‘If the Police are not above the law, so is the Press’ – Judge

Nicholas Mokwena
Tuesday, 16 January 2018
Sunday Standard editor Outsa Mokone Sunday Standard editor Outsa Mokone Botswana Guardian

A five-person Panel of Court of Appeal Judges was Wednesday itching to make a comment in their ruling in the controversial sedition case against veteran investigative journalist and editor of Sunday Standard, Outsa Mokone.

Despite repeated protestations by Mokone’s attorney, Dick Bayford of Bayford & Associates, that it would be improper to do so since the matter is before the trial court, the Judges nonetheless made tacit and suggestive comments, which may border on influence peddling.

Mokone has approached the Court of Appeal to challenge the decision of the High Court, which ruled that Sections 50 and 51 of the Penal Code are consistent with the Constitution and his warrant of arrest in 2014 was lawfully issued and executed. 

Mokone was arrested after his publication carried a story in August 2014 headlined ‘President hit in car accident while driving alone at night’. The author of the story Edgar Tsimane has since fled the country allegedly fearing for his life after a tip-off.  A warrant of arrest was applied for by government through Attorney General and was issued on the 2nd of September 2014 by Gaborone Magistrate Court for alleged violation of Section 51 of the Penal Code for committing the act of Sedition.  On Wednesday the five Court of Appeal judges asked Mokone’s lawyer, Dick Bayford if it would be wrong for them to make a comment in their ruling regarding the conduct of his client. Bayford argued that it would not be procedural for the court to make such a comment since the case of sedition is still at the Magistrate court. 

Proceedings of the trial court on the case have been suspended pending the finalisation of the current case in which Mokone is challenging the Sections of the Penal Code that deals with Sedition and the warrant of arrest. “We want to comment on the matter of principle regarding the conduct of your client. Is it not the duty of the editor to have cross-checked the facts? He only checked with the journalist who wrote the story. People who were involved when the alleged accident happened were not followed up on because they denied what was said to have happened in the published article. We have to look at the matter of principle,” said Justice Isaac Lesetedi. Bayford said procedurally it would be incorrect because the Appeals Court is not seized with the matter and it is only the trial court that can deal with it. Bayford indicated that the Court of Appeal should only confine itself with the matter before it and not go beyond its mandate.  The judges seemed not convinced by Bayford’s argument reiterating that they do not see what harm would be done to Mokone’s case if the panel could make a comment. “If the police are not above the law, so is the press,” said newly appointed Judge, Justice Fritz Brand. 

Judge President of the Court of Appeal Ian Kirby raised concern that the article contained serious allegations about the President, which allegations the Commissioner of Police says were inaccurate.  He said the article contained allegations that the president tried to bribe the witness not to report the matter. Bayford however stood his ground that it would be incorrect for the court to comment on the matter which is before the trial court. He further stated that the issue of cross-checking the facts with sources could not be done. He stated that the journalist who wrote the story has not deposed of an affidavit.  The court is expected to deliver its judgement on the appeal next month. Mokone through his lawyer wants the appeals court to make a declaration for future directions on whether or not the warrant of arrest issued by the Chief Magistrate for Gaborone Administrative District for his arrest was applied for and issued lawfully; whether in the circumstances the same empowered the police to detain him; whether the provisions of Section 50 and 51 of the Penal Court are ultra vires Section 12 of the Constitution of Botswana; whether the 4 hour 40 minutes ‘delay’ on the night of the 8th of September 2014 outside of visiting hours allow Mokone to consult with members of Bayford and & Associates (his attorneys) constituted an infringement of Mokone’s right to legal representation as enshrined under Section 10 of the Constitution?

According to Penal Code (Cap 08:01) Section 50 (1), a seditious intention is an intention to bring into hatred or contempt or to excite disaffection against the person of the President or the Government of Botswana as established by law; to excite the inhabitants of Botswana to attempt to procure the alternation, otherwise than by lawful means, of any other matter in Botswana as established.  

If found guilty a person is liable to imprisonment for a term not exceeding three years and such a publication shall be forfeited to the state. Section 51 (5) of the same Act states that when a proprietor, publisher, printer or editor of a newspaper is convicted of printing or publishing a seditious publication in a newspaper, the court may in addition to any other punishment it may impose, and whether or not it has made an order under subsection (4) make an order prohibiting any further publication of the newspaper for a period not exceeding one year.

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