2 BLR 105 at p.118. See Inter-American Court of Human Rights, Advisory Opinion OC-5/85 of 13 November, 1985, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts 13 and 29 American Convention on Human Rights)at para 13. Chavunduka & another v Minister of Home Affairs[2000] 4 SA 1. Ibidat p.12.

THE BOTSWANA MEDIA PRACTITIONER’S ACT 7

compatible with the rule of law. That is, if the law confers discretionary powers on the executive, adequate guidelines as to the exercise of the discretion must be provided and they should be mechanisms to control or limit 18 the exercise of the power. Second, a restriction must serve one or more of the legitimate purposes enumerated in sub-paragraphs (a), (b) and (c) above. Third, the restriction should be shown to be reasonably justifiable in a democratic society. What is reasonably justifiable in a democracy has been 19 said to be an elusive concept that defies precise definition. The Zimbabwean Supreme Court has however opined that the reasonableness of a provision that restricts fundamental rights and freedoms should be judged on whether it arbitrarily or excessively invades the enjoyment of the right according to the standards of a society that has a proper respect for the rights and freedoms of 20 the individual. The court subsequently formulated a three-part test in determining whether or not a limitation on fundamental rights and freedoms is 21 permissible in the sense of not being shown to be arbitrary or excessive. The court held that in determining the reasonableness of a limitation on fundamental rights and freedoms, the following questions must be answered: (i) whether the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) whether the measures designed to meet the legislative objective are rationally connected to it; (iii)are the means used to impair the right or freedom no more than 22 is necessary to accomplish the objective?

In addressing the third question, a court will be called upon to engage in a balancing exercise. It must weigh the impact of the limitation upon the right of the individual against the importance of the legislative objective. The importance of the objective must be measured against the gravity of the infringement of the protected right. This will entail weighing the significance of the public interest in the restriction against the seriousness of the 23 infringement of the private right protected by the Constitution. Any limitation on or interference with media freedom that does not comply with the three-part test set forth in section 12 (2) of the Constitution will be unjustifiable and therefore unconstitutional. Thus the arguments by critics of the MPA that the law is unconstitutional can only be sustained if it can be demonstrated that the Act or some of its provisions do not comply with

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SeeThe Law Society of Zimbabwe v The Minister of Transport and Communications(2004) AHRLR 292 at p.298 (ZwSC 2004). SeeWoods v Minister of Justice, Legal and Parliamentary Affairs[1995] 1 SA 703 at p.706. Ibid. Nyambirai v National Social Security Authority and another[1996] 1 SA 636. Ibid,at pp647 -648. Ibid, at p.648.

8 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2011

section 12 (2) of the Constitution of Botswana. The next part of this paper examines some of the contentious provisions of the MPA to determine whether they conform to the constitutional test or not.

3.

IS A STATUTORY MEDIA COUNCIL A VIOLATION OF MEDIA FREEDOM?

The fundamental objectives of self-regulation in the media are to provide protection for members of the journalistic profession; to hold individual journalists accountable to their profession and to hold media outlets 24 accountable to the public. While there may appear to be consensus on the objectives of self-regulation, there are divergent views on what is self- regulation in the media. The term self-regulation has been defined as referring to a situation where a group of persons or bodies, acting together, perform a regulatory function in respect of themselves and others who accept their 25 authority. Julia Black argues that the term self-regulation implies no particular relationship with the state and identifies four possible 26 relationships:  Mandated self-regulation, where a profession or industry is required or designated by the government to formulate and enforce norms within a framework defined by the government in broad terms;  Sanctioned self-regulation, which is a situation where a collective group itself formulates regulation which is then subjected to government approval;  Coerced self-regulation, where a profession itself formulates and imposes regulation but in response to threats by government that if it does not, government will impose statutory regulation; and  Voluntary self-regulation which is a case where there is no active state involvement, direct or indirect, in promoting or mandating self-regulation.

The regulatory regime created under the MPA would fall under mandated self-regulation in terms of the above classification of self-regulatory regimes. The Act establishes a Media Council whose objects, among others, is to uphold standards of professional conduct and promote good ethical standards and discipline among media practitioners in accordance with a code 27 of ethics issued by the Council. The Act goes on to prescribe in general

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Article 19,Freedom and Accountability: Safeguarding Free Expression Through Media Self-Regulation (Article 19, 2005) p.7. J. Black, ‘Constitutionalising Self-Regulation’ (1996) 59Modern Law Review24 at p.27. Ibid. See section 5 (b) and (c).

