The Southern Africa Litigation Centre (SALC) supports Tshepo Junionr Sethibe through Obonye Attorneys, represented by Dr Jonas Obonye, who are challenging Section 59(1) of the Botswana Penal Code. 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 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.
Application for Unconstitutionality
Sethibe has filed an application in the High Court of Botswana for an order declaring that Section 59(1) is unconstitutional. The Applicants argue that the law
- Is too vague and under-specified to allow the Applicant to conduct his defence properly
- It is vague and nebulous as it imposes criminal liability on almost any expression likely to cause fear and alarm, which allows for arbitrary application.
- It is used to silence members of the public who are critical of the government
- It offends against the right to freedom of expression locally, regionally and internationally
- Other African countries have started calling these provisions unconstitutional.
The limitation of the right to freedom of expression must not undermine or jeopardise the essence of the right itself. In Article 5(1) of the ICCPR, it has been stated that
Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant.
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.
On 13 July 2022, Tshepo Junior Sethibe was arrested and charged under Section 59(1) of the Penal Code for publishing “alarming statements” after he posted several comments on his Facebook page, criticising the police in Lobatse. According to the Commitee to Protect Journalists, at the time of his arrest, two laptops, a desktop and three mobile phones with all their passwords were confiscated by the police.
The post that gained the attention of the authorities and led to his arrest stated:
“Because the police say that remains of the child that were found on 06 July 2022 are to be brought together with the remains found on 14 April 2022 after two weeks they are going to be burnt or cremated, [this means] there will be no Tlotlo’s funeral because there was deceitfulness.”
The Facebook comments came after a spate of ritual killings and the disappearance of persons, particularly after the disappearance of six-year-old Tlotlo Karema from Lobatse on 18 March 2022.
Sethibe appeared in the village magistrates Court in Gaborone on 14 July and was released on US$ 156 bail. Sethibe could face up to two years imprisonment or an unstipulated fine if convicted of ‘publishing alarming information’, according to Section 33 of the Botswana Penal Code.
The hearing at the Botswana High Court in Maun on the challenge of the Penal Code is on 19 May 2023. Sethibe is represented by Dr Jonas Obonye of Obonye Attorneys and is supported by the Southern Africa Litigation Centre.
Case Fact Sheet
Case in the news
3 May 2023 – False news or free speech: Protecting freedom of expression in Botswana.