INTRODUCTION
Freedom of expression is the lifeblood of a democratic society.Footnote 1 Democracy entails the right of people to participate in the political life of their societies by engaging in political discourse from an informed background and being proactive in forming and expressing their political will.Footnote 2 The media play the important role of facilitating the free flow of information that is critical for establishing the individual and collective levels of political awareness and engagement necessary for forming and expressing political will in a democracy. For the media to fulfil their role of promoting freedom of expression, journalists should be able to perform their work without fear of reprisals, attacks or other forms of intimidation or harassment.Footnote 3 Journalists across the world are subjected to various forms of human rights violations and abuses aimed at hindering and / or censoring them in performing their duties.Footnote 4 These violations include killings, torture, arbitrary arrests, detention, intimidation and harassment.Footnote 5 The Inter-American Court of Human Rights (IACtHR) has held that effective journalism can only be exercised “when those who carry out this work are not victims of threats or physical, mental or moral attacks or other acts of harassment”.Footnote 6 The African Commission on Human and Peoples’ Rights (African Commission) has pronounced that protecting journalists’ safety is one aspect of the freedom of expression guaranteed under article 9(2) of the African Charter on Human and Peoples’ Rights.Footnote 7 Violence against journalists committed as a form of retaliation for the exercise of their profession is inimical to democracy because it violates not only the victim's right to freedom of expression, but also society's right to seek and receive all types of information and ideas.Footnote 8 Harassment of journalists also undermines mechanisms of democratic accountability, especially where it is aimed at silencing journalists covering stories on political corruption, or abuses by the state or powerful private persons or entities.
Journalists in Botswana also face some challenges that impact negatively on their enjoyment of freedom of expression. Botswana has several restrictive criminal law provisions in its statute books that create offences that are used to harass and intimidate journalists. One such offence is sedition.Footnote 9 Sedition laws have been used in several countries against journalists to restrict those critical of the government.Footnote 10 The crime of sedition has been declared anachronistic and an unconstitutional encroachment on the right to freedom of expression in several jurisdictions around the world. Some countries, including a number in the region (especially former British colonies such as Lesotho, Malawi and Zambia) still have sedition laws in their statute books.Footnote 11 Eswatini (formerly Swaziland) also had the offence, but in 2016 its High Court found the law inconsistent with the guarantee of freedom of expression.Footnote 12 When the constitutionality of the provisions on sedition was raised in Botswana in Mokone v Attorney General and Others (Mokone),Footnote 13 freedom of expression activists were optimistic that the High Court would declare that the provisions unjustifiably limit the right to freedom of expression. This optimism was perhaps not misplaced, given the role that the judiciary is expected to play in protecting and promoting human rights. The judiciary is expected to ensure the enjoyment of human rights by interpreting laws and scrutinizing actions of other government organs to ensure that they remain lawful.Footnote 14 Responsibility for interpreting and enforcing fundamental rights and freedoms of the individual in Botswana rests on the judiciary.Footnote 15 It has been argued that the effectiveness of the Bill of Rights will depend on the ability of judges to breathe life and relevance into its provisions to ensure that they are not frozen in time.Footnote 16 Furthermore, because of the commonality, not only in the provisions of many bills of rights across the world but also the fact that they have been inspired by the same philosophy, it is not just possible, but imperative that judges investigate how human rights issues have been resolved in other jurisdictions.Footnote 17
The Court of Appeal of Botswana has held that, in interpreting the provisions of the Constitution of Botswana (the Constitution), especially with regard to fundamental rights, courts must adopt a generous and purposeful approach in order to breathe life into the Constitution, having regard to its liberal democratic values and, where necessary, the international human rights treaties to which Botswana has subscribed.Footnote 18 The court has also opined that constitutional derogations from fundamental rights, like penal statutes, should ordinarily be given a strict and narrow construction. The use of sedition laws against journalists constitutes a limitation on their right to freedom of expression through the application of penal sanctions. The aim of this commentary is to assess critically whether the High Court, in dealing with an application to declare the provisions on sedition unconstitutional, correctly applied the principles on interpreting constitutional provisions that guarantee fundamental rights of the individual and the limits on those principles.
