Botswana Media Practitioner Act is a threat to freedom of the media

28 Sep 2022

Botswana has quietly passed into law the creation of a statutory Media Board which will regulate journalists’ conduct and introduce a register of journalists and media enterprises — a controversial move which will have implications for media independence and freedom in that country.

The Media Practitioners’ Association (MPA) Bill of 2022 was passed by the Botswana parliament a few weeks ago but has not yet been signed by the president. It purports to “ensure the maintenance of high professional standards” in journalism and “promote and protect the freedom and independence of the media”.

Its focus, though, is on policing journalism ethics and conduct and exercising the power to register or deregister journalists and media entities. The Media Board (see below) is also charged with ensuring national security, public order and public health — all vague and broad issues which are commonly used to suppress critical media.

Grey areas

The Bill has been drafted with a number of grey areas and gaps, which may allow it to be used or abused by the authorities.

Registration or licensing of journalists is used by a number of authoritarian countries — like China and North Korea — to control media and suppress criticism. It is also used in some more open, democratic countries as a way of professionalising. The problem arises where governments control the licensing, as they can use it to block their critics.

Although the Botswana law does not involve the government in the register, it creates a mechanism that the government can manipulate against its critics — either by taking control of the register or by exerting pressure on those who do.

It also draws an artificial and arbitrary distinction between registered journalists and citizens who write, blog or use social media to report and comment on the news.

To join the Botswana Media Practitioners Association (MPA) one will need to be a publisher or a member of one of four professional bodies: the Botswana Editor’s Forum, the Botswana Chapter of the Media Institute of Southern Africa, the Botswana Media Council or the Botswana Media and Allied Workers Union. This will make these bodies — some of whom are barely functional — the gatekeepers of journalism.

Oddly, the Bill prescribes who may apply to join these “independent” bodies. These may be employees of media enterprises if that enterprise ensures they have “the required academic knowledge of, and practical experience in, journalism”. One must also take an oath to uphold a code of ethics and be a “fit and proper person”.

It does not spell out what happens if one is not registered as a journalist, or whether a publication is restricted from using the work of unregistered journalists. The many citizens who write articles, opinion pieces or letters in the media will be in limbo, with uncertain status. Presumably, the government, private sector and others may refuse to deal with those who do not have the official stamp, making it extremely difficult to operate outside of the system.

In Botswana, MPA members will elect a Media Board, which will oversee the work of journalists. It will appoint an Ethics and Conduct Committee, which will draw up a code of ethics and ensure adherence to it.

Anyone aggrieved by the conduct of a journalist or “anything done against a journalist” may lay a complaint. The Complaints Committee may order an apology and correction and even recommend the suspension or deregistration of the journalist or media enterprise. It does not have to be a serious or repeated offence, just any contravention.

Punitive measures

The Bill does say the MPA must operate “without any political interference, bias or influence and shall be wholly independent and separate from government, any political party or any other body”.

It also offers some protection to journalists, in that one can lay a complaint against anyone who “limits or interferes with the constitutional freedom of expression” of a journalist or media enterprise. It can also order the “return, repair or replacement of any equipment belonging to a journalist or media enterprise which has been confiscated, damaged or destroyed”. But its punitive measures are only aimed at journalists.

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The Bill reinforces Botswana criminal defamation laws by insisting these must be incorporated into the new code of ethics. Criminal defamation has been strongly criticised and rejected by most open democracies.

The Bill also enforces a statutory right of reply, in a way that takes little account of the exigencies of journalism. If a publication so much as mentions a person, that person can insist on a right of reply which has to be published within the next two editions of the publication with the same prominence as the original statement.

The Bill prohibits anonymity by journalists by saying that all articles had to give the full names of the responsible journalist. This will mean a journalist will be unable to protect themselves by remaining anonymous in situations where they are being threatened because of their reporting.

The Bill creates a Media Fund in the MPA, though it gives no indication of the purpose of this fund. If it is intended to support independent media this would be a positive move, but there would need to be clarity on how this would work.

It lays out what the code of ethics must deal with, and includes some unconventional elements such as “fair competition in the media industry” and “continuous professional development of journalists”. It is not clear how a code would deal with such issues, or the competence of the Board to rule on such matters.

Some of the other areas where the Bill appears to be deliberately vague and vulnerable to abuse:

It does not make clear how a journalist accused of misbehaviour and whose career might be on the line can defend themselves, or be represented in a hearing.

It allows for an appeal to an Appeal Committee, but gives few details on when and how this may happen.

It allows for membership and service fees, but leaves the amounts wide open, which means that high fees could be used as a blockage for journalists.

Slipped in at the end of the Bill is a clause that allows the Minister in the Presidency to make regulations “relating to any other matter intended to safeguard the interest of the public and promote professional standards in the media”. This gives wide scope for interference.

Mixed responses

The Bill replaces an earlier one promulgated in 2008. That one gave the government a strong say in appointments to the Media Association and Board and was strongly rejected by journalists. They convinced the Law Society not to nominate a chair to the board, rendering it inoperative. The new version, which removes direct government involvement in appointments, has been the subject of lengthy consultations with editors.

The Bill has drawn mixed responses. Some editors have said that it will help curb the behaviour of rogue elements who called themselves journalists but do not follow ethical or professional rules.

Introducing the Bill, Minister Kabo Morwaeng said it brought “a lot of improvements geared towards promoting and protecting the freedom and independence of the media” and the accountability of journalists.

The Media Institute of Southern Africa, in an analysis of the draft (read it here), said it contained “progressive elements” but there were gaps to be addressed.

Writing in the Botswana Guardian, Thapelo Ndlovu said the Bill “proves government is not about to retreat from its desire to control access to the media industry”. He said there were a few positives in it, but these “recede into obscurity” when one saw the “red flags” in it.

The chair of the Botswana Editors Forum, Spencer Mogapi, was quoted saying the new Bill went a long way to addressing the concerns raised by the earlier version and in mitigating one of the biggest problems for Botswana journalism: the threat of litigation. But he said the government should be looking at its long-promised Freedom of Information Act.

Publisher and editor Sello Motseta described it as “a grave threat to a free press”. He said that it was impossible to set a defined criteria for registering journalists as many people wrote columns in newspapers.

“Journalism is a very inclusive discipline,” he said, “and any efforts to restrict its practice … is suicidal.” He warned that it could be used arbitrarily to target independent journalists “who do not write glowingly about the government”. DM/MC

Harber is director of the Campaign for Free Expression and Caxton Professor of Journalism at Wits University.

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South Africa

Grey areas

Punitive measures

Mixed responses