TY - JOUR
AU - Balule, Badala Tachilisa
AB - Abstract Freedom of expression constitutes one of the cornerstones for a free and democratic society. The media play an important role in ensuring the full respect for freedom of expression by promoting free flow of information and ideas, thereby assisting people to make informed decisions in the democratic process. Diversity of media outlets and sources is therefore a critical component of the right to freedom of expression as it promotes the availability of a wide range of content. The right to freedom of expression thus imposes an obligation on a state to take positive measures to promote diversity and pluralism in the media. The Botswana Parliament has recently enacted the Communications Regulatory Authority Act 2012, which came into effect on 1 April 2013. The Act regulates telecommunications, broadcasting, and postal services. This article examines the provisions of the Act on broadcasting regulation to determine how they will affect diversity and pluralism in the sector. 1. Introduction It is now generally accepted that freedom of expression constitutes the foundation stone for every free and democratic society.1 The right to freedom of expression is of particular importance as far as the press and other media are concerned. The African Commission on Human and Peoples’ Rights (ACHPR) has observed that the media play a key role in a democracy by ensuring full respect for freedom of expression, promoting the free flow of information and ideas, assisting people to make informed decisions, and facilitating and strengthening democracy.2 Diversity of media outlets and sources is a critical component of the right to freedom of expression as it promotes availability of a wide range of content serving the needs and interests of different groups of people in society. In Africa, diversity in the media is of particular importance in the broadcast media because of their capacity to reach a wide audience and ability to overcome barriers of illiteracy.3 The enactment by the Botswana Parliament of the Broadcasting Act 19984 was a very welcome move as it not only brought an end to the government’s monopoly over broadcasting, which it had has enjoyed since independence in 1966, but also created a framework for the promotion of diversity and pluralism in the broadcast sector.5 The Broadcasting Act 1998 required that the allocation of the available spectrum be done in such a manner as to ensure the widest possible diversity of programming.6 In order to achieve that, the Act provided for a three-tier system of broadcasting licences, namely, community, private, and public broadcasters. The Broadcasting Act 1998 undoubtedly created a framework that had potential to promote diversity and pluralism in the broadcast sector in Botswana. However, with the repeal of the Act7 and the promulgation of the Communications Regulatory Authority Act 20128, it is contended that the latter law will have a negative impact on diversity in the sector. This article critically assesses the impact that the Communications Regulatory Authority Act 2012 will have on freedom of expression in the country. It examines how the law will affect diversity and pluralism in the broadcast sector, the licensing process of broadcasters, and the independence of the sector regulator. In discussing these issues, a comparison will be made between the new Act and the repealed Broadcasting Act 1998. 2. Protection of Freedom of Expression in Botswana In view of the fact that diversity of the media is an important component of the right to freedom of expression, it will be apposite to start with a discussion of the protection of freedom of expression in Botswana. Freedom of expression is expressly guaranteed in the Constitution in the following terms: Except with his own consent, no person shall be hindered in the enjoyment of his 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 interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.9 The Constitution does not expressly guarantee media freedom, but the High Court has held that this freedom is implicitly guaranteed as an aspect of freedom of expression.10 This decision is consistent with the theory that the guarantee of freedom of expression goes further than the theoretical recognition of the right to speak or to write. Freedom of expression also includes the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible.11 The courts in Botswana are yet to elaborate on exactly what the guarantee of freedom of expression in the Constitution entails. Guidance on the ambit of the guarantee of freedom of expression may thus be sought from international law. The Interpretation Act 1984 provides that as an aid to the construction of an enactment, a court may have regard to any relevant international treaty, agreement, or convention.12 The status of international treaties in the domestic law of Botswana is governed by the dualistic theory.13 In terms of this theory, international treaties have no automatic operation in the domestic law unless incorporated by an act of the legislature.14 Although Botswana follows the dualist theory regarding the status of international law in the domestic law, the Court of Appeal, its highest court, has held that courts must interpret domestic laws in a way compatible with the state’s responsibility not to be in breach of international law as laid down by law for creating treaties, conventions, agreements, and protocols within the United Nations (UN) and Organization of African Unity (OAU) [now African Union (AU)].15 Courts in the country therefore occasionally use international law, as contained in international treaties, including those that have not been incorporated into the domestic law, to resolve disputes that come before them. Botswana has ratified both the UN’s International Covenant on Civil and Political Rights16 (ICCPR) and the AU’s African Charter on Human and Peoples’ Rights (African Charter).17 The two treaties, however, have not been incorporated into the domestic law. Even though these instruments have not been incorporated into the domestic law, the jurisprudence that has been developed under the two can be used for guidance on what the