THE LITIGATION IN MOKONE V ATTORNEY GENERAL AND OTHERS
Background
The applicant was the editor of the Sunday Standard, a weekly newspaper in Botswana. In its 31 August 2014 edition, the newspaper published an article in which it reported that the then president, Ian Khama, had been involved in motor vehicle accident while driving alone at night. On 2 September 2014, a warrant was issued for the arrest of the applicant, who was arrested on 8 September and detained at a police station. The warrant stated that the applicant had, through publication of the story about the president's alleged accident, committed the crime of sedition. The applicant subsequently lodged an urgent application before the High Court in which he sought various reliefs, including a declaration that the provisions on sedition are unconstitutional as their application infringed his right to freedom of expression. The applicant contended that the provisions were phrased in an excessively broad and vague manner, potentially resulting in both an overreach of the law and its abusive application.
The respondents argued, on the other hand, that peddling falsities against the president is a serious offence that has the potential to lead to public unrest and disrupt public peace and tranquillity. They also contended that newspapers are duty bound to exercise their freedom responsibly, without destroying the characters of others by spreading fiction and untruths.
High Court decision
In dealing with the issue of the constitutionality of the provisions on sedition, the court started by observing that freedom of expression is guaranteed under the Constitution, that it plays an important role in a democracy and therefore should be jealously guarded.Footnote 19 The court noted that freedom of expression is not absolute and that the Constitution provides a three-part test with which any restriction of the right must comply. The test requires that a restriction must be: contained in or done under the authority of the law; serve a legitimate interest; and be reasonably justifiable in a democracy. The test ensures that derogations from the right are narrowly construed.Footnote 20 However, instead of interrogating whether the provisions on sedition comply with all the components of the three-part test, the High Court only considered one aspect of the test: that the provisions serve the purpose of protecting the rights and freedoms of others and their dignity. Despite the applicant's arguments that the provisions were unconstitutional because they are vague, the court did not assess the provisions to determine whether they satisfy all the components of the constitutionality test. After considering only one component of the test, the court concluded:
“Despite that the sections may be considered by some as unconstitutional and repressive of freedom of expression as enshrined in the Constitution, the sections are, in my view, legal limitations to the said right so as to recognize and respect other persons [sic] rights and freedoms as well as to respect their dignity”.Footnote 21
The applicant appealed.Footnote 22 The Court of Appeal, however, avoided addressing the constitutionality of the impugned provisions. The court has established a general rule that, where it is possible to decide a case before it without having to decide a constitutional question, it must follow that approach.Footnote 23 The court declared the warrant of arrest against the appellant to have been invalid and concluded that, since the constitutional challenge was brought as part of the attack on the validity of the warrant, there was no point in embarking upon a constitutional investigation that would make no difference to the determination of the issues raised.Footnote 24 The failure by the Court of Appeal to address the constitutionality of sedition laws is inconsistent with the principle it has stated in several cases that the effectiveness of the Bill of Rights depends on the ability of judges to breathe life and relevance into its provisions. In its decision, the High Court acknowledged that sedition laws have been found to be unconstitutional and repress freedom of expression in other jurisdictions, but then found the Botswanan law constitutional. The Court of Appeal should have addressed this particular finding by the High Court, given the negative impact that sedition laws have on journalists’ enjoyment of freedom of expression in Botswana. A generous and purposeful interpretation of a provision of the Constitution requires that, when dealing with human rights issues, a court should investigate how similar issues have been resolved in other jurisdictions. The court should have explored the reasons why sedition laws have been found unconstitutional in other jurisdictions and discussed the relevance of those decisions in the Botswanan context. The Court of Appeal's failure to address the constitutionality of sedition laws is regrettable, because it constitutes a missed opportunity for the court to strengthen the protection of journalists’ freedom of expression in Botswana. By drawing lessons from international human rights law and comparative foreign jurisprudence, the court would have found sedition laws to be unconstitutional.
