Regional watchdogs tame draconian Botswana bill
When Botswana’s draft Criminal Amendment and Evidence Bill landed on our desks a few weeks ago, it was alarming. This long-standing, stable democracy was proposing to allow for search, seizure and surveillance of citizens without a warrant.
In other words, the government was threatening to remove the most basic safeguards of the safety and privacy of citizens, putting them at the mercy of a security and intelligence system that many believe is already too powerful.
Journalists were particularly concerned, as this would allow the authorities to watch or listen to their every move and utterance, seize their notes and material and endanger their sources – in other words, make their work near impossible. African Editors Forum chair Jovial Rantao might have been exaggerating when he said it was the “worst piece of legislation to have emerged … on the continent in recent history”, as there is some competition for pole position in that race, but he was spot on when he said it was “draconian” and would have “a chilling impact on the media and other liberties”.
Even more concerning was that there was an attempt to rush the proposed law through parliament quickly and quietly. It was hidden among some 12 bills published in January and the Gaborone Parliament approved a certificate of urgency which allowed them to skip the usual debate, scrutiny and consultation before it gets into the statute books. The country’s annual budget speech was postponed to get the Bill through within a week.
The government’s argument was that the Bill was required to comply with the intergovernmental Financial Action Task Force (FATF) which had earlier blacklisted Botswana for its lack of safeguards against money laundering and terrorist financing. This was a transparent ruse, as many governments are FAFT-compliant without such drastic measures. And FATF had already removed Botswana from its blacklist.
More likely was that President Mokgweetsi Masisi, under the influence of the country’s ubiquitous intelligence forces, was looking to shore up his precarious position before the next elections. Recent media freedom assessments in Botswana have highlighted the role of the country’s intelligence officers in the country’s politics and in the harassment of journalists in their work, and this had their fingerprints all over it.
Botswana, which has a mix of state-owned and private outlets, is ranked 38 in the Reporters Sans Frontiers global media freedom ranking, behind only South Africa (32) and Namibia (24) in the region. This move would have taken it far down the rankings.
Wearing my Campaign for Freedom of Expression (CFE) hat, and working with the Southern African Editors Forum and the Media Institute of SA, we quickly put together a regional delegation to go to Botswana, consult with local journalists and civil society, and work out how to stop the Bill. We were hosted in Gaborone by the Botswana Editors Forum and the Press Council of Botswana.
Others, locally and internationally, also decried the Bill and the general outcry jolted the Botswana government. It helped that elements of Masisi’s cabinet seemed themselves to be surprised by and worried about the Bill. When we wrote to the Minister of Defence, Justice and Security (yes, all that power rolled up in one person) to ask to discuss the implications of the Bill, he replied quickly to say that he would be publishing amendments to the draft.
These amendments improved the Bill substantially, removing the power to conduct search, seizure and surveillance without a warrant and threatened penalties of up to life imprisonment for those who abuse the powers of undercover investigation. It also introduced a committee to oversee undercover work, headed by a judge and with the powers of the courts. This committee has the express purpose of protecting victims of undercover surveillance.
The amended Bill – now passed by Parliament and awaiting presidential signature – is still far from perfect. The oversight committee, for example, is made up of technocrats and has insufficient independent representation. But now there is a set of rules governing undercover work, which did not exist before, and the penalty for breaching these rules is unexpectedly harsh.
It was a refreshing example of a government responding quickly and quietly to pressure, a far cry from what started out as looking like a sharp blow to citizens’ rights. It was a reminder of how vigilant we have to be in defending media freedom, even in our stronger democracies.
It is not the first time that the Botswana government has tried to reign in the media, and it won’t be the last. Also on the table is a Media Practitioners Bill which seeks to create a statutory press council and a register of journalists.
It was also a powerful illustration of the value of regional solidarity among Southern African civil society neighbours.
*Harber is executive director of Campaign for Free Expression and Caxton Professor of Journalism at Wits.