Botswana journalist fights government against unconstitutional publishing laws

The Southern Africa Litigation Centre (SALC) has thrown its weight behind a Botswana journalist who was charged and arrested for contravening the country’s publication laws.

Moeladilotlhoko News Boiler director Tshepo Sethibe was apprehended in July last year at his home in Mogoditshane, north-west of Gaborone.

The charges fell under Section 59(1) of the Penal Code in which Sethibe is accused of publishing “alarming statements” after he posted several comments on his Facebook page, criticising the police in Lobatse in the case of six-year-old Tlotlo Karema who disappeared from Lobatse on 18 March 2022 amid ritual killings that transpired in the region.

At the time of the arrest, the police seized his work devices which included two laptops, three cellphones and a desktop computer.

Sethibe appeared at the village magistrate’s court in Gaborone on July 14, 2022 and was released on $156 bail.

His hearing is now expected to be heard in the Botswana High Court in Maun on May 19.

In a statement released on Wednesday, SALC said it would be challenging the Section 59(1) of the Botswana Penal Code instituted against Sethibe whose legal representative is Dr Jonas Obonye of Obonye Attorneys.

“The provision in the penal code is phrased in vague and broad terms to the effect of curtailing freedom of expression.

“It further places an undue burden on the individual who seeks to exercise their right to expression and can easily be prone to abuse by those in positions of power who disapprove of the content being expressed,” the centre said.

In his application to the high court, Sethibe argues, among other things that Section 59 (1) is used to silence members of the public who are critical of the government and limits the right to freedom of expression locally, regionally and internationally.

The SALC meanwhile added that: “The history of ‘false news’ provisions is initially from a colonial period and was used to fight dissent by those colonisers oppressed.

“Many African countries with these provisions in the law have since taken steps to remove them and allow for freedom of expression.

“The right to freedom of expression is protected by Section 12(1) of the Botswana Constitution.

“It is also recognised regionally and internationally under Articles 9 of the African Charter and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

“Botswana must abide by constitutional supremacy in that constitutional rights and freedoms are protected in chapter II.

“The Court of Appeal of Botswana has declared that the Constitution is supreme and that laws may not be enacted that contravene or derogate from said Constitutional Provisions unless sanctioned by the Constitution itself.”

It also maintained that “journalists’ role in promoting and facilitating the right to freedom of expression is vital”.

“For an effective promotion and exercise of freedom of expression, journalists should be free to perform their duties without fear of reprisals, intimidation or harassment.

“Journalists must be protected and permitted to carry out their responsibilities in a legally safe environment.”

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