IN THE HIGH COURT OF BOTSWANA HELD AT LOBAT: UAHGB-000153-14 In the matter between: OUTSA MOKONE Applicant and ATTORNEY GENERAL (for and behalf of) 1 Respondent ‘THE CHIEF MAGISTRATE FOR THE GABORONE ADMINISTRATION DISTRICT 2" Respondent THE COMMISSIONER OF POLICE 3° Respondent JUDGMENT DUBE AJ 1 The Applicant was arrested and detained on the 8" September 2014 on suspicions that he, on 31 August 2014, committed the crime of seditious intention contrary to Section 50 (1) (a) as read with Section 51 (1) (c) of the Penal Code (Cap 08:01). 2 Unhappy with the arrest and detention, Applicant, by notice of motion, approached the High Court on a certificate of urgency on 9 September 2014for his release, and by consent of the parties obtained an order in the following terms: 4) 4) 9 qd @ The matter is urgent and that the normal Rules of Court relating to time, form and service are hereby dispensed with: The Applicant be released forthwith from custody, if he had not been released yet. Respondent shall not execute and implement the Warrant of Arrest issued on the 2" September, 2014 by the Chief Magistrate for the Gaborone Administrative District (2% Respondent) for the apprehension of the Applicant. The Respondent shall not apply for any further warrants of arrest against the Applicant based on facts similar in nature to those founding the Warrant aforesaid pending the finalization of this Application. A Rule nisi is hereby issued calling upon the Respondents to show cause why the following Order should not be made; i) — declaring that the Warrant of Arrest issued on the 2” September, 2014 by the Chief Magistrate for the Gaborone Administrative District (2 Respondent) for the apprehension of the Applicant is unlawful. i) declaring that the provisions of Section 50 and St of the Penal Code are contrary to Section 12 of the Constitution of Botswana ‘in that they infringe on the Right to Freedom of Expression; ji) declaring that the refusal by the Botswana Police Service to allow Applicant's Attorneys access to him whilst in Police custodyg) ny) D on the night of & September, 2014 and morning of #* September, 2014 to consult, obtain from hin a Power of Attorney and signature of his affidavit is an infringement to his ght: i) to legal representation as enshrined under Section 10 of the Constitution of Botswana; and ) to. access this Honourable Court. The Applicant is hereby granted leave to file any additional or supplementary affidavit if so advised; such leave to be exercised within 14 days of this Order; The Respondents shail file their Answering Affidavit or any answer to the application within 28 Court days of the fling of any addtional or supplementary affidavit(s) by the Applicant, or within 28 Court days of the expiry of the period allowed the Applicant in terms of 3 above, whichever is earlier; The Applicant shall fle his Replying Affidavit, if so advised, within 14 Court days of the filing of the Respondents’ Answering Affidavit or any answer to the application in terms of 4 above; Pending the finalization of this application, the State shall not institute any criminal proceedings against the Applicant based on facts similar in nature to those founding the Warrant aforesaid; The respondents waive Statutory Notice in eu of the extended time ‘periods for fling its response;4) The matter is set down for final case management conference on the 28 November 2014 at 9am; ) Costs for today are costs in the cause. Subsequent to the filing of the Respondents Answering Affidavit and Applicant's Replying Affidavits in 2014, as well as filing of the parties Heads of Argument, this matter only came before me for determination in June 2016 due to some prolonged administrative delays which need not be articulated ‘on this judgment. In brief, the Applicant seeks the court to make declaratory orders as follows: 1) declare that the Warrant of Arrest issued on the 2" September, 2014 by the Chief Magistrate for the Gaborone Administrative District (2% Respondent) for the apprehension of the Applicant és unlawful, ii) — declare that the provisions of Sections 50 and 51 of the Penal Code are contrary to Section 12 of the Constitution of Botswana ‘n that they infringe on the Right to Freedom of Expression; Wi) declare that the refusal by the Botswana Police Service to allow Applicant's Attorneys access to him whilst in Police custody on the night of 8” September, 2014 and morning of 9 September, 2014 to consult, obtain from him a Power of Attomey and signature of his affidavit is an infringement to his right:2) to legal representation as enshrined under Section 10 of the Constitution of Botswana; and 4) to access this Honourable Court. The Parties 5 The Applicant is Outsa Mokone, an adult male and Editor, Director and Shareholder of a weekly newspaper which is published by a company known as Tsodilo Services (Pty) Lid trading as “The Sunday Standard” duly registered in accordance with the Laws of Botswana. 6 — The 4% Respondent is the Attorney General of Botswana cited in her representative capacity for the 2% and 3 Respondents, being the Chief Magistrate for the Gaborone Administrative District and the Commissioner of Police respectively. Backaround 7 It is appropriate to outline the factual events that prompted the present application before I consider the issues for determination. 8 The crucial factual averments in the Applicant's founding affidavit are these: a) On or about 22 August, 2014, one Edgar Tsimane, a Senior Reporter in the employ of Tsodilo Services (Pty) Ltd, publishers of The Sunday Standardnewspaper submitted for publication a story headlined "President hit in a car accident while driving alone at night” for the Applicant's consideration as Editor of the newspaper. b) The Applicant considered and approved the story, and same was Published on the 31 August 2014 edition of the newspaper. c) On Tuesday 2" September, 2014, late afternoon, Mr Spencer Mogapl, the Deputy Editor of the newspaper, accompanied by Attorneys Dick Bayford and Mbakiso Mboki Chilisa attended a meeting at Police Headquarters called by the Commissioner of Police, the 3 Respondent. At this meeting, the 3” Respondent stated that: ) He was concerned about the substance of the story, particularly that it raised serious security concerns that the President could have been involved in an incident such as the one narrated in the story; ii) The only car accident involving the Presidential fleet was reported near Dibete; ii) He was concerned that there might have been a motor vehicle accident which was not reported to them; iv) It was important that if the newspaper had Information on the alleged accident involving the President, they should share same with the Botswana Police Service as the authority mandated to investigate road accidents. On the 4" September 2014, the Applicant received a letter dated 2"! s September 2014 from the 1% Respondent (Annexure “B” to the FoundingAffidavit) cautioning the Apolicant of the implications of the artide published in their newspaper; e) On the 8" September 2014, just after 1600 hours, certain CID officers came to the Applicant's office and advised him to follow them to Broadhurst Police Station. Accompanied by Attorney Mr Bayford the Applicant complied, f) At the Police Station, Assistant Commissioner of Police, Marage (‘ACP Marage”), informed the Applicant that he was in possession of Warrants of Arrest Issued against him (the Applicant) and Mr Tsimane on account of suspicion that the two had committed the offence of sedition contrary to Sections 50 and 51 of the Penal Code, A copy of the Warrant issued against the Applicant is Annexure “D” to the Founding Affidavit. The offences the subject of the Warrant relate to publication in the newspaper of the story aforesaid. 9) The Warrant was applied for by ACP Marage on the 2 September, 2014 and Issued on the same day by Chief Magistrate Slave, the 2” Respondent, at Broadhurst Magistrate Court. hh) At the Police station, ACP Marage proceeded to warn and caution the Applicant of the said charges and advised him that he was not obliged to say anything and that if he elected to so do, whatever he sald would be taken down in writing and might be used against him in a court of law in the event he was subsequently charged. The Applicant elected to remain silent.1) At or about 1830 hours of the 8" September 2014, following his election to remain silent, the Applicant was detained in a cell at Broadhurst Police ‘Station. J) At the time he was taken into police custody the Applicant instructed his attorneys to lodge with the High Court an urgent application for his release. k) Around 2100 hours in the night of 8" September 2014, the Applicant's attorneys went to Broadhurst Police Station whereat the Applicant was detained and requested access to him so that he could sign a Power of Attorney and Founding Affidavit for purposes of the envisaged urgent application which they intended to move that night. The Station Commander, Superintendent Bonosi Ronald Morupisi declined to immediately allow the said attorneys access to the Applicant. As a result, they appealed to State Counsel Sharp, who had been notified earlier of the impending urgent application. The State Counsel personally went to the police station and conferred with the Station Commander. Despite this, the Applicant's attorneys were still not allowed immediate access to him. m)When State Counsel Sharp did not make headway with the Station Commander, she sought the personal intervention of Mr Nchunga Nchunga, then Acting Government Attorney, who later came to the police station. n) Following some discussions between Mr Nchunga, State Counsel Sharp and the Station Commander, the Station Commander directed that theP, q ‘Applicant be brought out of the cells to meet his attorneys. By then the time was approximately 0140 hours In the morning, and Mr Attorney Kambai, who had earlier availed himself to act as