guarantee of freedom of expression under the Constitution encompasses in terms of the Interpretation Act 1984.18 Both the UN’s Human Rights Committee (HRC) and the AU’s ACHPR, the bodies entrusted with the responsibility of interpreting the provisions of the respective treaties, have had opportunity to elaborate on the ambit of the guarantee of freedom of expression. The two bodies have opined that genuine effectiveness of freedom of expression does not only depend on a state’s duty not to interfere with the exercise of the right but that it may also require positive protection by the state. The HRC recognizes that free, uncensored, and unhindered media are essential to ensure freedom of expression and the enjoyment of other rights guaranteed in the Covenant.19 The Committee goes further to say that in order to protect the rights of media users to receive a wide range of information and ideas, states should take particular care to encourage independent and diverse media.20 The HRC thus makes it clear that the guarantee of freedom of expression imposes an obligation on a state to promote diversity and pluralism in the media. Similarly, the ACHPR has also held that the guarantee of freedom of expression under the African Charter imposes an obligation on a state to take positive measures to promote diversity. The Commission defines diversity to include the availability and promotion of a range of information and ideas to the public and pluralistic access to the media and other means of communication.21 The guarantee of freedom of expression in the Constitution of Botswana is similar to the guarantee of the freedom under both the ICCPR and African Charter. Since courts in the country are yet to pronounce on the scope of the protection of the right to freedom of expression under the Constitution, it is submitted that the jurisprudence developed by both the HRC and ACHPR will be highly persuasive in guiding the courts on the matter. In the light of the opinion of the Court of Appeal in the Dow case that courts must interpret domestic law in a manner compatible with international law, it is argued that the guarantee of freedom of expression under the Constitution of Botswana must be interpreted as also imposing an obligation on the state to take positive measures to promote diversity and pluralism in the media because the media make the exercise of freedom of expression a reality. The media serve not only to disseminate an individual’s ideas and thoughts but also allow the public access to the individual’s ideas and thoughts. The Constitution of Botswana does not guarantee an absolute right to freedom of expression, and by extension, media freedom. The exercise of the two freedoms is subject to section 12(2), which provides 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 safety, public order, public morality or public health; or (b) 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 (c) that imposes restrictions upon public officers, employees of local government bodies, or teachers, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society. The Constitution, under section 12(2), expressly permits regulation of the broadcast media for technical administration or operation. While the Constitution may appear to permit only the regulation of the broadcast media on technical grounds, in practice, it is accepted that such regulation may also be based on obligations deriving from international legal instruments.22 Both the ICCPR and ACHPR, as noted above, in guaranteeing the right to freedom of expression, impose obligations on state parties to promote diversity and pluralism in the media. It is contended that any regulation of the broadcast media must therefore be in accordance with the obligations imposed on states arising from the guarantee of freedom of expression under international law, which includes the obligation to promote diversity and pluralism in sector. Where regulation of the media restricts the enjoyment of the right to freedom of expression, the Constitution incorporates a three-part test in the determination of the legitimacy of the restrictions.23 Courts in Botswana have also not had opportunity to address the requirements of this test. Guidance on the test may, however, be sought from international comparative law. First, the restriction must be ‘done under the authority of any law’. The Supreme Court of Zimbabwe, when dealing with a similar provision, held that this phrase, although worded differently from such equivalent phrases as ‘provided by law’, ‘prescribed by law’, or ‘in terms of the law’, used in other constitutional and human rights instruments, carries substantially the same meaning.24 The Court held that, to satisfy this test, the law must be adequately accessible and formulated with sufficient precision to enable a person to regulate his/her conduct.25 To further satisfy this test, not only must a law that restricts media freedom be foreseeable, it must also be compatible with the rule of law. That is, if the law confers discretionary powers on the executive, adequate guidelines as to the exercise of the discretion must be provided and there should be mechanisms to control the exercise of the power.26 Second, a restriction must serve one or more of the legitimate purposes enumerated in subparagraphs (a), (b), and (c) above. Third, the restriction should be shown to be reasonably justifiable in a democratic society. What is reasonably justifiable in a democracy has been said to be an elusive concept that defies precise definition.27 The Zimbabwean Supreme Court has, however, opined that the reasonableness of a provision that restricts fundamental rights and freedoms should be judged on whether it arbitrarily or excessively invades the enjoyment of the right according to the standards of a society that has proper respect for the rights and freedoms of the individual.28 The court subsequently formulated a three-part inquiry in determining whether or not a limitation on fundamental rights and freedoms is permissible in the sense of it not being shown to be arbitrary or excessive.29 The court held that in determining the reasonableness of a limitation on fundamental rights and freedoms, the following