Botswana

By Caitlin Gold

Botswana flag

Flag of Botswana

Botswana, a southern Africa nation comprised of many different tribes ranks in the top 50 of countries with strong civil liberties for citizens, according to the 2017 World Press Freedom Index. However, their rank of 48 has dropped five spots since 2016. The decline of the World Press Freedom Index number is primarily due to President Ian Khama’s increasingly authoritarian regime, and the government’s strong hold on the media. Presently, the Botswanan Constitution does not specifically guarantee press freedoms but does outline freedom of speech and legal protections for media outlets (Freedomhouse).

Historical Background

Botswana, formerly known as the British protectorate of Bechuanaland, was founded in 1885 (Maitland-Jones 5). Great Britain wished to indirectly rule over the territory, as they had no intention of colonization due to the dry climate (Hartland-Thunberg 2).  During this time, the country was comprised of eight independent tribal groups each with their own territory and led by a hereditary chief (Stevens 113). The protectorate was largely peaceful with the exception of boundary disputes between tribal groups (Stevens 113). The protectorate remained poor, as attempts to start mining and new agricultural developments were objected by head chiefs for fear that these techniques would only increase colonial control and encourage white settlement (Encyclopedia). The path to independence was initiated by the political controversy of the Ngwato tribe chief, Seretse Khama’s marriage to a white woman (Stevens 134). The British government barred Khama of his chieftainship and exiled him from the protectorate for six years (Stevens 134-135), to appease South Africa which opposed Khama’s marriage due to the racial segregation that was being enforced under apartheid (Encyclopedia). Supporters of Khama started to organize political movements from 1952, as it became clear that the protectorate was pushing toward self-sufficiency (Encyclopedia). The tribal government previously practiced developed into a legislative council established by the Constitution of 1961 (Hartland-Thunberg 2), and the establishment of Bechuanaland Peoples Party followed shortly after in 1962 (Stevens 141-142). Botswana officially gained independence on Feb. 21, 1966 (Stevens 157). At independence and during the formation of the constitution, there was a big push to preserve the basic principles of judicial independence, individual rights, and respect for the legal profession (Maitland-Jones 89). During the early years of independence, the economic success of the new country seemed bleak, because of the lack of economic development beforehand and the high cost of developing infrastructure. However, due to foreign investment in mineral extraction, economic growth increased and their economy’s dependence on South Africa and Rhodesia lessened (Hartland-Thunberg 5-7). In the years since, Botswana has gained international distinction as one of the few African nations that has maintained an impressively stable economy and democratic government since independence (World Fact Book).

Mineral extraction is the driving force of the Botswanan economy. Diamond mining and extraction accounts for 25 percent of the country’s Gross Domestic Product (World Fact Book). Additionally, Botswana is known for having the world’s largest elephant population, and tourism is steadily increasing in popularity due to the conservation practices and substantial nature preserves (World Fact Book). Botswana is located in southern Africa and is bordered by Namibia, South Africa, and Zimbabwe (Stevens 112).

The estimated 2,214,858 citizens of Botswana live under a parliamentary representative democratic republic, though usually referred to as a democracy, with President Khama as their leader (World Fact Book). The Botswana Democratic Party has won every election since independence from Britain in 1966 (Salih 303). The legal system is a mix of civil law influenced by the Roman-Dutch model with common and customary law (World Fact Book). The government power is shared among three branches, much like the United States. Executive power is exercised by the president, legislative power by the president and the national assembly, and judicial power by the courts (Fombad 13). The bicameral legislative branch consists of an elected National Assembly, and the consultative committee, Ntlo ya Dikgosi comprised of the chiefs of the eight principal Botswanan tribes (Fombad 13).

Free Speech

The Botswanan Constitution clearly outlines freedom of speech, association, and assembly however in practice these rights are extremely limited and heavily regulated.