Commissioner of Oaths in respect of Applicant's Affidavit had left. The Applicant was only able to sign the Power of Attorney but could not swear to the Founding Affidavit due to non-availability of a Commissioner of Oaths. The urgent application could not as a result be moved on the night of the 8 September 2014. At or about 1300 of the 9" September, 2014 ACP Marage accompanied by three other men in plain clothes came to the Broadhurst Police Station, wihere the Applicant was at the time incarcerated, and advised him that he wanted to conduct a search at the offices of Tsodilo Services (Pty) Ltd, the proprietors of the Sunday Standard newspaper and his residence. Thereafter, the officers and the Applicant went to Tsodilo premises, whereat they seized an assortment of properties belonging to the company. ‘Thereafter, the officers and the Applicant proceeded to the latter's residential house situate at Plot No 41127, Block 5, Gaborone, where another search was conducted by the officers. Nothing was however seized therefrom. At or about 1500 of the same day (|.e. 9" September, 2014), the Applicant wes released from police custody after the completion of the search. ‘The Court Order of the 9" September 2014 was subsequently issued by consent of the parties.10 1) On the 10" September, 2014, ACP Marage phoned the Applicant and requested his attendance at Broadhurst Police Station. Accompanied by Attorney, Mr Bayford, the Applicant went to ACP Marage’s office at the said Police Station. ACP Marage explained to the Applicant that the meeting had been convened for purposes of identifying and sealing of the properties seized the previous day. Several items were marked and sealed in police exhibit bags. The Applicant requested from ACP Marage that he be availed a copy of the search warrant the former acted pursuant to when he seized the properties. ACP Marage availed the Applicant a copy of a Search Warrant and an Affidavit. Incidentally, when this matter came before me, it emerged that the Applicant had not been formally charged with an offence under Sections 50 and 51 of the Penal Code nor has he been brought before the Broadhurst Magistrate Court or any other Magistrate Court to answer to a charge or for a preparatory examination. ISSUES FOR DETERMINATION The issues for determination are as follows:it 2) Whether or not the warrant of arrest issued on the 2" September 2014 by the Chief Magistrate for the Gaborone Administrative District for the arrest of the Applicant was applied for and issued lawfully? b) Whether in the circumstances same empowered the Police to detain the Applicant; ©) Whether the station commander’s refusal or delay in granting the Applicant's attorneys permission of access to him constituted an infringement of the Applicant's right to: i) legal representation as enshrined under section 10 of the Constitution of Botswana; and li) access to the High Court as he is entitled to in terms of section 10 as read with section 95 of the Constitution of Botswana. d) Whether the provisions of Section 50 and 51 of the Penal Code are ula vires section 12 of the Constitution of Botswana. Issue_1: Whether or _not the Warrant of Arrest Issued_on_2" September 2014 was Applied for and Issued lawfully The Applicant challenges the validity of the Warrant of Arrest issued on 2 September 2014 by the 2" Respondent and used by the 3" Respondent to execute his apprehension and detention from the 8 - 9 September 2014. The Applicant argues that the Warrant of Arrest used to apprehend him is unlawful in that its issuance did not comply with the provisions of section 37 (1) of the Criminal Proceedings and Evidence Act ("CP&E”),12 Part VI of the CP&E, that is sections 22-50, provide that arrests may be made with or without a warrant, more specifically, section 28 deals with arrests without a warrant, whilst section 37 deals with warrants of arrest. Magistrates as judicial officers are empowered to Issue warrants of arrest under this section, and It provides that: “(1) Any judicial officer or justice may issue a warrant for the arrest of any person or for the further detention of a person arrested without a warrant on a written application subscribed by the Director of Public Prosecutions or by the local public prosecutor or any commissioned officer of police setting forth the offence alleged to have been committed and that, from information taken upon oath, there are reasonable grounds of suspicion against the person, ot upon the information to the like effect of any person made on oath before the judicial officer issuing the warrant...” 13. Section 39 concerns the execution of warrants of arrest sub-section (2) of which states that: “Every peace officer is hereby authorized and required to obey and execute any warrant issued or endorsed by a judicial officer or any justice of the district in which such officer has been appointed to act.”14 Section 50 provides for search warrants, and need not be considered here for purposes of determining the legality of the arrest warrant issued by the 2"! Respondent. The Issuance of the Warrant of Arrest 15 The Applicant attached to his Founding Affidavit an application form purportedly used by ACP Marage to obtain the Warrant of Arrest and marked it annexure “E”, I reproduce it below: Botswana police South Central Division Gaborone To: The Magistrate, Gaborone District Justice of the Peace, Gaborone District Application under Section 35 of the Criminal Procedure and Evidence Proclamation (Cap 18) (now section 37 of the CP & E), for Warrant of Apprehension Application is hereby made for the issue of a warrant for the arrest of Outsa Mokone on a charge of seditious intention contrary to Section 50 (1){a) as read with Section 51 (1) (c) of the Penal Code there being from information taken upon oath, reasonable grounds of suspicion against him that the alleged offence was committed on or about 31 August 2014 in the Gaborone 13‘Administrative District or the sald Outsa Mokone is at present known or suspected to be within the Gaborone District. --signed by commanding officer of police-- *Delete whichever Is inapplicable *attorney General/Public 16 Prosecutor/Commanding officer of Police ‘The Applicant also attached to his Founding Affidavit @ copy of the Warrant of Arrest issued by the 2” Respondent marked annexure "D" and I reproduce it below: “Warrant of Apprehension, or for the Further Detention of a Person Arrested without a Warrant (section 35 of the Criminal Procedure and Evidence prociamation (Cap 18 now section 37 of the CP & E) Whereas from written application subscribed by Kabo Marage or from written information taken on oath before me, there are reasonable grounds of suspicion against Outsa Mokone of Sunday Standard Newspaper in Gaborone that he did on the 31 August 2014 commit the crime of seditious intention contrary to section 50(1) (a) as read with section 51 (1) (¢) of the Penal Code. These are therefore, in the name of the State to command you that immediately upon sight hereof you apprehend or cause to be apprehended the said Outsa Mokone and brought before court to be examined and to answer to the said information and to be further dealt with according to law. 417 Given Under my hand at ~ this day of -— Signature of judicial officer or justice issuing warrant” (Underlining for emphasis only) The Applicant attacks the validity of the warrant of arrest on the basis that: 0 ii) iil) i) vy) vi) No sworn statement had been presented to the Magistrate in support of the application for the warrant of arrest; No record of proceedings relating to the Warrant, save a copy of the Warrant itself, exists at the Broadhurst Magistrate Court; “That it is clear from the wording of the application form that in motivation of the same, ACP Marage did not take an informant to the judicial officer for him to swear to the information before him; The application was therefore ostensibly made on the strength of information In ACP Marage's possession taken upon oath from which there are reasonable grounds of suspicion against the person sought to be arrested; that though stated in the application that there were reasonable grounds of suspicion against the Applicant that the alleged offence was committed, none was placed before the Magistrate; The Applicant has not been afforded prior notice of the application for the Warrant of Arrest, and that the Commissioner of Police could have reasonably known that he was not a flight20 risk as he was a Motswana with extensive family and business ties in Botswana vil) that the obtaining of the Warrant and manner of execution resulting in Applicant's arrest and detention were all motivated by bad faith, alternatively unreasonable. The Applicant alleges that his arrest and detention was accordingly without justifiable cause and consequently the arrest and detention were ‘wrongful and unlawful. In their opposition of the Applicant's application, the Respondents, through an affidavit deponed to by the Commissioner of Police, Mr Keabetswe Makgope, (the 3% Respondent) state that the Warrant of Arrest was lawful In that It was obtained in accordance with the law and was with just cause. The Respondents maintain that the arrest was justified and necessary there being reasonable suspicion against the Applicant that he committed the alleged offence of sedition. In his Answering Affidavit, the 3% Respondent states that the Sunday Standard Newspaper published an inaccurate story about His Excellency the President being involved in a car accident in the night and failed to report it to the police. When invited by the Commissioner of Police for a meeting on the 2 September 2014 on the matter, the Applicant failed to attend but instead sent his deputy and his lawyer. The Respondents submit that despite being asked by the Commissioner of Police 1624 22 on the one hand, and on the other hand by the Attorney General through her letter dated 2" September 2016, to