Sedition Case: Bayford to call Khama as witness
Outsa Mokone to face trial on charges of Sedition as Bayford intends to call Khama to the stand.
Whilst the President enjoys immunity from Prosecution for criminal offences done whilst in office under section 41 of the Constitution in either his official or private capacity, such immunity does not extend to testifying before Court and giving evidence on his government’s policies and statements on the media.
On the evening of the 14th December the Botswana Democratic Party (BDP) invited journalists from various selected media houses for an “evening out” at Cappellos, ostensibly to mend broken fences and strained relationships; on the 16th December Outsa Mokone the Editor, Journalist and co-owner of the Sunday Standard appeared before the Broadhurst Magistrates Courts on Charges of Sedition.
Mr Mokone had initially appeared on the 14th December before the Regional Magistrates Court, where the case was referred to another Magistrate when the Regional Magistrate advised defence Attorney Dick Bayford and Public Prosecutor Manchwe that the accused was well known to him. The legal representatives had already agreed, between themselves that subject to the Court agreeing the matter would be postponed pending the determination of an Appeal to the Court of Appeal from an earlier challenge by Mokone on the Constitutionality of Sedition laws generally.
Speaking outside of Court subsequent to the initial hearing, Bayford and Manchwe discussed the merits and demerits of the matter and the way forward, including the production of documents and list of witnesses. Manchwe advised Bayford that he would avail his list of witnesses and witness statement by the 16th December at the rescheduled date of hearing. Manchwe further noted that he intends to call 7 witnesses during the course of the Trial, none of whom were the subject matter of the article in question; The President.
Bayford’s response to this revelation was to advise Manchwe that in the event the Prosecution did not call the President then he would. Relying on various cases by the Court of Appeal, Bayford advised Manchwe, on the principle that those persons essential to the narrative of the prosecution case are required to be called. He noted that not only would such persons have to be called but that the defence would be entitled to interview and record a statement from such witnesses in the event the Prosecution failed to avail the witness to court.
In spite of the clearly good interpersonal relationship between the two senior lawyers, the tension in the prosecution camp was palpable. Manchwe sought to point out that the Investigating Officer for the case would show that the President was not involved in a motor a vehicle accident and that therefore the story was false, as a result no additional evidence would be required to prove the elements of Sedition. In so saying, clearly seeking to shield the President from the requirement of testifying.
Bayford once again countered by indicating that only the President could testify as to whether he was or was not driving on the day in question and others, including the Investigating Officer could only testify as to what they had been told and observed but not the truth of such positions.
The legal foundation has been set for one of the most important cases on Freedom of Expression in the County’s history and appropriately the leader of the Party that seeks to mend bridges with the Media, the Leader of the Nation who espouses respect for democracy and freedom of the media to the international community will be called upon to testify and speak to such Freedoms of Expression as advanced by his party and government at home before our national courts.
The Charge levelled against Mokone and Sunday Standard pertains contempt for the President, under section 51 as read with Sections 50 and 52 of the Penal Code. Unusually for a charge of Sedition, the article in question is not political. The article, published in the Sunday Standard on the 1st September 2014 speaks of an alleged motor vehicle accident involving the President and events subsequent to the accident. The perception of “contempt” does not fall to be tested against the public perception as would apply to a political article and how a reasonable person in the community viewed the article. The nature of the article authored by Edgar Tsimane, who was granted political asylum by the South African Government in recognition of Sedition being a political offence, is a “news story”, accurate or otherwise it has no political connotations. The Prosecutions rationalises the article is political in that it erroneously reported on an accident which according to the article involved the President and consequently that it brings the President into contempt. This rationalisation however can only be ascertained from the view point attributable to the President and those around him. Unlike the political articles that normally invoke Sedition charges in other jurisdictions, the President in this instance will have to explain why he is of the view that the article in question about him as a news story (erroneous or otherwise), amidst numerous others, invokes such contempt in terms of the penal provision.
In the event the Court agrees with Bayford, the implications on the President and the Botswana Democratic Party will be extensive. The President has on numerous occasions called Journalists unpatriotic and accused them of seeking to undermine the National Constitution.
Speaking in 2013 Khama stated that the private media “constantly lead people astray in pursuit of their unpatriotic and nefarious agendas against everything that their government does whether good or bad,” adding further that as the private media “they have blinded themselves with negativity in their desperate attempt to discredit us in order to promote the opposition. They pretend to understand complex problems when they don’t. They jump to conclusions before finding out the facts. They condemn without any responsibility and often start a fire without knowing how to put it out, and act with reckless disregard for the consequences as to whether or not they harm others or the nation.”
On the 1st April 2016 Khama, again addressing the BDP National Council (54th) launched yet another attack on the private media, this time making an additional classification joining “opposition media” with “opposition lawyers” stating, “They peddle all these unpatriotic tendencies through themselves and opposition journalists and opposition lawyers in the attempt to undermine our constitution.”
Bayford, Mokone’s defence lawyer is known largely as a human rights and rule of law Attorney that has been associated with opposition politics, will undoubtedly relish the opportunity to cross examine the President on his previous public statements in order to illustrate that the President has self-created the perception of public contempt. In defence, as ascertained from the informal discussions between the opposing lawyers will not only focus on the article in question itself but further that the current charges are actuated by malice. A prosecution actuated by malice is not sustainable in court.
Sedition, one of the more serious offences in our penal code carries, on conviction a maximum penalty of 3 years, confiscation of the printing machine used to create the seditious publication and the banning of the newspaper that published the seditious article for a maximum period of one year. Sedition is recognised around the world as being a limitation against free speech and the expression of political will.
The Sunday Standard has been in the forefront of media coverage of the abuse of office by the current Botswana Democratic Party government and their allies. Exposing numerous allegations of corruption and lack of accountability. As a thorn in the side of the government a conviction could see the newspaper silenced for a considerable period to the detriment of the nation who has the right to receive information under the provision of the constitution that advance freedom of expression.