One such example of these regulations is the rule that citizens are legally obligated to acquire a police permit before any sort of public protest (Letsididi). Numerous protests such as the 2016 #IShallNotForget movement protesting a BDP councilor’s inappropriate sexual relationship with a minor who he got pregnant, have been terminated because the protesters could not get a police permit (Letsididi). Although not allowed to protest, the group continues to advocate for making education safe for women and girls.

In 2017, it was reported that a student at The University of Botswana burned a flag during a strike over owed allowances (Letsididi). At the time of the incident, police were unsure if burning the flag was illegal or not mostly because this appeared to be the first known time someone had burned a national flag in protest (Letsididi). President Khama is strongly against burning the flag, and has spoken out against the act numerous times (Letsididi). There are codes listing the national symbols whose desecration would most likely result in criminal charges, however there is not a specific law against flag burning mostly because it hadn’t been a problem before and hasn’t been done since (Letsididi).

In 2014, the Botswana Court of Appeal, ruled that the gay rights organization, The Lesbians, Gays & Bisexuals of Botswana, had the lawful right to be registered as a lobbying organization (Goitom). In Botswana, it is not illegal to identify as homosexual, but citizens may not engage in homosexual contact, as it is a crime (Liebschutz). The UN has called on Africa to give rights to members of the LGBT+ community, but government leaders remain resistant (Liebschutz). The decision dissolved the ban on lobbying for gay rights and overturned the 2012 decision by Botswana’s Department of Labor and Home Affairs’ that prevented LEGABIBO from registering as a civil society organization (Goitom). The decision was based on the grounds that lobbying and advocacy are protected by the freedom of expression (Goitom). This decision has opened the door for greater LBGT+ rights (Grahm). In 2016, the high court ordered the government to recognize a trans woman’s identity, and she will be issued a new identity card (Grahm). The high court has been seen as more progressive since lifting the ban on lobbying for gay rights organizations, however homosexual contact is still a crime under Botswanan law (Grahm).

Free Press

Press freedoms are not guaranteed in the Botswanan Constitution. The media faces strong restraints by the government, and limited access is granted to those without governmental power.

The Botswanan Government is notorious for punishing the media, and legally criticizing the government is nearly impossible (Press Freedoms Index). In 2013, President Khama announced that government officials would begin using public funds to pay for defamation lawsuits against the media (Konopo). After serious backlash from citizens the motion was dropped in 2014 (Freedomhouse).

The clash between private owned media sources and the government is worsening, as the government uses intimidation and fear to prevent the publication of unsavory articles (Poteete). In 2018, the INK Centre for Investigative Journalism in Gaborone was broken into following the leak of The Tholwana Borethe report (Komane). The report included claims of illegal government interference in the upcoming 2019 election and was leaked to numerous news organizations in 2017 (Komane). File cabinets were broken into, but nothing was stolen (Komane). This break in is a part of the increasing abuse of independent media outlets by government agents (Komane). Such events have resulted in self-censorship by many news outlets and a decline in the quality and reliability of the media (Freedomhouse).

In 2014, Outsa Mokone, editor of the Botswanan paper, the Sunday Standard was arrested following the publication of an article claiming that President Khama had been at fault for a car accident, but it was not reported to the police (Thamm). Mokone was charged with sedition and faced two years in jail (Thamm). Events such as these have emphasized the difficulty of criticizing President Khama, and how easy it is for government officials to win libel lawsuits. Activists have called for greater press freedoms, but their increasingly powerful government and vague press freedoms outlined in the Botswanan constitution make provoking change especially difficult (Press Freedom Index).

The success of the BDP is partially due to the strong hold the government has on the media. Opposing politicians in Botswana, while allowed to run for office, have a “moderately restricted access to the media and campaign resources” (Van Eerd 15). The state-run media outlets are heavily biased and do not allow for those running on the opposing side to respond to claims degrading their integrity (Poteete). Additionally, the government is known to use state-run media outlets to respond to claims made by privately owned media outlets; these pieces are often published without being fact checked (Freedomhouse).