retract the story as it contained false statements and or rumours likely to cause fear to the public or disturb the peace as well as criminal defamation, and that Applicant's actions may lead to him being charged with the offence of sedition, the Applicant fatled to retract the story. As a result, a warrant for his arrest was obtained. It is the Respondents position that even though the Applicant was apprehended on the 8° September 2014, the Warrant for his arrest was applied for and issued on the 2" September 2014 for a violation of Section 51 of the Penal Code. That the delay in executing the arrest was because the 3" Respondent could not locate the Applicant, and according to the Applicant's ‘own concession, he was out of the Country and only came back on the 4° September 2014. The Respondent further state that in terms of the rules there was no need to notify the Applicant of the application for the warrant. Order XXII 1. (4) of the Rules of the Magistrates’ Court provide that: “Except where otherwise provided in these rules, every application to the court for an order of arrest, interdict or attachment or for a mandament van spolie under section 18 of the Act, may be made ey parte, Rule 3. (1) states that “every order made ex parte (other than an order for the arrest of any person) shall call upon the respondent to show23 24 25 26 cause against it at a time stated in the order,...." (Underlining for emphasis). The suspicion which forms in the mind of the police officer must be based on grounds capable of explanation and can be said to be reasonable. See Aphiri v The Attorney General 1997 BLR 192. In the case of Aphini (supra), the court held that the onus rested on the defendant to justify the arrest and detention. This is so because an arrest Is considered prima facie such an odious Interference with the liberty of the Individual that animus injurlanal is presumed in law. See Sekobye v The Attorney General 2006 (1) BLR 270 ; Thompson and Another v Minister of Police and Another 1971 (1) SA 371. In casu, the Applicant's attorney argued that the Respondent have not advanced an alternative defence that the warrant was justified on the basis of section 28 (b) (1) of the CP&E, as such, as the warrant was solely based on section 37, whose requirements have not been satisfied and therefore invalid, the arrest and detention of Applicant was unlawful. The Applicant relies mainly on the case of Aphirl (Supra) in order to support his assertion that the warrant used to arrest him was unlawful in that the information placed before the judicial officer was not taken upon oath from which there are reasonable grounds of suspicion against the person sought to 1827 28 29 be arrested or to take the informant to the judicial officer for him to swear to the information before him. The case of Aphiri (supra) is distinguishable from this one in that the police officer in that case used a confession that was not made under oath to obtain a warrant of arrest. In that case, the deceased's father made a statement which was considered confessional in that he implicated himself, the plaintiff and other people in the murder of his daughter, and the statement he gave was not made and recorded before a judicial officer as required by law. In those circumstances, the judge held that it was wrong, when applying for @ warrant of arrest for one of the persons implicated in the confession, to misinform the judicial officer that the said application was based on a statement which had been obtained upon oath whereas it was not so. And the judge held that the arrest of the plaintiff based on such a warrant was wrongful. That notwithstanding, ruled that the arrest, based on the justification for the plaintiff's arrest under section 28 of the CP&E advanced by the police, was lawful. ‘The Applicant seeks to rely on the Aphir/s case in his challenge of the warrant of arrest by saying that it was not obtained on information taken upon oath, and that the Respondent did not plead the defence under section 28 of reasonable suspicion, therefore the warrant is unlawful. In my view, Section 37 (1) Includes providing verbal testimony given on oath before a judicial officer that reasonable suspicion exists. The Applicant 1930 appears to rely on written information taken upon oath as the only requirement of section 37. I differ with that interpretation. Information may appear in many forms, In casu, the police officer (ACP Marage) that made the warrant application could have provided information after taking an oath before the Magistrate, He may not have had in his possession @ sworn statement as alleged by the Applicant, but that does not necessarily conclude that there was no verbal testimony given on oath by the police officer to support his application. In the case of May v Union Government 1954 (3) SA 120 (NN), It wes inter alia stated: “It is not necessary for the Issuing of the warrant that all the facts necessary for a conviction be given under oath. Tt is only necessary that reasonable grounds appear from the affidavit. The official requesting the warrant is not limited to the information under cath - when the suspicion is formed. The information under oath must be assessed in the context of all the facts which have been determined, both those under oath and others. The official also does not have to accept all the information under oath as true: he or she can accept some allegations and not others, even doubt them all, he or she must have information under oath and, from that, in the correct context, form a reasonable suspicion.” 203L 32 The Court in May (supra) further said: ‘the bona fide exercise of a discretion by a magistrate or justice of the peace under this section cannot be assailed in a court. See Groenewald v Minister van Justisie 1973 (3) SA 877 (A) at 883 with reference to Shidiack v Union Government 1912 AD 642 at 651. Although Groenewald is not fully supported in Prinsloo v Newman 1975 (1) SA 481 (A) it is nevertheless confirmed (at 500B-505C) that the discretion the magistrate or justice of the peace has to exercise cannot, barring exceptional circumstances, be questioned in a court.” The case of the Minister of Safety and Security v Sekotho and Another 2011 (5) SA 367, contains a discussion on the role of peace officers and the discretion they hold in respect of an arrest which would, with respect, find equal application in determining the discretion of a Magistrate. “Harms DP (Nugent JA, Lewis JA, Bosiclo JA and K Pillay AJA concurring) ‘These principles are In substance no different from those formulated by Innes ACI in Shidiack (Supra). Now it Is settled law that where 2 matter Is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment Lona fide expressed, the Court will not interfere with the result...; and if he has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a Court of Law either to make him change his mind or to substitute its conclusion for his own, . . . There ate circumstances in which Interference would be possible and right if for Instance such an officer had acted ma/a fide or from ulterior and improper motives, if he had not applied33 his mind to the matter or exercised his discretion at all, — in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong,” ‘The Respondent, through their Answering Affidavit, repeatedly state that the arrest of the Applicant was justified and reasonable. Section 37 of the CP & E is express on arrests of persons on reasonable grounds of suspicion against the person, in fact I do not see any reason a person can be arrested without him being suspected of committing or about to commit a crime, Both sections 28 and 37 allow arrests of persons on reasonable suspicion of committing a crime. The effect of Section 37 provides for information or statements to have been taken under oath, but it does not expressly prohibit information or verbal testimony made on oath before a judicial officer issuing the warrant, In order that the judicial officer ascertains that he had reasonable suspicion without specifying the essentials of the offence. The Police officer in casu could have produced the newspaper article itself as his primary evidence required for the Issuance of the warrant. Put differently, the person appearing before the judicial officer (it may be the one making the application or a third party) may take an oath before the judicial officer on information that he possesses for the warrant to be issued, in this case the newspaper article. The warrant may be issued on the basis of what is being said or shown to the judicial officer at the time, upon taking an cath, that there is reasonable suspicion of a crime being committed.4 35 This is not the end of establishing the legality of the warrant of arrest issued by a judicial officer, The Applicant in his Founding Affidavit fails to substantiate his allegations with factual evidence of what transpired before the Magistrate save to make bare allegations as already enunciated in paragraph 15 of this judgment. He who alleges bears the onus of proof. There Is no confirmatory affidavit from either ACP Marage on how he made the application, nor is there a confirmatory affidavit from the Magistrate who issued the warrant as to what transpired before him. The Applicant in his evidence falls to set out any basis upon which it could be inferred that the Magistrate acted Ma/a fidesin issuing the warrant. This Court is being asked to declare the warrant unlawful on the basis of unsubstantiated allegations. The record of proceedings has not been availed to me to ascertain how the application was made and what the Magistrate considered when issuing the warrant. The Applicant states that his Attorney asked for the record from the court's registry and was told it was not there. There is no confirmatory affidavit to support this assertion. This Court is being indirectly asked to invoke a procedure of judicial review on the decision