questions must be answered: (i) whether the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) whether the measures designed to meet the legislative objective are rationally connected to it; and (iii) are the means used to impair the right or freedom no more than is necessary to accomplish the objective?30 In addressing the third question, a court will be called upon to engage in a balancing exercise. It must weigh the impact of the limitation upon the right of the individual against the importance of the legislative objective. The importance of the objective must be measured against the gravity of the infringement of the protected right. This will involve weighing the significance of the public interest in the restriction against the seriousness of the infringement of the private right protected by the Constitution.31 The discussion above outlines the protection of the freedoms of expression and media and the permissible restrictions thereon. It will be of assistance when discussing the provisions of the Communications Regulatory Authority Act 2012 relating to the regulation of the broadcast media on whether or not they comply with the Constitution. 3. Diversity and Pluralism Compromised in the Broadcast Media in Botswana The enactment of the Broadcasting Act 1998 was mainly a result of pressure on the government by civil society to liberalize the broadcast sector, which had hitherto been a state monopoly. The objectives of the Act were, among others, to provide for the establishment and functioning of a national broadcasting board and for the issuing of broadcasting licences. The passing of the Act was a culmination of an extensive consultation process between the government and civil society.32 The Broadcasting Act 1998 was far from being perfect for the effective regulation of the broadcast media, but it certainly laid down a foundation for the promotion of pluralism and diversity in the sector.33 When the government was proposing to enact the Communications Regulatory Authority Act 2012, it justified the new law on the basis that it will create a converged communications regulatory authority ‘to bring about efficiencies in the telecommunications sector by removing duplicate agencies and house their regulation and licensing under one roof’.34 The rationale for the new law, on the face of it, was innocuous given the worldwide trend towards merging telecommunications and broadcasting regulators due to the convergence of the two sectors. There was no hint at all that the new law would make major changes to the regulation of broadcasting. However, when the government published the Communications Regulatory Authority Bill, it was surprising to note that, not only did it merge the broadcast and telecommunications regulators, but it also made significant changes to the regulation of the broadcast sector. The following parts of this article critically examine the provisions of the Communications Regulatory Authority Act 2012 relating to the regulation of broadcasting to determine how the law affects diversity and pluralism in the sector. (a) From a Three-Tier to a Two-Tier System of Broadcasting Diversity in the media may be understood to mean many things, but in the context of this article, it refers to three aspects in the broadcast media: diversity of outlets, diversity of sources, and diversity of content.35 Diversity of outlets requires that space be allocated to users on different communication platforms to ensure that the general public is able to receive a diverse range of broadcasting services.36 In order to promote diversity of outlets, it is recommended that there should be at least three categories of broadcasting services: commercial; community, and public service.37 Although the programming format of these broadcasters is not mutually exclusive, their operating rationale is different. Thus, where all the three types of broadcasters are in operation, this will maximize the promotion of dissemination of a wide range of information and ideas catering for the informational needs of a diverse audience. The legal framework under the Broadcasting Act 1998 was conducive to the promotion of diversity of outlets as it provided for a three-tier system of broadcasting licences that were differentiated on the basis of ownership. The Act provided for community, public service, and private broadcasters. While the Broadcasting Act 1998 was favourable to the promotion of plurality of broadcast outlets, in practice, it failed to achieve that. At the time of the repeal of the Act in April 2013, only three private national radio stations, one private terrestrial television station, and two public radio stations had been granted licences under the Act. There was no single licence granted to a community broadcaster. The failure was mainly due to the government’s influence over the sector regulator. The government had taken a position that it would not favour community broadcasters as it feared these may promote tribalism.38 The Communications Regulatory Authority Act 2012 provides for only two types of broadcasters: commercial and state broadcasting.39 A commercial broadcaster is defined as a service operating for profit, while a state broadcaster is a government department designated as a provider of broadcasting services.40 This is a significant departure from both the framework under the repealed Broadcasting Act 1998 and emerging international norms and standards on diversity and pluralism in the broadcast media. The exclusion of community and public service broadcasting is regrettable considering the potential that these two have in contributing to the dissemination of a wide range of content catering to the needs of different audiences. Community media work for the development of different sectors of a territorial, ethno-linguistic, or other community nature.41 They strive to improve the quality of life of their communities and contribute to the well-being of their members by sharing a community’s interests, challenges, and concerns. The replacement of public service broadcasting with state broadcasting in the Communications Regulatory Authority Act 2012 not only violates international norms as reflected in the UN’s Human