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Ombudsman’s BTV Report: There’s More To The Problem Than Bias

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  • Well intended but compromised
  • Middle road to no where
  • BTV bias more than maladministration
  • BTV bias human right violation
  • Constitutional right to freedom to information ignored

The Office of the Ombudsman on 29th August 2017, issued its statuary report into its investigations of political parties coverage on Botswana Television (BTv) and its maladministration. The investigations arose due to a complaint initiated by the Deputy President of the Botswana National Front (BNF) Reverent Prince Dibeela.
The 17-page report has found that BTv violated its public obligations by failing to give fair and equal coverage to the opposition parties’ political events, highlighting the lack of coverage of the unveiling to the late Kenneth Koma’s tombstone and Dr. Margaret Nasha’s admission to the opposition. In addition, the report found that the Botswana Democratic Party had received 82 percent coverage compared to 18 percent for all the opposition parties combined. As a result of the imbalance in coverage the Ombudsman found that the BDP has enjoyed undue political mileage.
In light of its findings, the Ombudsman has recommended that BTv ought to be regulated by legislation, creating an independent organ along the lines of South Africa’s South African Broadcasting Corporation (SABC) and the English British Broadcasting Corporation (BBC).  In addition, the report recommends that times slots should be allocated to all political parties to ensure that they are able to equally convey their political messages and programmes to the public. The report has been sent to Botswana Television for immediate implementation under section 8 of the Ombudsman Act.
The investigations, initiated by Debeela arose due the increasing number of complaints by opposition members of parliament and the public into the lack of equal coverage given to political parties. In parliament both Molale and Makgalemele in their respective capacities have in recent years denied the unequal coverage. Both the Minister and Assistant Minister of Presidential Affairs have stated that the coverage given by BTv falls within its editorial policies and is balanced (see Parliamentarians may face BTv Report Repercussions).
According to the report, BTv has not complied with its editorial policies, “The Botswana Television Mandate” and “Editorial Guidelines”. Referring to the Guidelines the Report notes that Radio Botswana and BTv, are obliged to ensure that the public is informed of all political programmes and policies from all political players. While the report confirms that BTv has not adhered to this policy it has not tried to explain why it has not done so, an important consideration when addressing the remedial action and how such action is to be implemented.
The Ombudsman’s investigations, according to the report, focused on the editorial policy of BTv as a “public broadcaster”, having found that it has the jurisdiction to investigate the allegations on grounds that if the complaints were correct then they would amount to maladministration. In so doing the Ombudsman narrowed the scope of his investigations and ignored his equal mandate to investigate questions of human rights abuses, which include the public’s right to receive information under the freedom of expression provisions of the Constitution.
This distinction between maladministration and human rights abuses is not insignificant, according to legal scholars. While the act permits the Ombudsman to investigate both, the results of his findings in respect of each vary considerably with the remedial action that he may impose, stated an attorney consulted by this publication. “Maladministration can be correct by compelling compliance with legislation, while human rights abuses place government on a much more precarious footing.”
The report appears to accept Debeela’s complaint from the starting point that BTv is a public broadcaster. A position that is highlighted by its making a comparative analysis of SABC and BBC. BTv, with the introduction of the Botswana Communications Regulatory Authority Act (BOCRA), ceased to be a public broadcaster, as such entities were abolished with the repeal of the Broadcasting Act. BTv is, as a consequence, not created by legislation and a state run political media outlet fully funded by the Office of the President. For the year ended 2016, the Auditor General’s Report reflects that the Office of the President allocated in excess of P166 million to BTv alone. The ultimate authority over BTv is the Office of the President. The Ombudsman did not investigate the lack of independence of BTv and treated BTv as a standalone entity without looking at the lack of a legislative framework for the broadcasting entity. As such the investigations did not consider the administrative and political ramifications of the Office of the President’s financial control and its impact on Btv’s editorial content.
Chris Bishop, the former head of BTv, was forced to resign from his position in 2001, due to editorial censorship from the Office of the President over a documentary on Mariette Bosch.  At the time, Director of Information and Broadcasting, Andrew Sesinyi denied government moves to control the news at BTV. Bishop alleged that the Office of the President exercised editorial control for broadcasting at BTv and would not allow the Bosch documentary to be broadcast, which undermined both BTv’s and his independence. Bishop subsequently successfully sued government for constructive dismissal.
In spite of the Ombudsman recommending the report’s immediate implementation due to it relating to issues of national interest and that the maladministration by BTv is continuing in nature, the report and the Ombudsman Act do not indicate how the report is to be treated and how it’s remedial recommendations are to be implemented. Only parliament can pass legislation to create a truly independent broadcasting service that will meet its public obligations. The Ombudsman has no power to impose such legislative demands.
Similarly, by failing to address the connection between the political office that funds BTv, the Office of the President, the report and its findings are not binding on the very office that has ultimate, albeit indirect, editorial control of BTv’s content.