of the 3° Respondent and declare it unlawful in the absence of the record of proceedings as required by the High Court rules. I cannot look into the mind of the judicial officer in order to ascertain why or how she arrived at the decision that she took.36 Statute law is clear that no proceedings shall lie in respect of anything done or omitted to be done by a judicial officer. Section 11 of the Magistrate Courts Act provides that: “A Magistrate shall not be liable to be sued in any civil court or prosecuted for an offence in respect of any act done or ardered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, if he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of to be done, and an officer of any magistrate's court or other person bound to execute the lawful warrants or orders of any such magistrate shall not be liable to be sued in any civil court or prosecuted which he would be bound to execute if within the jurisdiction of the person issuing same.” 37 In the unreported case of George Kenyango v the Attorney General and Others CVHLB-000417-12, Dingake J was of the view that: “A reasoning that a further detention ordered by the Magistrate can still amount to unlawful detention, if the magistrate simply rubber- stampped the request of the prosecutor other than being conceptually incorrect and philosophically untenable, may clothe litigants with the right to sue for untawful detention, thereby opening the floodgates of litigation, in which the Attorney General may have to defend suits instituted on the basis that the Magistrate was clearly absent minded when he/she granted a particular order or simply rubber-stamped the request of the prosecutor.”38 39 This raises the question whether a magistrate can simply rubber stamp an ill informed request from a police officer without applying his/her mind to the circumstances of the metter to justify the arrest and detention. In the case of Attorney General v Konyango unreported case no.CACGB-069-13 (CA), the Court of Appeal, while acknowledging the discretion that the magistrate has in issuing further remands, went on to recognize in that case the detention was unlawful on account that the magistrate appeared to have done little than to rubber stamp the application from the prosecutor. In casu, it Is not clear whet transpired before the Magistrate without sufficient evidence, and for those reasons I concur with Dingake J when he sald in Konyango v Attorney General (supra) "..the rule of law requires that no adverse consequences should arise out of a court ordet, unless same was issued maliciously or in bad faith”, and in my view, I find that the Magistrate has exercised his judicial discretion in issuing the warrant of arrest. The Applicant has falled to discharge the onus resting upon him to show that the Issuing of the warrant by the Magistrate was wrongful, unlawful or mala fides. On the basis of the legal proposition, and in the absence of evidence of mala fides, I hold that the warrant was properly authorized and it is lawful, Whether in the circumstances same empowered the Police to detain the Applicant40 Section 5 (1) (e) of the Constitution of Botswana provides: "(L) No person shal be deprived of his personal liberty save as may be authorized by law in any of the following cases, that Is to say - 4). Doe hae od. ©) upon reasonable suspicion of his having committed, or being about fo commit, a criminal offence under the law in force in Botswana; 2. 41 The constitutional protection of personal liberty places the onus to prove that reasonable grounds existed at the time of arrest for suspecting that the person arrested had been Involved in the commission of the offence in question, on the Respondent. Section 39 (5) of the CP&E provides that: "A person arrested by virtues of a warrant under this Act shall, as soon 25 possible, be brought to a police station or charge office, unless any other place is specially mentioned in the warrant as the place to which such person shall be brought, and he shall thereafter be brought as soon as possible before a magistrate court upon a charge of the offence mentioned in the warrant.” 2642 8 According to the Respondents, Warrant of Arrests are sought for various reasons among them: to secure the attendance of an accused for trial; to prevent the accused from tampering with evidence; or for fear that the accused may abscond; and that according to the law, the warrants Issued are for the apprehension of persons described therein in order to bring them before a judicial officer upon a charge of an offence mentioned therein. Ibis evident from the section above that the person arrested is to be brought to the police station and thereafter, as soon as possible, be brought before & magistrate, There is no provision for release after arrest on this section, unless the person is granted ball. The person, following his arrest, will be kept in custody and brought before the court at the next available sitting. Our lave allows for a persons arrested to be detained for at least 48 hours without a warrant remanding him/her in custody. ‘There is no need for me to belabor this point with analysis, the law is clear and unambiguous with regard to arrests by warrants, Therefore, I find that the warrant of arrest empowered the Police to detain the Applicant, at least for a period of 48 hours. issue 2: Whether the Applicant's right to les representation as enshrined _under section 10 of the Constitution of Botswana was infringed45 46 47 The Applicant's main submissions in this regard are found in paragraphs 36- 43 of his founding affidavit. Applicant states that he was denied access to his attorney by the station commander of Broadhurst Police Station at the time when he needed to instruct his attorney and to depose to an affidavit for purposes of launching an urgent application challenging his arrest and detention on the night he was detained. It was argued for the Applicant that the police not only denied him his constitutional right of legal representation, but also his right to access the High Court. Mr Nchunga for the Respondents on the other hand argued that the key feature to the right to legal representation to the extent that it relates to the application before court is that it accrues to an accused once charged, any unreasonable delay is calculated not from when the accused is arrested but rather when he Is charged. In short, it was argued that the right to legal representation only comes into effect once charged with an offence, and in the present case, the Applicant was not charged nor arraigned, The Constitution of Botswana includes a right to legal representation at one’s expense. Section 10 (2) provides that: "Every person who is charged with a criminal offence-48 49 50 @) Shall be permitted to defend himself or herself before the court in person of, at his or her own expense, by a legal representative of fis or her own choice.” The Respondents contend that even then, the Applicants lawyers without a power of attorney immediately began the work of legal representation before the Applicant ever had the right to legal representation accrue to him legally, and the applicant did in fact end up consulting with his attorney within a matter of hours. While I accept that section 10 (2) (d) of the Constitution expressly state that every person charged with a criminal offence shall be permitted to defend himself in court by a legal representative of his choice, as demonstrated in @ large number of cases including the case of $ v Mpala 2008 2 BLR 26 where Kirby J (as he then was) held that it is clear that the right relates to legal representation In Court, I am afraid I do not, with all due respect, subscribe to that interpretation as I will demonstrate below. In interpreting the Constitution more particularly with regard to the fundamental rights, the Court must adopt a generous and purposive approach in order to breathe life into the Constitution having regard to its liberal democratic values and (where necessary) with the aid of international instruments and conventions on human rights to which Botswana has subscribed. See Molefi Silabo Ramantele v Edith Modipane Mmusi and 29St Others CACGB-104-12 in which Lesetedi JA adopted the case of Petrus and Another v The State 1984 BLR 14 (CA) where it referred to section 24 and 26 of the Interpretation Act. Section 24 (1) reads: (1) For the purpose of attaining that which an enactment wes made to correct and as an aid to the construction of the enactment a court may have regard to any textbook or other work of reference, to the report of any commission of inquiry into the state of the law, to any memorandum published by authority in reference to the enactment or to the Bil for the enactment, to any relevant international treaty, agreement or convention and to any papers laid before the National Assembly in referenc to the enactment or Its subject matter, but not to the debates in the Assembly. Section 26: Every enactment shall be deemed remedial and for the public good and shall receive such fair and liberal construction as will best attain its object accoraing to Its true intent and spirit.” Access to the justice system is a human right that the United Nations and the African Union have defined. Without access to justice through legal representation or assistance, there is no equality before the law. The United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth United52 53 Nations Congress on the prevention of Crime and the Treatment of Offenders, 1990 to which Botswana is a party, contains the following safeguards: 2) "Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than 48 hours from the time of arrest or detention; 4) all arrested, detained or imprisoned persons shall be provided with adequate gpportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception, or censorship and in full confidentiality.” The African Charter for Human and People's Rights, 