Court of Appeal gags teachers’ ‘free speech”

Court silences teachers and students in political discussions

The Court of Appeal on the 19th April gagged teachers and by extension civil servants from commenting in the media on “any matter” that may be “reasonably regarded as advocating for or against a political party”. The Court of Appeal Judgement effectively politically silenced a substantial portion of the electorate, with government workers constituting an estimated 40 percent of the total formal workforce.
Goitsemodimo Dintwe’s name will go down in the history books for all the reasons he would not have imagined when he penned his open letter (the Article) in the Mmegi Newspaper following the Civil Service Strike in 2011. As a result of the publication of his article, he faced disciplinary action under Section 34 of the Public Service Act and was subsequently dismissed. Last week the Court of Appeal confirmed his dismissal as being lawful and further ruled that the provisions of the Public Service Act which prohibits commentary by teachers on political affairs in the media, to be constitutional.
In a unanimous decision by Howie JA, Abernathy JA, Brand JA, Leburu Acting JA and Gaongalelwe JA delivering the Judgement, the Court of Appeal determined two key considerations that were before it in respect of freedom of expression. The first was whether the article Dintwe published fell within the scope of the Public Service Act and secondly whether the provision of the Pubic Service Act which prohibited such publication, was constitutional.
Dintwe, a government employee was a teacher at Radisele Community Junior Secondary School at the time he wrote an open letter in the media. He prefaced his letter by indicating that he could not believe what his fellow citizens, who had a “Hawk’s eye for political issues” were saying in likening his “beloved” President (Khama) to a “Siamese twin to Zimbabwean President Robert Mugabe”. The article then went on to state that according to the “proponents of such ideology that Khama is a poor administrator” various examples were given by them to justify their position. He proceeded to set out the positions of his “fellow citizens” and highlighted by way of their examples; the impact of the Kanye congress on the Botswana Democratic Party and the resultant split leading to the formation of the BMD under the late Gomolemo Motswaledi; the handling by government on calls by Teacher’s Unions to have their concerns dealt with and government’s refusal to deal with them which gave rise to the national strike; the economic impact of governments policies, which Dintwe set out again based on issues raised by “fellow citizens” such as the introduction of the Alcohol levy that had not escape Khama’s attention but noted that “they”, his fellow citizens, were critical that the levy was announced at a Kgotla meeting. He concluded his open letter, by stating that “There were so many examples dished to me for analysis. As patriotic as I am, I caution my colleagues that it is not easy to manage such a big component called a country. You have a lot at hand to deal with.” It is Dintwe’s final sentence however that should have sparked the Court’s interest and been discussed in the judgment; it wasn’t even alluded to other than in quoting the letter in its entirety, “In conclusion, I was made aware that I was being enlightened and I must read on the twists of events in the country to forecast what events will happen in the near future.”
Section 34 of the Public Service Act, prohibits all government employees, without the consent of the Permanent Secretary from publishing articles which may “reasonably be regarded as advocating for or against a political party”, in newspapers in their own name, and further prohibits employees from being involved in the editorial of publications.  The provision of the Public Service Act in addition says that an employee may “publish in his or her own name other matter relating to subject of general interest”.
The Court in dealing with the 2 issues before it, first dealt with whether Dintwe’s open letter fell within the scope of Section 34. It did so before considering the right to freedom of expression, an unfortunate circumstance given the importance of the issues before it and the assumptions the Court made. In determining issues of constitutional rights, courts traditionally take a two pronged approach. The first leg requires the court to consider whether a particular right has been infringed; the second leg of the approach seeks to determine whether such an infringement can be justified under, in the case of our constitution, a “democratic” dispensation.
The judgement did not take on the traditional approach for the determination of rights, instead it confined itself to narrow questions of fact. The court, for example, found that it did not matter whether the article actually favoured a political party or not, as it found that it was merely sufficient that the article could reasonably be understood to do so. There was no analysis of the article against the values of the constitution and consequently the court held that Dintwe’s article violated Sec 34 of the Act.