Rights Committee’s General Comment no. 34, it will also deprive citizens access to diverse programming that meets their informational needs. The programming of a public service broadcaster is driven by the public interest as it aims at serving the needs and interests of the public.42 A state broadcaster’s programming, on the other hand, is essentially driven by political interests and the government directly supervises it and has full control over its programming.43 In not providing for public service and community broadcasting, the broadcast regulatory framework under the Communications Regulatory Authority Act 2012 will negatively affect diversity of media outlets and sources and diversity of content. The failure to provide for public service and community broadcasting violates the guarantee of freedom of expression under section 12(1) of the Constitution. The Constitution imposes an obligation on the state to promote diversity and pluralism in the media so that the exercise of freedom of expression becomes a reality. Furthermore, in failing to recognize community media, the Act also limits the right to freedom of expression of a community as it denies it the opportunity to use whatever medium it deems appropriate to impart information and ideas. The limitation of the right to freedom of expression in regard to community media fails the three-part test in section 12(2) of the Constitution. It is contended that the limitation fails all the limbs of the test. The ACHPR has, in defining the phrase ‘within the law’, which is equivalent to ‘done under the authority of the law’ used in the Constitution of Botswana, held that this cannot be divorced from the general concept of the protection of human rights and freedoms.44 The Commission concluded that for a law to be said to be ‘within the law’, the domestic law must be in conformity with the African Charter or other international human rights instruments and practices.45 The legal framework provided by the Communications Regulatory Authority Act 2012, to the extent that it does not recognize community broadcasters, is clearly in violation of international norms and therefore cannot be said to be ‘done under the authority of any law’. International law imposes an obligation on states to promote the availability of a range of information and ideas to the public. The failure to provide for community and public service broadcasters in the Act therefore violates this obligation. The exclusion of community media from the legal framework cannot be said to be serving any legitimate interest. If the fear on the part of the Government of Botswana is that community media would promote tribalism, and therefore it could be argued that the restriction protects public safety or public order, it is contended that the restriction will still not pass the third limb of the test. A blanket ban on community media is, by no stretch of imagination, the least restrictive on the exercise of freedom of expression of community media. It would appear that the Government of Botswana is equating a community to a tribe. In actual fact, a community may be geographically founded or a community of a group of persons or sector of the public having an ascertainable common interest.46 A community broadcaster based on the latter does not come any near raising fears of tribalism. The failure by the Communications Regulatory Authority Act 2012 to recognize community broadcasters is therefore very broad and cannot be said to be reasonably justifiable in a democratic society. (b) Prevention of Monopolies The second facet of diversity, which relates to sources, demands that adequate measures be put in place to prevent monopolies in the media.47 The protection of freedom of expression under international law obligates states to prevent undue media dominance or concentration by privately controlled media groups in monopolistic situations that may be harmful to a diversity of sources and views.48 A law aimed at the prevention of monopolies in the media must address issues of ownership and cross-media ownership in the sector. The Broadcasting Act 1998 did not have any provisions on the prevention of monopolies, save for a general statement that the available spectrum was to be allocated in such a way as to ensure the widest possible diversity of programming.49 The Act did not elaborate on how this was to be achieved in so far as the prevention of monopolies in the media was concerned. The Communications Regulatory Authority Act 2012 also does not clearly address concentration of ownership of privately owned media. The Act only requires the regulator to monitor competition in the sector50 but does not give guidance on how this is to be done. Botswana has a Competition Authority whose mandate is to regulate competition in the economy, which includes the media sector.51 The Communications Regulatory Authority is required under the law to refer all issues relating to competition, which arise in the course of the discharge of its functions, to the Competition Authority.52 The critical question is whether the Competition Authority has competence in managing competition in the media sector. Competition law is generally a weak instrument to secure a multiplicity of autonomous players in the media because it is generally concerned with securing economic objectives and is not designed to deliver diversity and plurality.53 Competition law is concerned primarily with the operation of economic markets rather than with the distinctive wider needs of public policy in relation to the media, especially, the need to ensure diversity of views and opinions from autonomous outlets. It is desirable to subject the media to special ownership rules over and above competition law in order to address the special needs of the media sector, which general competition law often overlooks. The Council of Europe encourages its Member States to adopt rules aimed at limiting the influence that a single person or company may have in one or more media sectors in order to ensure a sufficient number of diverse media outlets.54 The recommended rules include introducing thresholds based on objective and realist criteria such as audience