Critical Comparison

The characteristics of democracy are unvarying throughout the world; however, the quality of a democracy largely depends on the socio-economic and political climate of the country. It is important to note that Botswana’s democracy is praised so highly because the stability and longevity of this form of government is unique compared to the surrounding African countries (Salih 293). In comparison to the United States, the free assembly rights of Botswanan citizens are far more limited. Both United States citizens and Botswanan citizens are allowed to protest, however, Botswanans must obtain a police permit beforehand (Letsididi). Because of this, many protesters have not been able to obtain a permit and protests have been shut down, and/or stopped because of the targeted issue being protested; thus, limiting freedom of expression (Letsididi). In wishing to protect the broad free speech and expression of the First Amendment, the United States condemns imposing content-based regulations on protesters. In the 2017 case Kessler v. City of Charlottesville, alt-right activist, Jason Kessler, applied and received a permit granting him permission to protest the removal of a statue of Robert E. Lee and the renaming of Lee park to Emancipation park (Kozlowski). The city of Charlottesville also granted permits to the counter-protesters who were against Kessler’s message (Kozlowski). A few days before Kessler’s protest, the city revoked and modified his permit based on safety concerns and stated that he would have to move the protest from Emancipation park to a different location (Kozlowski). The city did not provide sources for the safety concerns and had not modified or revoked the permits granted to the counter-protesters (Kozlowski). Kessler petitioned the United States District Court for the Western District of Virginia to prohibit the city from interfering with planned demonstrations (Kozlowski). Kessler claimed that in revoking his permit, the city had violated his right to freedom of speech (Kozlowski). The court granted the motion and ruled that preventing protests based on their content is unconstitutional, as “a municipal government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (Kozlowski). The United States does not support limiting protests based on their content, thus protecting the rights of citizens to protest more so than Botswana.

Flag desecration as a form of protest is not a right given to Botswanan citizens. There are codes listing the national symbols whose desecration would most likely result in criminal charges, however there is not a specific law against flag burning (Letsididi). That being said, flag desecration is not protected as a form of free expression, as it is in the United States. In the Supreme Court case, Texas v. Johnson, Johnson burned a flag during a protest criticizing governmental activities (491 U.S. 397, 1989). This action was seen as disrespectful by many people; however, the majority of the court ruled that flag burning was symbolic speech and protected under the First Amendment. The constitution does not allow for limitation of speech simply because some might find it offensive (491 U.S. 397, 1989). For this reason, the United States protects expression more so than Botswana.

Freedom of the press is another right not included in the Botswanan Constitution, making it nearly impossible to criticize the government (Freedomhouse). Citizens and media organizations face heavy press restrictions, as libel cases are frequently won by Botswanan government officials, and defamation is both a criminal and civil crime (Freedomhouse). Citizens in the United States hold the right to criticize the government through word of mouth, the media, the internet, etc… In New York Times v. Sullivan L.B Sullivan, the Montgomery city commissioner, filed a libel action after a paid advertisement was published in The New York Times containing false statements criticizing city officials (376 U.S. 254, 1964). Sullivan felt that the criticism of law officials in Montgomery was aimed at him. The court found no proof that the advertisement targeted Sullivan and noted that one cannot win on grounds of libel unless there is solid proof that the content was published with the intent of causing harm. The court unanimously ruled that citizens can criticize the government and public officials, and any attempt to censor such speech is a detriment to American society (376 U.S. 254, 1964). The United States protects the right to criticize the government and freedom of the press more so than Botswana.

Conclusion

It is evident that Botswana shares similar issues regarding the quality of liberty as the United States. Both United States and Botswanan citizens fight for their rights, however Botswanan citizens face greater backlash when trying to ensure their constitutional rights. From limiting the content of protests to the fear provoked self- censorship of news outlets, it is likely the quality of free speech and press rights in Botswana will continue to decline.

 

Works Cited

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This essay was last updated on April 30, 2018.

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