In failing to consider Dintwe’s closing remark in his article, it is clear that no consideration was given to what constitutes a matter of “general interest”. By ignoring the comment the Court was clearly of the view that the final sentence did not warrant consideration because as a whole, the article was perceived as capable of “reasonably” being construed as conveying political content. However had the court made a determination of what may constitute a “matter of general interest” the court would have shown it was alive to the inherent contradictions of Section 34, let alone its possible constitutional violations. It is difficult to grasp of a scenario in which a person can comment on events which the court found to have been prevailing at the time of writing, such as the national strike, a matter of “general interest”, without drawing political conclusions or in the language used in the Act making comments that would not be “reasonably” understood to advocate for one party or another. It is difficult to grasp of any events of general interest, in the sphere of economics, literature, current affairs and history without them being “reasonably regarded as advocating one party or the other”.
It was critical therefore, for there to be a definitive ruling on what was meant by the provision of the Public Service Act and what a government employee may state of their views in the media in respect of any other “matter of general interest,” and whether such matter, if it discussed conditions of employment and the national economy, which may take on political connotations, would render an civil servant falling foul of the framework of the prohibitions.
The Court in its failing to take the traditional two stage approach in determining constitutional rights, highlighted by its failing to undertake an analysis of the extent and limitations to freedom of expression, generally, and in particular as regards to Section 12 of the Constitution and Section 34 of the Public Service Act, gave the section the widest interpretation that it could have.  Even though, in so doing it went against its own reasoning, and against established rules of constitutional interpretation that hold that limitations of constitutional rights and legislative provisions that limit a constitutional right such as freedom of expression must be narrowly applied in order to give the constitutional right its greatest effect. The Court merely held that since the article had aspects that were critical of Khama and the ruling party, it fell under Section 34.
The 2nd consideration that required the Court’s consideration was whether, having found that the article fell under the disciplinary provisions of the now widely construed Section 34 of the Public Service Act, the Act violated against the constitutional right to freedom of expression.
The Court took the approach that the constitutional right to freedom of expression is not absolute, and that freedom of expression is curtailed by the limitations contained in the constitution, citing with approval a 1996 Court of Appeal decision, in which the Court had upheld a rule in the contractual conditions of employment, by the Botswana Power Corporation, which imposed limitations on their employees in participating in active politics, as being constitutional. The Court in that case had held that the rule that introduced the limitations was acceptable because it had been contractually entered into with the consent of the employee, and also because the terms of the contract did not limit the employee’s right to express political views. The conditions of employment, the Court had noted in accepting the lower court’s decision, merely prohibited an employee from participating in active party politics. Importantly the Court held that even though the employees had consented to the conditions, “All that which I have said before is based on the overriding condition that the rule determined by the respondent for its employees does not contravene the provisions of the Constitution with respect to the fundamental rights and liberties of the individuals. If there is any such contravention, then the rule must be null and void”.
In Dintwe’s case the Court, under the presumption of constitutional validity of legislation, held that it is presumed that parliament will only pass laws that are constitutionally valid. In so doing however the Court simply assumed the “constitutional validity” of Section 34 of the Public Service Act without, once again, doing an analysis of freedom of expression and what it entails in respect of the teacher and the student relationship.  Under the presumption of validity, a Court is required to assume that facts exist necessary to satisfy the rules of constitutional interpretation. The presumption involves a deference to facts that establish the validity the law in question. The presumption of validity must be given where there is possible conflicting interpretations to a piece of legislation, as to whether it is constitutional or not. The very use of the term “presumption of validity” in the judgment, requires an analysis into the constitutional right and the law limiting a constitutional right, and then giving it an interpretation that renders it constitutionally valid. Such interpretation must be given to avoid future doubt as to what the legislation meant to restrict, and, in so doing the court cannot give an interpretation to the limitation that is so broad that it renders the right meaningless.
The Court of Appeal in Dintwe’s matter did not consider the extent of the constitutional right to freedom of expression nor what it entails and on whom the limitation will impact. The Court opted instead to rely purely on the grounds that, since the Constitution provides for a limitation to the right, the right may be limited in instances that “imposes restrictions upon public officers, employees of local government bodies, or teachers.” There was no engagement by the court as to under what circumstances such a limitation could be introduced. Neither was there an engagement on the possible questions of invalidity or validity of the legislation as against the rights of the Child by imposing a limitation on the teacher’s freedom of expression.