share, circulation, turnover/revenue, share capital, or voting rights. In South Africa, the law imposes limitations on ownership of private broadcasting licences based on the audience share in an effort to prevent the domination of the sector by a few players.55 The Electronic Communications Act 2005 prohibits any person from having control over two frequency modulation (FM) or amplitude modulation (AM) sound broadcasting service licences that have the same or substantially overlapping licence areas.56 The regulator may, however, exempt an applicant from the ownership limitations on good cause shown.57 The regulator has held that the test applied in considering applications for exemptions from ownership limitations is a two-pronged one. First, the regulator must be satisfied that an applicant has shown good cause for departing from the limitations imposed by the section, and secondly, that such departure would not amount to a negation of the objects and principles of the Act which, among others, includes the promotion of diversity and pluralism in the broadcast media.58 The Communications Regulatory Authority Act 2012 also fails to address the question of cross-media ownership in the print and broadcast media. This lacuna may lead to the emergence of monopolies dominating both the broadcast and print media, which will be a violation of freedom of expression. Concentration of ownership in the media arguably leads to uniformity of content, which is undesirable in democratic societies that value freedom of expression. In South Africa, cross-media control between the broadcast and print media is controlled to avoid domination of both sectors by a few players. Limitations on cross-media control are determined by parliament on the recommendation of the regulator.59 Under the current regulations, no person who controls a newspaper may acquire or retain financial control in both radio and television licensees.60 (c) Diversity of Content The guarantee of freedom of expression imposes an obligation on the state to take steps to promote diversity of media content.61 Programming by broadcasters should provide diverse views, opinions, and perceptions to the public they serve. There are various measures that a state may put in place to promote diversity of content. These measures include, among others, strong support for both public service and community broadcasters, imposing content obligations on broadcasters, and requirements that programming of a broadcaster must contain independent productions.62 South Africa is one of the countries that have adopted a combination of these measures in order to promote diversity of content in the broadcast sector. It has a three-tier system of broadcasters that include commercial, community, and public service and the programming provided by each of these broadcasters is required to be varied and comprehensive, disseminating a balance of information, education, and entertainment meeting the needs of the entire population.63 In addition to this, specific content obligations are imposed on each of the three categories of broadcasters to promote pluralism in their programming.64 While the Broadcasting Act 1998 had a three-tier system of broadcasters, it did not impose specific content obligations aimed at promoting diversity of content on any of the broadcasters. Content obligations for public service broadcasters were, however, subsequently addressed in the Broadcasting Regulations 2004,65 which were made under the Act. The Communications Regulatory Authority Act 2012 fares no better than its predecessor on the issue of promotion of diversity of content. In fact, the new law is worse than the repealed Act. The exclusion of community and public service broadcasters will deprive the public of the opportunities that these two broadcasters offer in the dissemination of a diverse range of information and ideas. The Act does not impose any content obligations on commercial and state broadcasters. The law allows the regulator to impose such conditions and restrictions on a licence as it may deem necessary while issuing a broadcasting licence.66 It is submitted that this provision could be used to impose content obligations on commercial broadcasters. Unfortunately, the provision cannot be used in the case of state broadcasters because these are exempted from requiring a licence to operate.67 Since state broadcasters are exempted from requiring a licence to operate and because the Act does not impose any content obligations on these broadcasters, it means that their programming will be exclusively determined by the government of the day. It must be borne in mind that the programming of state broadcasters is primarily driven by political interests and there is therefore the ever-present danger that such media can be simply used as government mouthpieces serving only the needs of the government. If used in this manner, diversity and pluralism of content serving the public interest will be seriously compromised. The framework provided for by the Communications Regulatory Authority Act 2012 does not comply with international best practice for broadcasting regulation aimed at achieving diversity of content. The failure of the law to create an environment that would promote diversity of content amounts to a violation of the right to freedom of expression as guaranteed under both the Constitution and international law. 4. Licensing Procedures The promotion of diversity and pluralism, especially diversity of independent outlets, requires the licensing procedures both for new entrants and for renewal of licences to be fair and transparent. Emerging international best practice for broadcasting regulation demands that a fair and transparent licensing regime for broadcasting should have the following key attributes:68 a) The basic conditions and criteria governing the granting and renewal of broadcasting licences should be clearly defined in law; b) The regulations governing the broadcasting licensing procedure should be clear and precise and should be applied in an open, transparent, and impartial manner; c) When frequencies become available for broadcasting, the regulatory authority should call for tenders from the public. The tender