COMMENT AND ANALYSIS
The Constitution guarantees freedom of expression, as observed by the High Court in Mokone.Footnote 25 It is submitted that the constitutional provision covers a journalist's freedom of expression, because protecting the freedom goes further than the theoretical recognition of the right to speak or write, and includes the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible.Footnote 26 The three-part test, with which a restriction on freedom of expression must comply and to which the High Court referred in Mokone, is found in section 12(2) of the Constitution. This test is similar to that found in international human rights instruments to determine the legitimacy of restrictions on freedom of expression.Footnote 27 The discussion that follows analyses how the High Court applied or failed to apply the three-part test to the constitutionality challenge to the provisions on sedition.
Contained in or done under the authority of the law
Courts in Botswana are yet to pronounce on what this limb of the three-part test entails. Guidance on the requirements of this limb of the test can be sought from international human rights law and comparative foreign jurisprudence. A purposeful and generous interpretation of the provisions of the Constitution that would breathe life into the document would require courts to seek guidance from international human rights law and also investigate how similar issues have been resolved in other jurisdictions. In Zimbabwe, the Supreme Court had occasion to interpret a similarly worded provision in Zimbabwe's 1980 Constitution. It opined that, although worded differently from equivalent phrases such as “provided by law” or “prescribed by law” used in international human rights instruments, the phrase “contained in or done under the authority of the law” carries substantially the same meaning.Footnote 28 The court proceeded to say that, in order to satisfy this, the law must be adequately accessible and formulated with sufficient precision to enable a person to regulate his or her conduct.Footnote 29 In addition, not only must a law that restricts freedom of expression be formulated with sufficient precision, but it must also be 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 there should be mechanisms in place to control or limit exercise of the power.Footnote 30
The crime of seditious intention in Botswana is defined to include, inter alia, “an intention to bring into hatred or contempt or to excite disaffection against the person of the president or government of Botswana as established by law”.Footnote 31 A person who is found guilty of sedition is liable to imprisonment for a term not exceeding three years.Footnote 32 In his challenge to the constitutionality of the provision, the applicant was essentially saying that the provision fails the first limb of the constitutionality test, in that the definition of sedition is not formulated with sufficient precision to enable an individual to regulate his or her conduct, because it is excessively broad and vague. The High Court should have analysed the provisions on sedition, especially the definition, to determine whether they are formulated with sufficient precision to enable individuals to regulate their conduct, and also that they comply with the rule of law. While the judge acknowledged that the provisions have been considered by some to be unconstitutional and repressive in respect of freedom of expression, she concluded that the provisions on sedition are a legal limitation to freedom of expression as they serve to protect the rights and freedoms of others. The judge did not address the reasons why others have considered the provisions on sedition to be repressive with respect to freedom of expression, or whether such reasons have any relevance in Botswana. The High Court clearly failed to consider the first limb of the constitutionality test in the case. Had the court considered the first limb of the test, it could not have avoided concluding that the definition of seditious intention is not formulated with sufficient precision to enable individuals to regulate their conduct.
The provisions on sedition criminalize expression that brings into hatred or contempt, or that excites disaffection against the president or the government. The offence is premised on the subjective reactions of the recipient of the alleged seditious material. In a case where the legality of The Gambian provisions on sedition (worded identically to the Botswanan provisions) was in issue, the Community of Justice Court of the Economic Community of West African States held that the definition of seditious intention “espouses expressions of inexactitude which are also so broad as to be capable of diverse subjective interpretation”.Footnote 33 The court found the provision to be an unlawful limitation on freedom of expression as it was not formulated with sufficient precision. It held that restrictions on freedom of expression must be couched in the narrowest possible terms to enable speakers to appreciate the boundary between legality and illegality in their actions.Footnote 34 The Ugandan Constitutional Court also found a similarly worded provision unconstitutional on the basis that its wording has unlimited scope.Footnote 35 It is argued that Botswana's definition of seditious intention is wide and vague, and may include legitimate political criticism and thus have a chilling effect on freedom of expression, especially expression critical of government policy.Footnote 36 The provision can be easily abused to prosecute those who disseminate content that is considered offensive, shocking or disturbing to the majority or state authorities. It must be borne in mind that freedom of expression does not only apply to expression that is favourably received by the majority or state authorities, but also to expression that may be found offensive or not favourably received by the majority or state authorities.Footnote 37 In upholding the constitutionality of sedition provisions that are manifestly vague, the High Court failed to uphold a principle that was laid down by the Court of Appeal that derogations from fundamental rights must be given a strict and narrow, rather than a broad and generous, construction to give full effect to fundamental rights.Footnote 38
The application of the provisions on seditious intention involves a measure of subjectivity, because determining whether content is deemed to bring into hatred or contempt or excite disaffection against the president or government, is left to the absolute discretion of the prosecuting authorities. There are no objective criteria that individuals can use to avoid violating the provision. In Mokone, even though the story published by the newspaper turned out to be false, it is inconceivable how that could be said to have brought about hatred or contempt or excite disaffection against the president. The case demonstrates a classic scenario of how sedition laws can be easily abused under the guise of protecting an interest that was never under threat. The offence of seditious intention is very wide in scope, lacks clarity and does not comply with the legality principle that demands that criminal laws must be worded in strict and unequivocal terms, clearly restricting any punishable behaviour.Footnote 39 The definition of what will constitute seditious intention is left to the absolute discretion of the executive and there are no adequate guidelines as to the exercise of that discretion. The High Court should also have found the definition of seditious intention unconstitutional for failing to meet this aspect of the first limb of the constitutionality test.