The Court made two startling conclusions, one, that “Section 34 (a) must have been enacted as a derogation authorised by Section 12 (2) (c) of the very Constitution,” and two, “furthermore that the limitation authorised by the subsection is a reasonable one in a democratic society in that teachers by virtue of their profession and duties have to be apolitical.” These findings call for much greater analysis than that which was (not) provided by the Court.
In respect of the first finding, as was held in the case the Court referred to from 1996, the limitation must itself be constitutional, as legislative provisions that limit rights are not constitutional merely because the constitution allows for a limitation. It was counterintuitive to hold that Section 34 were constitutional merely because the Constitution itself allows for limitations, without engaging in an evaluation of whether Section 34 went beyond the scope of the constitutional limitations.
In respect of the second finding, the Court held that the limitation is a reasonable one in a democratic society. The Court once again did not analyse what freedom of expression entailed in a democratic society. Crucially however, the court failed to consider that any limitation on freedom of expression must be tested against the requirements of a democratic society and not that such limitations are given validity merely by reference to a “democratic society” in the constitution, as the Court held. Ironically, the court found that the reference in the constitution to “democratic society” gave effect to the limitation of the right to freedom of expression as opposed to finding, as the constitution actually stipulates, that the reference to a “democratic” dispensation is actually a guide to limiting the limitation of the right to freedom of expression.
The Court’s finding that government teachers, by the very nature of their profession are required (in a democratic society) to be “…apolitical. This must be so to avoid a situation where a person in that position would sway the minds of children one way or the other in the sphere of party politics,” gives rise to questions as to our democratic values.
This statement is difficult to comprehend from either a legal or logical premise. Did the Court mean teachers cannot discuss politics (being “apolitical”) at all in the classroom, in a democratic society? Or, did the Court merely mean that because of the influence teachers have on children they cannot extend their personal opinions from the realm of teaching in the classroom to the media? However the Court’s statement was intended, the manner in which it is used in the Judgement, one must assume it to mean that teachers hold “sway” in the classroom, (which therefore, according to the judgement) and as a result, must not be allowed to express themselves in a manner that may be perceived to advocate for or against a political party at all.
This position loses sight of the reality on the ground, teachers hold “sway” in developing the minds of children politically as much as parents, television, social media and media generally but it is the teacher’s function to do so.  When teachers engage in lessons on literature (classical or contemporary), history, and social-science, political-science or current affairs there can be no doubt that they will engage in discussions, provide teaching material, let alone newspaper articles that are going to be “reasonably regarded as advocating one party or the other.” The courts statement is, simply put, overbroad in its overarching implication that a teacher can make no comments that are to be construed as being “reasonably understood” to advocate for one party or another, either within or outside the classroom.
It must surely be both legitimate and legal for a teacher to express an opinion in the classroom on a political issue, political party or candidate as part of classroom dialogue to teach students responsible political participation for when they attain the right to vote. This is particularly so, to encourage discussion by way of respectful commentary, and to illustrate the need to use evidence and reason to support a point of view. A teacher in the classroom can and must legitimately engage in such activity. A teacher is required by international law to do so for the benefit of the child.
However, assuming, as one must, from the Judgement (though it did not expressly say so) that the limitations to a teacher’s (or civil servant’s) right to freedom of expression under the constitution would then be justified by the benefit to the Child, does the Court mean that children must not be exposed to political discussion and teachings in the classroom?
The Court’s reasoning that Section 34 is constitutionally valid because it limits the rights of teachers due to the “sway” they have over children is fraught with difficulty. It assumes that school children on reading a newspaper would be inclined to accept the positions stated in it without question because it is authored by someone they look up to, without question. This undermines the very understanding of teaching children; which is to foster curious minds, as well as the key players in the process. It also undermines the ability of the student to engage with a professional, the teacher, to help understand media coverage of an event and have it explained in a rational evidence based manner.
It ought to be appreciated that teachers must and will engage in political discussions in their classrooms and with the children under their care.