should define, among others, the type of service, minimum duration of programmes, geographical coverage, type of funding, and licensing fees; and d) The decisions made by the regulatory authority must be subject to publicity and should provide sufficient guarantees against arbitrariness, including proper reasoning by the authority of its decision in the case of denial of a licence.69 The Communications Regulatory Authority Act 2012 provides that an application for a broadcasting licence shall be made to the regulator in the prescribed manner.70 The law does not spell out the basic conditions and criteria governing an application for broadcasting licences. It would appear that the conditions and criteria for application of licences will be addressed in the regulations that will be made by a government minister. The Act gives the minister powers to make regulations prescribing anything under the Act that is to be prescribed for the better carrying out of the objects and purposes of the law.71 The failure to address the basic conditions and criteria for an application for a broadcasting licence in the Communications Regulatory Authority Act 2012 is a significant departure from the regulatory framework under the Broadcasting Act 1998. The latter stipulated the requirements that an applicant had to satisfy in an application for a licence.72 It is submitted that it is desirable for the main Act to spell out in broad terms the general guiding principles on the conditions and criteria for application for licences, so that regulations, which will be more detailed, are guided by the general principles. The Communications Regulatory Authority Act 2012 requires that, in considering applications for broadcasting licences, the regulator must make its decisions in an ‘open, transparent, accountable, proportionate, and objective manner and not to show undue preference to any person or organization’.73 This is an important provision aimed at guarding against arbitrariness in the consideration of licences by the regulator. It is, however, submitted that the provision would have significant impact in practice if the Act expressly provided the criteria for the granting of licences that would be used as a benchmark in assessing decisions of the regulator. The Act thus fails to set out a fair and transparent licensing regime as required of a broadcasting regulatory framework aimed at promoting diversity and pluralism on democratic grounds. 5. Regulatory Authority Broadcasting frequencies are a limited resource, which calls for the available spectrum to be distributed in a rational and fair manner to ensure equitable access and to avoid interferences in the operation of the services. This means that the sector must be regulated to achieve these objectives. In addition, the broadcast media also need to be regulated in order to promote diversity and pluralism so that the sector contributes to the promotion of freedom of expression on democratic grounds. The critical question is who should regulate the sector? International norms and standards require that the sector should be regulated by an independent authority that is protected against interference of both a political and an economic nature.74 A number of principles on how to guarantee the independence of broadcasting sector regulatory authorities are emerging, which include that:75 The independence of the regulator must be expressly guaranteed in the law establishing it; The policy objectives underpinning broadcast regulation must be set out in legislation establishing the regulator; The process of appointing members of the regulatory body must be open and democratic to minimize the risk of political or commercial interference; Members of the regulatory body must be guaranteed security of tenure; The regulator must be accountability to a multiparty body such as the legislature or a committee thereof; and The regulator must be adequately funded to enable it to carry out its mandate and at the same time ensure that the funding process does not influence decision-making by the body. The Communications Regulatory Authority Act 2012 establishes a Communications Regulatory Authority (CRA), whose main mandate is to ensure the effective regulation of the telecommunications, broadcasting, and postal services sectors.76 The Act does not guarantee the independence of the CRA. The omission is a serious indictment on the independence of the regulator. It is argued that Parliament did not intend the CRA to be an independent body. This is because, in establishing the Media Council that regulates the print media, the same Parliament expressly provided for the independence of the Council from government, any political party, or any other body.77 Further support for the view that the CRA is not an independent body is the fact that the law establishing it requires that prior to the issuance of any broadcasting licence, the regulator must first notify the minister.78 This requirement suggests that the issuance of broadcasting licences must first have the approval of the minister, which means the regulator does not have exclusive jurisdiction on licensing matters. The minister is further given the power to rescind a decision of the CRA, which in the minister’s opinion, may adversely affect the security of the country or relations with a foreign government.79 These are very wide discretionary powers given to the minister, which may be easily abused to frustrate the CRA in the performance of its mandate. The CRA can therefore not be said to be an independent regulator from the government, a clear violation of international norms and standards that govern such entities. The CRA is composed of seven members who are appointed by a government minister.80 The Act does not prescribe any procedure that must be followed in the appointment of the members of the regulator in order to ensure that the process is open and democratic. The position is a major deviation from the procedure that was used for the appointment of members of the National Broadcasting Board (NBB) under the Broadcasting Act 1998. The non-ex officio members of the NBB were appointed by a government minister from a list presented to the minister by a Nominating