1986 which Botswana is a party, provides for the right to defence including the right to be defended by counsel. In 1991, the Charter adopted Principles and Guidelines on the right to a fair trial and legal assistance in Africa that included that an accused person or party to @ civil case, has the right to an effective defence or representation, and has the right to choose his or her legal representative at all stages of the case. See " The Judicial Protection of Human Rights in Botswana” Edited by E Quansah and W Binchy 2009” Whilst the arguments on behalf of the Respondents may give rise to the inference that the Constitution of Botswana prohibits legal representation prior to a person being charged, in my view, though not expressly referred to, the right to legal representation is implicit.54 55 56 57 Section 10 (2) (c) of the Constitution of Botswana provides that "every person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence.” Tt was argued for the Applicant that in the case of Attorney General v Ahmed 2003 (1) BLR 158 (CA), the court had occasion to deal with the meaning of the word “facilities” used In the section quoted above. The learned judge in that case quoted with approval the case of R v Robert Bidwell (1991) 28 JLR 293 (CA) where Forte JA stated that "...facilties must relate to anything that will be required by the accused In order to ald him in getting his defence ready to answer the charge.” In State v Fly 2008 (3) BLR 258 where Masuku J stated that: "where an accused persons demand access to a lawyer upon arrest or even thereafter but he is, however, denied such access by the police, that refusal constitutes a breach of the provisions of section 10 (2) (c) of the Constitution of Botswana, By so refusing the access required, the accused person or suspect, as the case may be, Is being denied Yacilities’ within the meaning of the subsection.” In the case of Sejammitlwa v The State 2002 (2) BLR 78, the full bench of the Court of Appeal held that when a person is ‘charged! is not when he is 3258 59 first arraigned before a court: when that person is charged may occur on a date prior to the case coming before the court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. ‘Charge’ for the purposes of s 10(1) may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’. The case of Kanjabanga and Another v The State 2012 (1) BLR 416 (CA) which adopted the principle In Sefammitiwa (sunra), held that "an accused person was ‘charged’ either when he was brought before court for the first time or prior to that: on the date on which he was officially notified that he would be prosecuted or on the date on which the preliminary investigations were opened, It corresponded with the start of impairment of his liberty and security of person.” ‘The Respondents do not dispute that when Applicant sought to have access to his attorneys in order to sign court documents that access was not promptly provided, their defence being that the request was made outside visiting hours therefore the station commander needed to consult with his superiors first. This consultation took more than 4 hours before the Applicant could be allowed to see his lawyer at which point it was past midnight and by that time his initial efforts of launching an urgent application to the High Court for his release were thwarted as he could not have his affidavit commissioned since the lawyer who60 61 62 had been waiting to do so had long left. Applicant state that at that point he fnad no choice but to spend the night in jail and walt to launch his application the following day. ‘The Respondent's position |s that the delay In affording him access to his lawyer was insignificant, and that In any event, the Applicant was eventually afforded the opportunity to consult his lawyer therefore there was no denial of his right to legal representation, which, as a matter of law, was only available after the person is charged and in this case the applicant had not yet been charged. The issue in not whether the delay In affording the Applicant access to his lawyer was negligible or reasonable, but that was the applicant able to exercise his right to legal representation at the time when he asked for same, What is reasonable to Respondent may not be reasonable to the Applicant, In my view, the Applicant's plans to launch an urgent application 2 hours after being arrested were spoiled by the delay brought about by the Respondent without any reasonable justification for so doing. The earlier interventions by a junior officer of the 1% Respondent did not bear fruit, and only after a senior officia’s belated interventions were made that is when such access was given. There is no sufficient justification for this delay from the 3°° Respondent's affidavit, and arguments from Respondents counsel were not convincing. In my considered view, I am satisfied that this aspect of the Applicant's application should succeed. 3463 64 65 ‘Issue 3: Whether the provisions of Section 50 and 51 of the Penal ‘ode are ultra vires section 12 of the Constitution of B ana, It Is common cause that on the 31% August 2014 the Sunday Standard Newspaper, owned by the Applicant who Is also its Editor, published an article submitted by one of Its employees, a certain Mr Edgar Tsimane, headlined “president hit in a car accident while driving alone at night”. The same article was further published on the newspaper's website on the 1% September 2014. On 2% September 2014 wartant of arrest was issued for the apprehension of the Applicant who was subsequently arrested on 8 September 2014 and brought to the Broadhurst Police Station for questioning and investigation. His premises was searched by the police on 9" September 2014 and certain property selzed. The arrest and search were on account of an alleged infringement of Sections 50 (1) and S51 (1) (c) of the Penal Code. The warrant of arrest states that on the 31 August 2014 the Applicant. committed the crime of seditious intention contrary to section 50 (1) as read with section 51 (1) (0) of the Penal Code. In his Supplementary Affidavit, the Applicant aver that sections 50 and 51 of the Penal Code violate his rights entrenched in the Constitution of Botswana, in particular the rights to freedom of expression, and seeks the Court to declare 3566 such sections ultra vires the Constitution. In the alternative, for the Court to recommend amendments to the said sections. For purposes of appreciating the context of the Applicant's prayer, the Applicant was apprehended and detained, it being alleged that as a result of publishing an article alluded to above, he committed an offence contrary to s 50 (1) ARW section 51 (1) (c) of the Penal Code. It is important to pause at this juncture and mention that Counsel for the Applicant, Mr Bayford, vehemently argued in Court that the sald article was not the subject of the proceedings against the Respondents, and that its truthfulness or falsity, and authenticity were irrelevant in the determination of the issues before Court, but that the Court was to confine itself to the lawfulness or unlawfulness of the warrant of arrest, the right to legal representation, and to declare sections 50 and 51 unconstitutional. The Court however, did inform Counsel for the Applicant that by including the said article as part of his evidence in the Court record exposed it to the Court’s scrutiny more so that it formed an integral part of his prayer to declare s50 and s51 unconstitutional. However, I shall cautiously proceed on the basis requested and will confine myself to a consideration of the application only In so far as It relates to the constitutionality of section 50 and 51. But the court is free at any time, to scrutinize the article in so far as determining this part of the judgment is concerned.67 For Carty of presentation, T would wish to set down first the relevant statutory 68 69 provisions and later the relevant constitutional provisions. Statutory Provisions The crime of seditious intention is specified under section 51 of the Penal Code. Tt may attract a sentence of up to 3 years. When the act has been carried out by the media, the court may prohibit further publications of it. The central element of the offence is the seditious intention, Section 50 of the Penal Code defines what constitutes a seditious intention and reads as follows: ‘(1) A seditious intention is an intention- 2) 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 alteration, otherwise than by lawful means, of any other matter in Botswana as established by law; ©) to bring into hatred or contempt or to excite disaffection against the administration of justice in Botswana; d) to raise discontent or disaffection amonast the inhabitants of Botswana; or @) to promote feelings of ill-will and hostility between different classes of the population of Botswana,but an act, speech or publication is not seditious by reason only that it intends- 2) to show the President has been misled or mistaken in any of his measures; i) to point out errors or defects in the Government or the Constitution of Botswana as established by law or in legistation or in the administration of justice with a view to the remedying of such errors or defects; ii) to persuade the inhabitants of Botswana to attempt to procure by lawful means the alteration of any matter In Botswana as established by law; or fv) (to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Botswana. Q2) In determining whether the intention with which any ect was done, any words were spoken, or any document was published, was not seditious, every person shall be deemed to Intend the consequences which would naturally follow trom his conduct at the time and under the circumstances which he so conducted himself.” 