The court’s statement, if given its literal meaning that under a democratic dispensation teachers must be “apolitical” so as not to politicise students, undermines key provisions under the United Nations Convention on the Rights of the Child to which Botswana has ratified. Under the Convention, children have a fundamental right to obtain and share information (as long as the information is not damaging to them or others). The Convention also recognizes that children are entitled to the freedom to express opinions and to have a say in matters affecting their social, economic, religious, cultural and political life as well as to form their own views, on certain religious practices or cultural traditions which clearly require political teaching. Importantly the Convention recognises that children have the right to obtain information that is important to their health and well-being and that governments should encourage “mass media – radio, television, newspapers and Internet content sources – to provide information that children can understand”. All aspects of education which would be best served in having discussion under professional guidance.
The court’s finding therefore that teachers, generally must be “apolitical” cannot be meant literally so as to imply that a teacher must not teach students in a manner that may “reasonably be regarded as advocating one party or the other.” The statement must therefore be interpreted to mean that a teacher cannot make such political comments in the media merely because they are a teacher; if this is so then what purpose does the limitation on the right of a teacher’s freedom of expression serve other than denying a teacher the opportunity to stand by their convictions and lead by example in a public forum?
This gives rise to a follow up and equally important questions that were not addressed by the court, why would government prohibit  teachers from expressing opinion in the media? What purpose would it serve and who does the imposition of the limitation seek to protect?
The Court in finding that teachers “sway” the minds of children when writing in a newspaper sets a risky precedent, because it does not address a harm that government was trying to protect against. It simply provides a blanket ban by government on teachers expressing political thought in the media, which fact alone could not have been what the Constitution sought to protect when limiting the rights of teachers to their freedom of expression. The 1996 case cited by the Court of Appeal held that government employees could be barred from active political involvement because if they did so they could directly affect the running of government, which is meant to be apolitical. There was a perception of a real risk that those who engaged in active politics could frustrate government functions for political ends. In Dintwe’s case the court did not seek to establish the harm that could be suffered by teachers expressing a political view, and the considerations of the 1996 case do not therefore apply. Teachers expressing their views on political issues cannot be said to be impeding government functions in anyway nor, given the internationally recognised rights of the Child, be seen to infringe upon children’s rights.
The Court unfortunately, aside from the comment that teachers “sway” children, did not seek to ascertain what the constitution sought to achieve by imposing limitations on freedom of expression against government employees and teachers. Children have the right to be educated in a manner that promotes social and political thinking, it cannot be denied therefore that discussions that may be perceived as critical of a political party are conducted in the classroom, as well as at home and in the family’s social circles.
To deny a teacher the right to publish articles that may reasonably appear to advocate one party over another must serve the interests of another constitutionally protected right. The denial of a right of freedom of expression for example, must protect another right, such as dignity. The Public Service Act does not say which right it is seeking to protect; it was therefore incumbent on the court to find it. And if the Court could not find it then Section 34 could not be justified in a democratic society and it would be unconstitutional.  Section 34 does not protect any other right, it merely reduces the right to freedom of expression of civil servants.
In order to be able to take disciplinary action against Dintwe, government had be able to say that his actions were unlawful. Whether the publication of the article was unlawful required looking at the constitution and the limitations imposed on freedom of expression and testing them against Section 34 of the Public Service Act. In this instance, one could not look at whether the content was reasonably perceived as being political but rather what harm the constitution was trying to protect in creating the limitation. The Court singularly failed to discuss this.
In the United States, as far back as 1968 in the case of Pickering v. Board of Education, the Supreme Court held that the dismissal of a teacher in much the same circumstances as Dintwe was unconstitutional, and that the provisions that prohibited Pickering from making statements in a public forum were equally unconstitutional.
In researching for this article, it was interesting to note that Justices Howie JA, Abernathy JA and Brand JA in their distinguished careers have given lengthy opinions in judgements, equating freedom of expression with being the cornerstone of a free and open democracy. It is unfortunate that they did not delve into what freedom of expression entails and its import in the context of Botswana’s democracy even though, given the current judgement that they agreed to, they would have found the limitations by government to have been acceptable. It is important to for all citizens to understand why their rights are limited and not be left with questions.
Dintwe’s Judgement is sadly a stark reminder of the times in which we live and government’s intrusion into an individual’s rights to freedom of expression, now with the endorsement of the highest Court in the country.