THE BOTSWANA MEDIA PRACTITIONER’S ACT 9

terms the content of the Code of Ethics which must be adopted by the 28 Council. There is another school of thought that argues that self-regulation in the media refers to a set of rules and implementation bodies that were voluntarily established by media professionals themselves. It argues that self- 29 regulation should be a free choice of the journalists. Franz Kruger, in his book on press councils in the Southern African region subscribes to this 30 view. When commenting on the Media Council established under the MPA, he argues: “In Botswana … the government has launched a full frontal attack on the principle of self-regulation, by pushing through the Media Practitioners Act. Besides establishing a licensing system for journalists, the law sets up a statutory Media Council, even though 31 a self-regulatory council already exists.”

Critics of the MPA in Botswana rely on the above definition of self- regulation in the media because they contend that the statutory Media Council created under the Act conflicts with the statement in the Vision 2016 32 document that calls for the media to regulate itself. In view of the different conceptions of self-regulation in the media, it seems that there is no uniform or unequivocal concept of self-regulation in the media. The political, legal and cultural traditions of a particular state, it seems, 33 will influence the suitable model of self-regulation. In the case of Botswana, the government cited what it perceived to be lack of adequate enforcement mechanisms of the voluntary Press Council and ineffectiveness of moral sanctions as justification for a statutory Media Council.  Article 19, the Global Campaign for Freedom of Expression, acknowledges that self-regulation in the media is diverse. While its preferred option is a voluntary body, it recognises that in some cases, a statutory body 34 may be the only realistic option. It however cautions that if a media self- regulatory body is created, it should be: (i) independent from government, commercial and special interests; (ii) established via a fully consultative and inclusive process; (iii)democratic and transparent in their selection of members and decision-making;

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Section 9 (3). Council of Europe Directorate of Human Rights, ‘Proceedings of the Information Seminar on Self- Regulation by the Media’ (Council of Europe, 1999) p.2. F. Kruger,Media Courts of Honor: Self-regulatory Councils in Southern African and Elsewhere (FESMEDIA Africa, 2009). Ibid, at p. 7. ‘Media take govt to court’,Botswana Guardian, 13 March 2009. Council of Europe Directorate of Human Rights, ‘Proceedings of the Information Seminar on Self- Regulation by the Media’op. cit. Article 19, ‘Conference Report on Freedom and Accountability: Conference on Media Self-Regulation in South-East Europe (Article 19, the Global Campaign for Freedom of Expression, 2005) p. 7.

10 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2011

(iv)include a tripartite representation of journalists, media owners and the public; and (v) have the power to impose only moral sanctions.

It is submitted that a statutory media council is notper sea violation of media freedom as contended by critics of the MPA. A statutory media council may be established to redress the failure of the local media in regulating its activities to the satisfaction of the people. But where a media council is created by statute, the critical question should be whether the body is independent of the state. The mere fact that the Media Council is a creature of an Act of Parliament is not conclusive that its existence amounts to a violation of media freedom. It will be a violation of media freedom if it is found, among other things, that it is not independent from the government. There are living examples that a media council created by statute can be independent of the government. These include media councils in Belgium, Denmark, Portugal, India and Ghana. The laws establishing media councils in these countries have elaborate provisions that ensure their independence and keep their governments at arms length in the appointment of their members, 35 thereby ensuring that their integrity is not compromised. The motive behind the establishment of a statutory media council, it is submitted, should also be relevant in determining its legality. It has been observed above that the objectives of self regulation in the media are to provide protection for members of the journalist profession and to hold individual journalists and media outlets accountable, respectively. Any self regulatory regime imposed on the media by statute that is not aimed at achieving these objectives, would, in the writer’s opinion, raise doubts on its legality. For example, in South Africa, there is currently intense debate on the legality of a proposed Media Appeals Tribunal (MAT) by the ruling African National Congress (ANC). In motivating its case for the MAT, the ANC is 36 arguing that the media must contribute to the transformation of the country. It contends that the media is a contested terrain that is not neutral, but reflects the ideological battles and power relations based on race, class and gender in 37 society. In the ANC’s view, the media are not merely reflective of what its audience want, but they also do have values and choices that help to shape social preferences. The ANC is lamenting what it perceives as ‘an astonishing degree of dishonesty, lack of professional integrity and lack independence’ on 38 the part of the print media in South Africa. The envisaged MTA is thus

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See generally Hong Kong Law Reform Commission, Privacy and Media Intrusion - Press Councils and Similar Bodies in Other Jurisdictions (2004) www.hklii.hk. See ANC, Media Transformation, Ownership and Diversity Discussion Document (2010), at para. 56. Ibid,para. 53. Ibid, para. 58.