70 — Section 51 (1) of the Penal Code provides”“Any person who- ) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with sealtious Intention; 2) utters any words with a seditious intention; ©) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; d) imports any seditious publication, unless he has no reason to believe that It is seditious, is guilty of an offence and is lable to imprisonment for a term not exceeding three years; and any seditious publication shall be forfeited to the State.” 71 The Penal Code recognizes a good faith defence of sedition as set out in the Act. The offences are not designed to capture speech, publications of persons acting in good faith when reporting on or criticizing the government or state. To commit an offence under the sedition provisions, an author or speaker must intend to do what is prohibited in the Act. Merely publishing or speaking or broadcasting material without intentionally urging force or violence or hatred is not an offence. 72 The Penal Code further sets out specific rules regarding the prosecution and adjudication of sedition offences. Section 52 provides that the prosecution should begin within 6 months after the offence was committed.73. The first question that arises is what Is sedition? The Oxford English Dictionary describes sedition as “conduct or speech inciting people to rebel against the authority of a state or monarch”. The Dictionary of English and Concise ‘Thesaurus gives the following alternative meaning of sedition: rabble- rousing, sub-version, troublemaking, provocation, rebellion, insurrection, muting, Insurgence and civil disorder. Whereas seditious intention means having a plan or alm of inciting or causing people to rebel against the authority of the state or monarch, Accordingly, the Penal Code expands on what constitutes seditious intentions as stated above. 74 In order to understand why sedition is described as such, it fs important to briefly narrate the history and evolution of this law. The sedition law originates from colonial-era way before Independence to censure dissenting voices of the local people against the colonial rulers, and basically demanding allegiance to government as opposed to the nation, When the Penal Code was promulgated in 1964, it included sedition laws, which Penal Code was adopted post~ independence, and the law still exists. 75 Tam not aware of any court case in Botswana where this law has been tested in terms of criminal convictions or its constitutionality, and both Counsel for the Applicant and Respondents informed this Court during their submissions that neither are they. Whereas in other jurisdictions where such law exists such as in India and Malaysia, political activists, students, journalists, satirists, comedians and photographers have been arrested, charged, some convicted of sedition in order to quell political dissent including those online. Other 4076 7 jurisdictions, such as the UK, Scotland, New Zealand and Australia have repealed sedition laws. Countries in Africa especially in the SADC region still have not done so, The Supreme Court of America has ruled numerous times that the sedition laws are unconstitutional, but still exist in their books. What effect does sections 50 and 51 of the Penal Code have on the constitutional rights of the Applicant as contained in the constitution of Botswana? Constitutional Provisions Botswana has a written constitution that guarantees fundamental rights and freedoms, including the right to freedom of expression. Freedom of expression plays an important role in a democracy and has been held in many high court and court of appeal cases that it should be jealously guarded, This however, does not mean that freedom of expression is an absolute right, its exercise must be reconciled with other equally important individual rights and the public interest. The Constitution thus, allows for restrictions on freedom of expression in order to protect these interests. Restrictions to the right must be In conformity with the Constitution. It is the Court’s role to ensure that restrictions of fundamental rights and freedoms guaranteed by the constitution are in conformity with the supreme law of the land. See Good v Attorney General 2005 (2) BLR 337. 4178 The appropriate starting point is Section 3 of the Constitution that accords every person in Botswana the protection of the law. It states that: “Every person in Botswana has the protection under the Constitution, whatever his or her race, place of origin, political opinions, colour, creed or sex, of his or her rights and freedoms of a) life, Iiberty, security of the person and protection of the law; b) freedom of conscience, expression, assembly and association; and ¢) privacy of his or her house and other property. the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such imitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.@ 79 — Section 12 of the Constitution of Botswana provides for the protection of freedom of expression and It reads as follows: "(L) Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of expression, that Is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without 2@ Interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his or her correspondence. Nothing contained or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision- @ o) oO That Is required in the interest of defence, public safety, public order, public morality or public health; that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational Institutions in the interests of persons receiving instruction therein, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless, broadcasting or television; or that imposes restrictions upon public officers, employees of local government bodles, or teachers, 4B80 81 82 and except so far as that provision or, 2s the case may be, the thing done under the authority thereof is shown not to be reasonably justifable in a democratic society.” Applicant's Submissions The Applicant's submission is that sections 50 and 51 of the Penal Code, in respect of which he was arrested, violate section 12 of the Constitution as they hinder his right to freedom of expression, and are therefore liable to be struck down. The Applicant argues that although both the Constitution and international human rights law permit certain restrictions on freedom of expression, these restrictions must meet a strict three-part test: they must be provided by law; be limited to specified purposes such as national security, public order or respect of the rights or reputation of others; and be necessary and proportionate to the achievement of one of those permissible purposes, Any restrictions imposed which do not meet all elements of this “three-part test” constitute violations of the right. The Applicant further contends that the restrictions on the right to freedom of expression imposed in the Penal Code are phrased in an excessively broad and vague manner, potentially resulting in both an overreach of the law and potential for abusive application of the law. In fact, exciting “disaffection against any Ruler or against any Government", in itself should not be 4483 criminalized at all. the Applicant also argues that the language used in section 50 is no longer appropriate in an independent Botswana with a constitution protecting all individuals fundamental rights In that the words used therein are vague, and the scope so broad that a person seeking to exercise his rights of freedom of expression and association has no guidance of how far he could legally go in expressing his unhappiness or criticizing the government or judiciary. The Applicant relies and quotes the Indonesian constitutional court's decision number 6/PUU-V/2007 at p11 where it declared offences relating to “feelings of hostility, hatred or contempt” unconstitutional on the grounds that they did not provide legal certainty and therefore disproportionately hindered the right to freedom of expression. The Court in that case held that the formulation of the offences in vague terms “may allow power abuse to occur because they may easily be interpreted according to the will of the authority”. Counsel for the Applicant argues that the onus is on the Applicant to show a prima facie case of violation of their constitutional rights. Thereafter the burden shifts to the Respondents to justify that the limitations to the rights in the statute is justified by the Constitution, See Lyomoki and Others v Attorney General 2005 (2) EA 127 (UGCC), and Rv Oakes 1986 (1) SCR 103 where the court held that “the onus of proving that a limit on a right or freedom guaranteed by the charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation”. 