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Published in The African and IOL
3 May 2023
Melusi Simelane, Civic Rights Cluster Manager, Southern Africa Litigation Centre

Publishing false news or alarming/misleading information, defined differently in different jurisdictions, has a long and infamous history. From ancient Rome to the present day, publishing stories that are not true or meant to mislead has always been used for profiteering, influencing people’s views and opinions, and encouraging people to question authority or who can be trusted.

Equally, States have historically used the law to restrict the right to freedom of expression and curtail media freedoms by penalising the publishing of alarming information or false news. The offence dates back to the time of colonialism when States would use it to protect themselves from scrutiny or dissent. It is arguable whether such an offence can have a place in modern post-colonial societies.

Since the definition of what is considered false news is subjective, the offence is often inconsistent with international human rights law, including the Declaration of Principles of Freedom of Expression, adopted by the African Commission on Human and Peoples’ Rights (ACHPR) in 2019. These Principles create the framework under which States must work collectively to safeguard the right to freedom of expression and media freedoms.

With the ever-increasing invention and reach of the internet and social media in its sophistry, citizens everywhere are formulating, expressing, sharing, and adapting various opinions, ideas, and information daily. Though expected to work under specifically defined ethics, journalists form part of those sharing thoughts and views every day. In protecting journalists and advancing their right to freedom of expression, States are expected to not impede these rights through ‘false news’ offences which often place an unwarranted burden on individuals exercising the right to freedom of expression. They are also prone to abuse by State authorities who, like colonial-era authorities, may dislike scrutiny and dissent.

The Penal Code of Botswana criminalises publishing alarming information in section 59(1). This provision is vague and fails to provide an individual with an opportunity to defend themselves should they be found to have contravened it. Under this section, only the authorities can determine what is ‘alarming information’, leaving little room for those accused to have violated it to disprove it as alarming. The section permits authorities to apply it arbitrarily, thus infringing on citizens’ and journalists’ rights, liberties and freedoms.

When the government of Botswana, on 13 July 2022, arrested and charged Tshepo Junior Sethibe under section 59(1) of the Penal Code for publishing ‘alarming statements’, it had a chilling effect on citizens’ ability to express themselves freely.

Section 12 of the Constitution of Botswana guarantees the right to freedom of expression. Freedom of expression is both intrinsically valuable and instrumentally useful. It is helpful because it protects democracy by informing citizens, promoting debate and exposing abuses that may take place. A constitutional challenge by Sethibe argues that section 59(1) of the Penal Code is unconstitutional. It distressingly affects exercising the right to freedom of expression and limits media freedoms.

The Southern Africa Litigation Centre (SALC) supports the case of Tshepo Junior Sethibe, which is due to be heard on 19 May 2023 at the High Court of Botswana in Maun. SALC supports the case because it recognises that offences such as false news place a disproportionate responsibility on ordinary citizens when expressing their views on social media and other online platforms. The East African Court of Justice and the ECOWAS Court of Justice have declared that the offence of false news and the imposition of criminal penalties on expression disproportionately impacts freedom of expression.

In short, since the right to freedom of expression lies at the very core of a democratic society, while the right is not absolute, it is strongly protected, particularly in the political arena. The right of citizens to criticise those in authority lies at the heart of a democratic society. This right is a cornerstone of democracy. It is essential in the political sphere, and freedom of political debate is at the very core of the concept of a post-colonial democratic society.