In 2002, the then Ombudsman, the late Lethebe Maine, filed a special Report to Parliament on his findings that then Vice President Khama was abusing his authority by using Botswana Defence Force helicopters. Neither Parliament nor the Office of the President acted on Maine’s recommendations. At the time, then law lecturer and now Judge Lebotse as well as many within the legal fraternity, indicated that not only had government’s inaction undermined the power of the Ombudsman but that such inaction was indicative of the lack of independence of the office. In his annual reports the late Maine highlighted the lack of independence of his Office, calling for it to be independent and not to fall under the Office of the President. Despite Maine’s calls for autonomy and independence his calls went unanswered.
Though Maine’s report and remedial recommendations on Khama’s use of BDF helicopters was never challenged in court, they were never implemented. In 2016 Vice President Mokgweetsi Masisi, raised on a point of correction when Francistown South MP, Wynter Mmolotsi stated that government only paid lip service to the Office of the Ombudsman and ignored its recommendations as shown by the Khama BDF report. Masisi stated that the Ombudsman had acted outside his mandate as he did not have powers to conduct such an investigation; “That was unlawful,” he said.
Under the Ombudsman Act, the report cannot be challenged in court. However as with all administrative actions a court will interfere if the action was taken unlawfully or made without legislative support, noted an attorney. “Ombudsman’s BTv Report recommendations that it ought to be independent and legislation should be implemented, while commendable has no basis in law”, stated the attorney. “The recommendations that BTv adhere to its editorial guidelines further lose sight of the fact that they are only guidelines that can be changed, without addressing the root cause of BTv’s problems, political control, and what will happen if they are not implemented,” the attorney added.
“Maladministration is the activity or practice which results in non-compliance with administrative regulations, to suffer an injustice are required by the act would require looking at what rights of individuals have been affected and that can only be freedom of information under freedom of expression provisions, ultimately this is a question of human rights not mere lack of following ‘policies’.”
The report found that dealing with the bias of BTv coverage is an important issue of national interest but it did so only as a question of maladministration. The report did not consider that access to information is a human right, which the Ombudsman is empowered to investigate on its own with or without a complaint having been filed.
As a democracy protection institution (DPI) the Ombudsman was obliged to investigate BTv bias as a violation of Freedom of Expression. It failed to do so. The answer for this could well lie in its own lack independence, the Ombudsman though intended to be a watchdog for parliament, falls under the Office of the President. Being alive to the failings of past controversial reports the Ombudsman took a middle road. One that the public will now await to see implemented or undermined.
WILL PARLIAMENTARIANS FACE BTV REPORT REPERCUSSIONS
The Ombudsman’s report on Btv bias may have unintended consequences for Eric Molale and Phillip Makgalemele with both potentially being called before to the parliamentary ethics committees for past answers given in parliament on BTv coverage.
Parliamentary questions and answers are not only sacrosanct, they are a vital tool for politicians and the public alike to ensure government accountability. Since the introduction of BTv, opposition members of parliament have increasingly raised concerns over its bias in favour of the ruling party. These allegations have been persistently denied.
From 2014 to present a minimum of 5 questions without notice have been placed before parliament on the bias shown by the Daily News, Radio Botswana and Botswana Television in favour of the ruling party.  Both Molale and Makgalemele have variously responded to such allegations with denials and figures that do not coincide with those of the Ombudsman.
The Ombudsman found that BTv allocated 82% coverage to Botswana Democratic Party, while all the oppositions parties combined enjoyed 18%. The figure is in stark contrast those availed by Makgalelmele to parliament in 2015 when answering Keorapetse’s question on BTv coverage.
The Assistant Minister for Presidential Affairs and Public Administration stated that for the period June 27th 2015 to July 27th 2015,  “His Excellency the President has appeared (on BTv) is three times. (ii) Ministers (taken as a group) appeared seven times. (iii) Members of Parliament appeared eight times; (iv) Leader of the Opposition appeared three times; and (v) The Leaders of Political Parties (taken as a group) appeared two times”.
Additionally the Assistant Ministers stated in February 2016 that the “State media including Btv derives its editorial policy from the purpose for which they were set up by government- publicity and promotion of policies and programmes that benefit Batswana” (BOPA).
“Whether covering political or other types of events, state media including Botswana Television is guided by the basic principles of journalism and nation-building, that is factuality, accuracy, truthfulness, and being ethical or in good taste relative to matters of public interest. Like any professional media establishment however state media reserves the right of editorial decision making with respect to what and when to cover, and if or not to broadcast material collected,” Makgalemele stated in parliament.
Deriding the opposition MPs the Assistant Minister has stated that “The issue of fair and equal coverage between opposition parties and the ruling party is an old debate and a matter of opinion making because fairness in one person’s opinion is not necessarily fairness in another person’s view.”
The answers availed by the Assistant Minister now, contradicted by the Ombudsman’s report will call into question the candour of his responses, raising questions of possible complaints being levelled against him to the Parliamentary Business Advisory Committee to investigate his conduct.
For his part, in December 2016 Molale declined to answer questions on the coverage given on the front page of the Daily News by stating it was in the public domain. He rebuked Phenyo Butale for insisting that such information was not in the public domain and that it ought to be availed, stating, “I note the consistency with which Honourable Butale has raised this matter. I am not that much worried about it. It is just that I need to refer him to the adage that, “consistency is the mark of a small mind.”
The lack of answers and the obfuscation of figures over the percentage of coverage given to the political parties in parliament have been highlighted by the Ombudsman’s report.  Whether any action will be taken against the responsible minister and his assistant remains to be seen.

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