4584 & 86 The Applicant does however, concede that the section it seeks to be struck out lists some provisos when speeches or publications that would otherwise be seditious are permissible, but argues that these do not effectively protect the right of citizens to criticize the state actors. Respondents Submissions In his answering affidavit, the 3" Respondent states that the article published by the Applicant contained several untruths and according to evidence in his possession a collision took place on 24 August 2014 at about 0900h (not after dark), between two vehicles (a Toyota land cruiser and a ford ranger) not a black range rover and a jeep, on the Ai road at Dibete. That his Excellency the President was neither the driver of nor the passenger in either vehicle, the collision was reported to the Dibete police who attended at the scene, and that despite the true version of the story being put across, the Applicant was nwiling to retract his very inaccurate and false story, As a result he was arrested on allegations of seditious intent under section 50 and 51 of the Penal Code. The Respondent maintains in his affidavit that pedaling falsities against the person of the His Excellency the President and sedition are very serious offences that have the potential to lead to public unrest and disrupt public peace and tranqullity, and can never be treated lightly. The Respondent also contends that the provisions of section 50 and 51 are Constitutional in that they have not been adjudged by any court as being 4687 88 unconstitutional. Respondents maintain that newspapers ate duty bound to exercise their freedom of expression responsibly without destroying the characters of others by spreading fiction and untruths. Furthermore, that the freedom of expression is one that is reasonably qualified and in the public interest, ‘The Respondent continues to aver that the applicant seeks to have sections 50 and 51 declared unconstitutional but fails to set out in his affidavit why the charge of sedition is or should be so declared, and places no facts that allege he committed the offence in question. The respondent states that whilst the applicant denies committing the said offence that he wishes the court to struck out, the applicant however says the published material does not meet the criteria set out in sections 50 and 51. As such the respondent questions the applicant's basis for challenging the constitutionality of the aforementioned sections. Are Sections 50 and 51 of the Penal Code Unconstitutional? When a question arises as to whether a law is constitutional or not, after the content of the law has been ascertained, the court must first consider whether no proper construction which is consistent with the constitution can be given to that law, for each law is presumed to be consistent with the supreme law of the land unless otherwise shown. It is only when no such construction can be given that the law can be declared to be in violation of the constitution. See 47Court of Appeal case of Ramantele v Mmusi and Others, unreported, case no CACGB-104-12, 89 In Petrus and Another v The State 1984 BLR 14 (CA), the court stated that the Constitution of Botswana is the supreme law of the land and if any other law is inconsistent with this constitution that other law shall, to the extent of the inconsistency, be void. See also Kanane v The State 2003 (2) BLR 67 (CA) where Tebbutt JP said that the constitution "Ys meant to serve not only this generation but also generations yet unborn. It cannot be allowed to be a lifeless museum piece, the courts must continue to breathe life into it from time to time as the occasion may arise to ensure the healthy growth and development of the state through it.” 90 Petrus’ case (supra) was heavily relied on in Attorney General v Dow 1992 BLR 119 CA (full bench) that: “.. i construing the constitution @ broad and generous approach should be adopted in the interpretation of Its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the constitution, and where such rights or freedoms were conferred on persons by the constitution, derogations from such rights or freedoms should be narrowly or strictly construed,” 91 Lesetedi JA in Ramantele (Supra) echoing the words of Aguda JA in Petrus (supra) stated that “in interpreting the provisions of the constitution more particularly with regard to the fundamental rights the Court must adopt a 48generous and purposive approach in order to breathe life into the constitution having regard to its liberal democratic values and (where necessary) with the aid of international instruments and conventions on human rights to which Botswana has subscribed”, Section 24 and 26 of the Interpretation Act provide as follows: Section 24(1) ~ "for the purpose of ascertaining that which an enactment was made to correct and as an ald to the construction of the enactment a court may have regard to any textbook or other work of reference, to th report of any commission of inquiry into the state of the law, to any memorandum published by authority in reference to the enactment or to the Bill for the enactment, to any relevant international treaty, agreement or convention and to any papers laid before the National Assembly in reference to the enactment or to its subject matter, but not to the debates in the Assembly.” Section 26 ~ “Every enactment shall be deemed remedial and for the public good and shall receive such fair and liberal construction as wilt best attain its object according to its true intent and spirit.” The Position of International law 92 The right to freedom of expression is protected by various international instruments that bind member states including Botswana in particular: the Universal Declaration of Human Rights of 1948 (UDHR), Article 19; the International Covenant on Civil and Political Rights (ICCPR) adopted by the UN 49Gen Assembly 1966, and regional treaties such as the African Charter on Human and Peoples’ Rights all commit their subscribers to protect individual rights and freedoms including freedom of expression. The conferring of the Individual rights and freedoms is, across all international instruments, not guaranteed in absolute terms. These international provisions permit the right to be restricted as permitted by law and necessary for the respect of the rights and reputations of others and public interest, order and health. 93 The Applicant argues that section 3 of the Constitution (as quoted earlier on) is a compendium of all rights and freedoms, including the right to freedom of expression, and every person Is entitled to the stated rights and freedoms. Applicant acknowledges however, that those rights and freedoms are subject to “limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others”, or “the public interest”, Furthermore, the Applicant argues by citing Aguda JA in Petrus (supra) that: “judges must make the constitution grow and develop in order to meet the just demands and aspirations of an ever-developing society which Is part of a wider and larger human society governed by acceptable concepts of human dignity”. 94 The Applicant contends that the right to dignity is not a right In and of itself, but it should be used as a value when interpreting other rights and the justifiabillty of any limitations,95 The Respondent on the other hand, while acknowledging that the Constitution confers rights and freedoms to an individual, asserts that it does not purport to place the rights of the individual above the well-being and functioning of the State. Meaning, the rights conferred therein are not absolute, such enjoyment should not prejudice the rights of other individuals or the public interests. What is freedom of expression in this context? 96 For purposes of context, It is convenient to briefly set out what I believe constitute freedom of expression. I must however, first and foremost express the Court's indebtedness to Counsel for Applicant for his comprehensive verbal argument and helpful heads. of argument on freedom of expression, array of case law, articles and conventions referred to in the course of his arguments, and the same indebtedness is extended to Counsel for the Respondent. As much as there is great Importance attached to this aspect due to the nature of the case, I will not spend a lot of time analyzing Counsel's argument and references, They have been adequately taken note of, 97 Freedom of expression is a fundamental right, and has been acknowledged as such in domestic and international instruments even in case law in Botswana and other jurisdictions. In the Zimbabwe Constitutional Court case of Madanhire and Another v Attorney General, judgment no, CCZ 2/14 at page 7, the court held that: SL“there can be no doubt that the freedom of expression, coupled with the corollary right to recelve and impart information, Is a core value of any democratic society deserving of the utmost legal protection. As such, it is prominently recognized and entrenched in virtually every intemational and regional human rights instrument.” 98 The right to freedom of expression is enjoyed by every person in Botswana, 99 but its major players are the media (newspapers, magazines, television, radio), activists, politicians, and of recent online publications In social networks (facebook, twitter, etc). In the case of Khumalo and Others v Holomisa 2002 (8) BCLR 771 (CC) the court stated as follows: "the print, broadcast and electronic media have particular role in the protection of freedom of expression In our society. Every citizen has a right to freedom of the press and the media and the right to receive information and ideas. The Media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner In which the media carry out their constitutional mandate... The media foster it. In this sense they are both bearers of right and bearers of constitutional obligations in 52relation to freedom of expression. Furthermore, the media are Important agents in ensuring that goverment is open, responsive and accountable to the people as the founding values of our constitution require... in a democratic society, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas, which Is crucial to the development of a democratic culture... They have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate wil! have a significant impact on the development of our democratic society.” Having enunciated the role of the media, I now move on to analyse the right of freedom of expression vis-a-vis the rights of other persons. Balancing the applicant's right and that of others as provided by law 100 The right to freedom of expression contained in the Constitution is not absolute. Section 3 of the constitution entitles every person inter alia, to the protection of the law subject to such limitations of that protection as are laid down in Chapter 2 of the Constitution.101 102 103 The rights and freedoms are qualified as reasonably justified in a democratic society, and pursuant to all applicable laws and or the Constitution. It is these limitations that call for a delicate balancing exercise between competing rights and limitations. See the recent case of Collins Newman & Co and Others v Genuispoint Investments (Pty) Ltd and Others, unreported case no. UAHGB-000085-16 per Leburu J. The Applicant does not dispute publishing the article about