Does it serve a legitimate interest?
Section 9(2) of the Constitution lists the legitimate interests that would justify limiting the right to freedom of expression. These include public order, defence, and the reputations, rights and freedoms of others. The High Court found that, on the facts of Mokone, sedition played the role of protecting the rights and freedoms of others. The High Court did not address the other argument raised by the respondents that sedition protects public order, as peddling falsities against the president has the potential to lead to public unrest and disrupt public peace and tranquillity. The critical question here is whether the crime of sedition in Botswana (which is based on merely creating disaffection or feelings of enmity in certain people, where there is no proof of a tendency to create public disorder by violence) can be said to serve any legitimate interest. It is contended that the provision serves no legitimate public interest because it criminalizes the publication of content that merely creates disaffection or feelings of enmity in certain people, without proof of a tendency to create public disorder.
Reasonably justifiable in a democratic society
The absence of domestic case law on the point means that guidance must be sought from international human rights law and comparative foreign jurisprudence on what this limb of the test entails. An interpretation of this provision of the Constitution that will breathe life and relevance into it demands that, when dealing with human rights issues, a court should investigate how similar issues have been resolved in other jurisdictions. The jurisprudence developed by the Zimbabwean Supreme Court on this issue is highly persuasive given that it relates to a provision similar in wording to the Botswana provision. The Zimbabwean Supreme Court has observed that what is reasonably justifiable in a democracy is an elusive concept that defies precise definition.Footnote 40 The court 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 proper respect for the rights and freedoms of the individual.Footnote 41 The court formulated a three-stage approach in determining whether or not a limitation on fundamental rights and freedoms is permissible in the sense of not being shown to be arbitrary or excessive.Footnote 42 The court held that, in determining the reasonableness of a limitation on fundamental rights, the following questions must be answered:
“(i) Is the legislative objective sufficiently important to justify limiting a fundamental right?
(ii) Are the measures designed to meet the legislative objective rationally connected to it? and
(iii) Are the means used to impair the right or freedom no more than is necessary to accomplish the objective?”Footnote 43
In addressing the third limb of the constitutionality test, a court will be called upon to engage in a balancing exercise. It must weigh the impact of the limitation upon the rights 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 infringement of the individual right protected by the Zimbabwean Constitution.Footnote 44 The approach by the Zimbabwean Supreme Court is consistent with that found under international human rights law, where the determination of whether a provision is reasonably justifiable in a democratic society raises two questions. First, whether the law responds to a pressing social need, and secondly that the interference should be no greater than is necessary to address the pressing social need.Footnote 45
The applicant in Mokone also argued that the vagueness of the definition of seditious intention could result in both an overreach of the law and its abusive application. The argument raises the question of whether the limitation imposed on freedom of expression through the application of sedition laws can be said to be reasonably justifiable in a democratic society. The High Court did not address this point. It is submitted that the High Court's analysis of the provisions on sedition should have resulted in a finding that the limitation on freedom of expression by application of the provisions is not reasonably justifiable in a democracy. Can the legislative objective behind sedition laws in Botswana be said to be sufficiently important to justify limitations on freedom of expression? The High Court acknowledged in Mokone the importance of freedom of expression, which it said must be jealously guarded.Footnote 46 The court, however, failed to guard the right to freedom of expression in the case.