Committee.81 The Nominating Committee comprised a member of the Law Society of Botswana, the Vice Chancellor of the University of Botswana or his/her nominee, and a representative of the Office of the President.82 The Committee was required to nominate ten candidates and submit the list to the minister for appointment, who had to appoint seven members from the list. The Committee was required to invite candidates through adverts in local newspapers and to interview applicants for nomination. The process was to be conducted in accordance with the principles of transparency and openness. There was an element of transparency in the appointment of members of the NBB, which is lacking in the appointment procedure for members of the CRA. Where a government minister is given absolute discretion in the appointment of members of a board, there is a danger that appointments may be politically motivated and not based on merit. Consequently, the independence of a body from the appointing authority may be seriously compromised as members may display allegiance to the appointing authority in the exercise of their functions. Members of the CRA hold office for a period not exceeding three years and are eligible at the expiry of their first term for reappointment for one further term.83 Once appointed, members enjoy security of tenure and can only be removed from office by the appointing authority on grounds set out in the Act. The grounds upon which a member of the CRA may be removed from office broadly include bankruptcy, conflict of interest—real or perceived, conviction of a criminal offence, and appointment to a political office.84 The law establishing a regulator must clearly set out the policy objectives underpinning the regulation of the sector as this will assist in enhancing its independence in the performance of its functions. The importance of diversity and pluralism in the media as a means of fostering freedom of expression demands that broadcasting regulators should be mandated to promote these values, and this must be clearly stated in the law. In South Africa, for example, the communications regulator is required by law to, among others, ensure that broadcasting services, viewed collectively, promote the provision and development of a diverse range of sound and television broadcasting services that cater to the needs of diverse audiences.85 The Communications Regulatory Authority Act 2012 does not clearly address the policy objectives underpinning broadcast regulation in Botswana. The Act generally provides that the CRA must promote the interests of consumers in respect of the availability, quality, and services, but it does not elaborate on how this is to be achieved in the broadcast sector.86 The law therefore fails to set out clearly the policy objectives underpinning broadcast regulation. Accountability of a regulator is critical for its independence as it ensures that it is both answerable for its actions or omissions and is insulated from improper political or industry influence in its decision-making. The CRA is accountable to a government minister through submission of annual reports that cover its operations, and these reports are available to members of the public upon payment of a prescribed fee.87 In addition, the CRA is obliged to make its decisions in an open, transparent, and accountable manner.88 These obligations ensure that the CRA is accountable to the public for its activities. It is, however, objectionable that the CRA is made accountable to a government minister and not to a multiparty body. It would have been ideal to have the CRA account to Parliament as it does for financial accountability, where it is required to submit its annual audited reports to the National Assembly.89 The CRA is funded from different sources, which include fees levied in respect of licensing, annual fees paid by regulated suppliers, and loans granted by Parliament.90 The funding arrangement for the CRA is sufficiently open and transparent and would arguably insulate it from threats from the executive to use budget cuts to undermine it in the performance of its mandate. The funding model of the Authority is also commendable as it should be able to allow the Authority to raise enough funds to enable it to carry out its functions without undue pressure from both the executive and industry. 6. Conclusions Botswana is often praised for being one of the few exemplary functioning democracies in the African continent. Democracy must be institutionalized and consolidated through promotion of universal values and principles as reflected in international norms and standards. Freedom of expression is one of those values that are considered to be a foundation stone for every free and democratic society. The HRC has said that state parties must ensure that the rights contained in Article 19 of the ICCPR (which include freedom of expression) are given effect to in domestic law.91 The HRC has further said that freedom of expression imposes an obligation on a state to promote diversity and pluralism in the media as the media make the enjoyment of freedom of expression a reality. The Constitution of Botswana also guarantees the right to freedom of expression in terms similar to those in the guarantee of the right under the ICCPR. One would therefore expect that any law enacted by Botswana in the area of media regulation would be consistent with international norms and standards on freedom of expression. This article has demonstrated that the regulatory framework for the broadcast media provided for under the Communications Regulatory Act 2012 falls far below the international norms and standards expected in democratic societies. The law fails to provide a framework that would promote diversity of outlets as it only sanctions commercial and state broadcasters. The exclusion of public service and community broadcasters is a big blow to freedom of expression given the important role that these two play in the provision of public interest programming that addresses the public’s information needs. The regulatory framework also fails to put in place adequate measures that would prevent the emergence of monopolies in commercial broadcasting. The law is also defective in that it fails to lay down a fair and transparent licensing regime that could contribute to the promotion of diversity and pluralism in the broadcast sector. The regulatory authority established under the Act is not sufficiently independent to effectively regulate the broadcast media in the pursuit of diversity and pluralism in the sector. The regulatory framework for the broadcast media provided for under the Communications Regulatory Act 2012 is wanting in many respects in so far as the issue of diversity and pluralism in the media is concerned. The shortcomings in the law amount to a violation of the right to freedom of expression under both international law and the country’s constitution and hence its legality is questionable. 