After three years of being entangled in a legal battle with the former president of the country Ian Khama over an article titled, “President hit in car accident while driving alone at night,” the Editor of the Sunday Standard, Outsa Mokone gave a sigh of relief when the case of sedition against him was dismissed by the Broadhurst Magistrate on Monday morning. Mokone was represented by his and the Sunday Standard’s long time lawyers Bayford and Associates.
Mokone had challenged the constitutionality of the law of sedition through the judicial hierarchy all the way to the Court of Appeal. Early this year Court of Appeal declined to determine on the legal validity of sedition and found that Mokone had been unlawfully detained. Despite the Court of Appeal stating that it would be unlikely that Mokone would ever face criminal charges for sedition as the State was barred from bringing the case after 6 months from the date of publication, the Director of Public Prosecutions had nevertheless, during Khama’s tenure of Office, elected to proceed against Mokone and the Sunday Standard.
In response to the DPP seeking to resume the case, Mokone had raised a legal point that the court could not entertain the allegations against him, as the DPP was prohibited by the passage of time. On Monday the case scheduled for argument. At Court, the State prosecutor W.G. Manchwe, confirmed that their position was untenable and that the Applicant was right on the interpretation of the law, “As a result, DPP withdraws its opposition to the Application and agrees with my learned colleague for the Applicants, Mr Salbany.”
In an interview with the Botswana Gazette, Mokone said he is very happy that the matter had finally come to an end. He, however, expressed his disappointed at the fact that such laws will not be challenged as the case is now concluded.
“Of course, I am very happy that this is finally over, I was hoping that the constitutionality of a sedition charge would be challenged in court. But now that the case has been dismissed we will not get the opportunity to question and challenge this law. Nonetheless I must admit that I am happy it’s over,” said Mokone.
The article behind the charge concerned a motor vehicle accident involving Khama’s private car in the middle of the night. The accident is alleged to have happened while Khama was driving alone on August 23rd 2014.
The case against Mokone and his publication attracted international condemnation as it was viewed as an abuse of executive authority by the former president; human rights and media freedom organisations characterised the executive pushback on the media as undemocratic and unlawful.
Speaking on behalf of Alliance for Progressives opposition party, Secretary General Phenyo Butale said as the AP they are very happy that the case has been dismissed, “The reason why we are so happy is because in our view those sedition charges are draconian laws that offend against media freedom. Such draconian advances have absolutely no place in a democracy. Even younger democracies have repelled this law.”
Butale said Batswana should view this case as a lesson and that it should motivate them to stand up against other media laws that are similar to sedition and curb and supress freedom of expression. He cited the Media’s Practitioners Act that seeks to accredit anyone who publishes in a newspaper as a journalist, as unheard of in a democracy. “As the AP we call for a change in media laws in this country. We need to reform state media, they need to be accountable to the public and not just to certain people within the state,” he said.
Despite the victory for the media pundit, Botswana has a long way to go to attain media freedom. Botswana National Front (BNF) secretary-General Moeti Mohwasa said contrary to what many people think, oppression against the media did not start with Ian Khama and his reign. He said the media was harassed since independence in 1966.
“Yes, as the BNF we are happy that the case has been favourably concluded for Mokone, but I strongly believe that this oppression against private media will continue even with the new president. Sedition charges are not an Ian Khama thing, they are a BDP thing. It is so sad that one person, Edgar Tsimane, had to flee the country for his safety because of such laws,” he said.
Mohwasa said, this oppression against private media started when Sir Seretse Khama, Sir Ketumile Masire and Festus Mogae released the cruelty of the Immigration Act on journalists which was responsible for the deportation of many journalists over the years as well as other professions, such as the academia and members of the legal fraternity under the guise of being national security threats.
“Foreign journalists and professors were deported while local journalist, ‘Prof’ Malema was arrested and detained twice during his career. So, I honestly don’t see the withdrawal of this particular case being the liberation of media freedom in Botswana. Such oppression will continue,” he said.
Media Institute of Southern Africa Botswana (MISA) board member, Tshireletso Motlogelwa said they as MISA welcome the decision made by the judicial system and it is a sign of a new dawn. He said as MISA they believe that journalists days of being oppressed by the executive body in the country is over.
“We are very excited about the new development, this shows that the current judiciary is now independent to make their own decision without fear or influence from the executive. As for the technicality of the case, it is not worth mentioning because the case never stood a chance as the time frame for Outsa to be held accountable had elapsed. What is exciting is the fact that we are in a new and better governance. This is a change for the better. We (the media) are slowly being liberated,” he said.
Asked for comment by The Botswana Gazette, Sunday Standard’s and Mokone’s attorney Joao Salbany expressed his delight for his client. It was Salbany’s first case in court since his prohibited status was lifted and his return to Botswana. “This case is of particular significance to me” Salbany revealed, “Bayford and I have been involved in this matter since Outsa was first arrested, sadly I was not able to be part of the legal team for the hearings of the constitutional challenge but at least I was there for it at the end.” As with Mokone, Salbany expressed a “nagging disappointment” that the law in respect of sedition would not now be challenged, “but ultimately the right decision has been made for Outsa and that cannot be underestimated.” Asked how it felt to be back in court after 2 and a half years away, Salbany laughed and said “it felt as if I had never left.”