After a year of postponements and delays, the High Court of Botswana has set 15 May 2024 as the date to hear the constitutional challenge of Section 59(1) of the Botswana Penal Code. The provision is phrased in vague and broad terms and curtails 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.
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 Committee 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 read:
"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 has filed an application in the High Court of Botswana for an order declaring that Section 59(1) is unconstitutional. The Applicant argues that the law.
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- 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 Southern Africa Litigation Centre (SALC) supports Sethibe for the application. SALC argues that the origins of 'false news' provisions date back to the colonial period and were used to suppress dissent by the colonisers. Many African countries with such provisions have taken measures to repeal them and ensure freedom of expression.
The Botswana Constitution protects the right of freedom of expression under Section 12(1). This right is also recognised regionally and internationally under Article 9 of the African Charter and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). It is important to note that Botswana must adhere to constitutional supremacy, meaning 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 cannot be enacted if they contradict or derogate from Constitutional Provisions unless authorised by the Constitution itself.
More on the case, including a fact sheet, can be found here.
