In September 2014, a warrant of arrest was issued for Botswana journalist, Outsa Makone, charging him with sedition after the publication of an article in the Sunday Standard on 31 August 2014, entitled “President hit in car while driving alone at night”. A subsequent application by Mr Makone’s attorney, Mr Dick Bayford, sought to challenge, the lawfulness of the arrest warrant, the fact that Mr Makone was denied access to his lawyers immediately after his arrest, and the constitutionality of the offence of sedition.
Sections 50 and 51 of the Penal Code state as follows:
“50. Seditious intention
(1) A seditious intention is an intention
(a) to bring into hatred or contempt or to excite disaffection against the person of the President or the Government of Botswana as established by law;
(b) to excite the inhabitants of Botswana to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Botswana as established by law;
(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Botswana;
(d) to raise discontent or disaffection amongst the inhabitants of Botswana; or
(e) to promote feelings of ill-will and hostility between different classes of the population of Botswana,
but an act, speech or publication is not seditious by reason only that it intends:
(i) To show the President has been misled or mistaken in any of his measures;
(ii) To point out errors or defects in the Government or the Constitution of Botswana as established by law or in legislation or in the administration of justice with a view to the remedying of such errors or defects;
(iii) To persuade the inhabitants of Botswana to attempt to procure by lawful means the alteration of any matter in Botswana as established by law; or
(iv) To point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Botswana.”
“51. Seditious offences
(1) Any person who-
(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention;
(b) utters any words with a seditious intention;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;
(d) imports any seditious publication, unless he has no reason to believe that it is seditious, is guilty of an offence and is liable to imprisonment for a term not exceeding three years; and any seditious publication shall be forfeited to the State.
(2) Any person who without lawful excuse has in his possession any seditious publication is guilty of an offence and is liable to imprisonment for a term not exceeding three years; and such publication shall be forfeited to the State […]”
Mr Makone made submissions that there is no rational connection between many of the types of conduct criminalised by sections 50 and 51 of the Penal Code, and “the interests of defence, public safety, public order, public morality or public health”; there is a less intrusive way to deal with the conduct that has the potential to threaten such interests, and that is to limit the applicability of the provisions to circumstances in which there is actual or threatened violence; and given the existence of less restrictive measures, as well as the severe consequences that flow from any conviction under the provisions, the objective and effects of the limitation are disproportional.
The High Court handed down its judgment on 26 August 2016, holding that the arrest warrant was unlawful and that the offence of sedition was not inconsistent with the Constitution of Botswana. The High Court found that the Applicant was denied his right to legal representation during his detention.
The Court of Appeal in its judgment on 4 February 2018, came to a different conclusion than that reached by the High Court. The Court of Appeal clarified that where there is an alleged unlawful arrest, the applicant’s task is merely to challenge the lawfulness of the respondent’s action, in which event the onus is on the respondent to adduce evidence to establish such lawfulness. The Court of Appeal held that the State did not discharge its onus and accordingly set aside the warrant of arrest. The charges against Mr Mokone was eventually dropped by the state in September 2018.
Unfortunately the Court of Appeal did not entertain the issue whether the sedition offence is inconsistent with the Constitution: “Since I have already declared the warrant invalid, this is an a fortiori case for resisting the temptation to embark upon a constitutional investigation which would make no difference to the eventual determination of the issues raised in any conceivable way.” The Court upheld the principle that where it is possible to decide any case without reaching a constitutional issue, “that is the course that should be followed”.
The Court of Appeal further did not confirm the High Court’s finding that the accused could not timeously access his legal representatives. The Court of Appeal made obiter statements about the defamatory nature of the applicant’s article, although the veracity of the applicant’s article had not yet been tested in court by the time the Court made these statements.
SALC provided technical support to Bayford Attorneys during the appeal.