There is consensus in international human rights law that, because of its importance in a democratic society, limiting freedom of expression can only be justified by the existence of a pressing social need.Footnote 47 This point has been aptly articulated by the Supreme Court of India, which has held that, “our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered”.Footnote 48 The court went further to say the anticipated danger should not be far-fetched.Footnote 49 The court held that a crime of sedition that is based on merely creating disaffection or feelings of enmity in certain people, where there is no proof of a tendency to create public disorder by violence, did not justify limiting freedom of expression.Footnote 50 The same argument applies to the crime of sedition in Botswana. It can thus be said that the legislative objective behind Botswana's sedition laws is not sufficiently important to limit freedom of expression. While the High Court in Mokone said that freedom of expression should be jealously guarded, the ease with which the court found sedition laws to constitute a legitimate limitation on freedom of expression is not consistent with that approach.
The second question in determining whether a limitation on freedom of expression is reasonably justifiable in a democracy is whether the measures designed to meet the legislative objective are rationally connected to it. The respondents in Mokone justified sedition laws by arguing that peddling falsities about the president could lead to public unrest and disorder. While this may be a legitimate interest justifying a limitation on freedom of expression, the ambit of the provisions on sedition is wider. It may be reasonable to proscribe expression that incites or encourages violence against lawfully constituted authority, but the offence of seditious intention proscribes expression far wider than that which incites violence or insurrection against lawfully constituted authority. The categories of content covered by the provision are unduly broad. The offence created under the provision is therefore a disproportionate limitation on freedom of expression.Footnote 51
The history and objectives behind sedition laws raise a convincing argument as to why the law should also not be considered to be sufficiently important to limit the right to freedom of expression. It has been observed that sedition laws originated in England, from a time when society's governors were considered to be superior beings, exercising a divine mandate, by whom laws, institutions and administrations were given to be obeyed, and who were beyond criticism for what they did.Footnote 52 In Botswana, the crime of sedition is a colonial relic. Botswana, then Bechuanaland, was declared a British Protectorate in 1885 and became a self-governing democratic state in 1966. Sedition laws in the country's statute books are a colonial legacy. In modern democratic societies, there is little scope for restricting freedom of expression in the area of public debate and public figures are expected to tolerate a greater degree of criticism.Footnote 53 The African Court of Human Rights has opined that freedom of expression in a democracy must be subject to a lesser degree of interference when it occurs in the context of public debate relating to public figures.Footnote 54 A law that purports to protect public figures, such as the president, against criticism has no place in a democracy. Sedition laws can easily be used to punish those who criticize the president or government in Botswana. Sedition laws are thus undemocratic and anachronistic, have no place in a modern democracy and cannot constitute a justifiable limitation on freedom of expression.
CONCLUSION
The judiciary plays an important role in defining the scope and limits to freedom of expression. In Botswana, the Court of Appeal has held in many cases that, in interpreting and enforcing fundamental rights, judges must breathe life and relevance into the provisions of the Constitution to ensure that they are not frozen in time.Footnote 55 In order to achieve this, judges must embrace the gradual but progressive internationalization of constitutional law when dealing with human rights.Footnote 56 This approach recognizes that the Constitution is not a static document, but a living and organic instrument, rather than a lifeless museum piece that must be interpreted to reflect the mores of the time.Footnote 57 There is another school of thought that says that the role of judges is to interpret mechanically the law that Parliament enacted.Footnote 58 This approach would unfortunately render the Constitution a static document frozen in time. Although the Court of Appeal of Botswana has consistently urged courts to interpret the provisions of the Constitution in a progressive and purposeful manner, it is regrettable that the High Court failed to take this approach in Mokone. The manner in which the High Court dealt with the constitutional challenge to sedition provisions is disappointing and hampers the enjoyment of freedom of expression.
CONFLICTS OF INTEREST
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