the President being involved in an accident, and states at paragraph 14 of his replying affidavit that “It Is difficult to see how an allegation that the President was involved in an accident in which no fault is attributed to him can be perceived to be seditious, even if same tums out to be false”. The Applicant goes on at paragraph 15 of his replying affidavit that “the outrageousness, untruthfulness and defamatory or demeaning character of a story does not render it seditious within the meaning ascribed under section 50 of the Penal Code”. However, the Applicant disputes that the article violates section 51 of the Penal Code, does not quote any of the allowable defences under section 50 (1), but moves the court to strike out sections 50 and 51 for infringing his right to freedom of expression. The Respondent's contention is that the article published by the Applicant was seditious in that it violated section 50 (1) (a) which states that: "seditious intention is an intention-a) To bring into hatred or contempt or to excite disaffection against the person of the President or the Government of Botswane as established by law’; 104 Furthermore, itis the Respondent's case that sedition criminalises hate speech or hateful activity intentionally aimed at causing disharmony within the Republic of Botswana by attacking the government or a certain class or classes of people, and intention is key In the act of sedition. The Respondent further avers that the Applicant accessed the atticle on their systems, confirmed Its authenticty from the author and approved that it be published. Further that despite: a meeting called by the 3° Respondent putting across the true version of the story and requesting the Applicant to withdraw the article; and despite a letter from the 1° Respondent cautioning the Applicant of the seditious nature of the said article, the Applicant failed to withdraw the article. 105 As. such, the Respondent's contention is that the Applicant's actions, notwithstanding his right to freedom of expression, fall under the limitations provided for under section 12 (2) of the Constitution which provide that: “nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision ~ a) that Is reasonably required in the interests of defence, public safely, public order, public morality or public health; and that is reasonably required for thepurpose of protecting the reputations, rights and freedoms of other PEPSONE 0.” 106 Moreover, the Respondent avers that the Applicant failed to respect the rights 10 and freedoms of other individuals and in this instance the person of the President of the Country, Questioning the government and the sincerity of government policies if part of a healthy democratic Ife. However, the Respondent's challenge is the false attacks and hate speech on the personal and private life of His Excellency the President which are protected by the Constitution like any other person. Leburu J in the recent case of Collins Newman & Co (Supra), cited with approval the dictum in the case of Mid Television (Pty) Ltd v Director of Public Prosecutions 2007 (5) SA 540 (SCA), at p 545, where Nugent J hhad this to say: “In determining the extent to which the full exercise of one right or the other or both of them might need to be curtalted in order to reconcile them, what needs to be compared with one another are the extent of the limitation that is placed upon the particular right, on the one hand, and the "purpose importance and effect of the intrusion’, on the other hand, To the extent that anything needs to be weighed in making that evaluation, it is not the relative values of the rights themselves that are welahed (I have said that all protected rights have equal value) but it is rather 56the benefit that flows from allowing the intrusion that is welghed against the loss that the intrusion will ental, It Is only if i the particular loss is outweighed by the particular benefit... that the law will recognize the validity of the intrusion’. 108 Leburu J continues to deat with competing rights by citing the case of Publications Control Board v William Heinemann Ltd and Others 1965 (A) $A 137 at 160 where Rumpff stated as follows: Re “when a court of law 1s called upon to decide whether liberty should be repressed. In this case the freedom to publish a story - It should be anxious to steer a course as close to the preservation of liberty as possible. It shoud do so because freedom of speech is a hard won and precious asset, yet easily Jost. And in its approach to the law, including any statute by which the court may be bound, it should assume that Parliament, itsell, a product of politcal liberty, in every case intends liberty to be repressed only to such extent as it is in clear terms declares, and, it gives a discretion to a court of lav, only to such extent as is absolutely necessary.” 109 The burden of proof to justify the limitations lies with the Respondent, and accordingly, the Respondent avers that the Applicant's right to freedom of expression is qualified by section 12 (2) of the Constitution.110 Was the article published by the Applicant, which is not disputed and in Applicant’s his own words may have been false and defamatory of the President, meant to carry out his constitutional mandate as a professional Journalist of informing the nation, and creating a platform for the exchange of ideas crucial to the development of a democratic culture? Was such an article reasonably justifiable in a democratic society, moreso, was it justifiable in meeting the requirements of morality, public order, health, security and the Tight to other people's privacy? Was it justifiable as to qualify as allowable defences under section 50 (2) of the Penal Code. 111 The Applicant does not provide the court with sufficient evidence to enable me to conclude that the Penal Code sections complained about are inconsistent with the Constitution. It is common cause that the Applicant published the story in his newspaper, but he denies that it contravenes sections 50 and St of the Penal Code. He fails to plead the defences espoused In section 50 (2) of the Penal code, and also fails to satisfactorily plead in his affidavit that the article was reasonably justifiable under @ democratic society. He instead, denies that the article is seditious, and that even if it were false and defamatory, he still wants the sections declared unconstitutional. 1M The restrictions on the right to freedom of expression are not only recognized by the Constitution but also international law. Restrictions must be provided by law; pursue a legitimate aim; and be necessary and proportionate. Additionally, the ICCPR places limitations on freedom of expression and requires states to prohibit certain forms of speech, namely “any advocacy of national, racial or 58113 114 religious hatred that constitutes incitement to discrimination, hostility or violence.” Even though Article 20 paragraph 2 of the ICCPR does not prohibit all negative statements towards national groups, races and religions, but as soon as a statement advocates hatred in a way that it “constitutes incitement to discrimination, hostility or violence” it can be prohibited. The Respondent’s contention that the said story/article falls under the limitations mentioned under both section 3 and section 12 (2) is more compelling and convincing. Section 12 (2), it being a derogation provision, must be construed narrowly. The provision was designed very clearly to limit the right to freedom of expression so as to prevent abuse, chaos and Insolence which might trample on other persons’ rights and freedoms. And such limitations have been amplified by section 50 (2) which sets out what would amount to the derogations provided for in the Constitution. Aguda J in Petrus (supra) had this to say: "7 do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution 2s to defeat the obvious ends the Constitution was designed to serve’. It is my considered view that the article published by the Applicant and conceded to that it is false and defamatory of His Excellency the President, qualifies to be classified as falling under the limitations provided for under both section 12 (2) and section 3 of the Constitution and falls squarely under the limitations provided by sections 50 and 51 of the Penal Code.115 The Applicant had prayed that in the event the Court finds that sections 50 and 51 are Constitutional, in the alternative, the Court should make recommendations for the amendments or reforms of such sections so they conform to the progressive movements taking place in some jurisdictions. il a Despite that the sections may be considered by some as unconstitutional and repressive of the freedom of expression as enshrined In the Constitution, the sections are, in my view, legal limitations to the sald right so as to recognize and respect other persons rights and freedoms as well as to respect their dignity. What the Applicant seeks the Court to do is, on the converse, what he, and other interested groups should be doing to lobby the relevant arm of the government to consider what they deem to be necessary amendments to be effected on the Penal Code so as to decriminalize sedition and give effect to what the Applicant has described as progressive movements taking place all over the world, 117 In conclusion, It is my considered view that the Applicant's application must part fail and part succeed, and I make the following Orders: a) The warrant of arrest Issued against the Applicant by the 2"! Respondent on 2" September 2014 is valid and lawful; b) The Applicant was denied his right to legal representation by the 3° Respondent during his detention between 8-9 September 2014; 60©) Sections 50 and 51 of the Penal Code are not inconsistent with the Constitution of Botswana; d) Each party to bear its own costs of this application. DELIVERED IN OPEN COURT THIS 26"" DAY OF AUGUST 2016. Pk: ACTING JUDGE 6l