1 See United Nations Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression, CCPR/C/GC/34 (adopted at 102nd session, Geneva, 11–29 July 2011) para. 2. 2 African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression in Africa (adopted by the African Commission on Human and Peoples’ Rights, meeting held at its 32nd Ordinary Session, in Banjul, The Gambia, from 17–23 October 2002), Preamble. 3 Ibid. 4 [Chapter 72:04] Laws of Botswana. 5 See T Balule ‘Bipartisan Effort Pays off in Botswana’ [1999] 4(1) Southern African Media Law Briefing 8. 6 Broadcasting Act 1998, section 10 (10 (c)). 7 The Broadcasting Act, 1998, has been repealed by the Broadcasting (Repeal) Act 2011. 8 Act no. 19 of 2012. 9 Section 12(1) Constitution of Botswana, [Chapter 1]. 10 Media Publishing (Pty) Ltd v. The Attorney General and others [2001] 2 BLR 485 at 494. 11 See Inter-American Court of Human Rights, Advisory Opinion OC-5/85 of November 13, 1985, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts 13 and 29 American Convention on Human Rights) at para. 13. 12 Section 24, Interpretation Act, 1984 [Chapter 01:04]. 13 See O Tshosa, ‘Giving Effect to Treaties in the Domestic Law of Botswana: Modern Judicial Practice’ [1997] 10 Les LJ 205. 14 Dow v. Attorney General of Botswana [1992] LRC (Const.) 623 at 654. 15 Ibid, Per JA Aguda at 674. 16 Adopted by the UN General Assembly on 16 December 1966 and entered into force on 23 March 1973. Botswana ratified the treaty on 8 September 2000. 17 Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM. 58 [1982], entered into force 21 October 1986. Botswana ratified the ACHPR on 17 July 1986. 18 The ICCPR and ACHPR both guarantee freedom of expression in Articles 19(2) and 9(2), respectively. 19 General Comment No. 34 para. 13, above n 1. 20 Ibid, para. 14. 21 Principle III, Declaration of Principles on Freedom of Expression in Africa, above n 2. 22 See Informationsverein Lentia and others v. Austria [1993] 17 EHRR 93. 23 Section 12(2). 24 Chavunduka & another v. Minister of Home Affairs [2000] 4 SA 1. 25 Ibid at 12. 26 See The Law Society of Zimbabwe v. The Minister of Transport and Communications [2004] AHRLR 292 at 298 (ZwSC 2004). 27 See Woods v. Minister of Justice, Legal and Parliamentary Affairs [1995] 1 SA 703 at 706. 28 Ibid. 29 Nyambirai v. National Social Security Authority and another [1996] (1) SA 636. 30 Ibid, at 647–8. 31 Ibid, at 648. 32 T Balule, ‘Bipartisan Effort Pays off in Botswana’, above n 5. 33 For a detailed analysis of the limitations of the Act, see J Limpitlaw, Media Law Handbook for Southern Africa (Johannesburg: Konrad-Adenauer-Stiftung, 2012) at p. 119. 34 Frank Ramsden, then Minister of Transport and Communications’ Keynote address at the 2nd National ICT Stakeholders Consultative Forum held in Gaborone on 1 September 2011, available at http://www.gov.bw (accessed 4 April 2013). 35 T Mendel & E Salomon, Freedom of Expression and Broadcasting Regulation (Rio de Janeiro: UNESCO, 2011) at p.16. 36 See United Nations Special Rapporteur on Freedom of Opinion and Expression, Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the Organization of American States Special Rapporteur on Freedom of Expression and African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information, International Mechanisms for Promoting Freedom of Expression: Joint Declaration on Diversity in Broadcasting (adopted 7–8 November 2007, Amsterdam, The Netherlands). 37 Ibid. See also Media Development Indicators: A Framework for Assessing Media Development, endorsed by the Intergovernmental Council of the International Programme for the Development of Communication (IPDC) at its 26th session (26–28 March 2008), indicator 2.3. 38 See ‘Government Shelves Community Radio Idea’, Daily News, 28 July 2008, available at www.olddailynews.gov.bw (visited 24 April 2013). 39 Section 2, Communications Regulatory Authority Act 2012. 40 Ibid. 41 See Report of the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 20 April 2010, A/HRC/14/23, para. 68. 42 T Mendel, Public Service Broadcasting: A Comparative Legal Survey (Paris: UNESCO, 2011) at p. 3. 43 United Nations Development Programme Bureau for Development Policy, Supporting Public Service Broadcasting: Learning from Bosnia and Herzegovina’s Experience (Oslo: UNDP, 2004) at p. 8. 44 Communication 297/2005: Scanlen & Holderness/Zimbabwe, adopted during the 6th Extra-Ordinary Session of the ACHPR, Banjul, The Gambia, April 2009, at para. 112. 45 Ibid, para. 115. 46 See section 2, South Africa’s Electronic Communications Act 2005, no. 36 of 2005. 47 Joint Declaration on Diversity in Broadcasting, above n 36. 48 United Nations Human Rights Committee, General Comment No. 34, above n 1, at para. 40. 49 See section 10(1)(c). 50 Communications Regulatory Authority Act 2012, section 6(2)(c). 51 The Competition Authority is established under the Competition Act 2009, no. 17, of 2009. 52 Section 89, Communications Regulatory Authority Act 2012. 53 See Department of National Heritage, Media Ownership and Control: The Governments Proposals, Cm 2872 [1995] paras 1.4 & 5.8, and Department for Culture, Media and Sport, Consultation on Media Ownership Rules [2001] para. 1.10. 54 Council of Europe Committee of Ministers, Recommendation CM/Rec (2007) 2 of the Committee of Ministers to Member States on media pluralism and diversity of media content (adopted by the Committee of Ministers on 31 January 2007 at the 985th meeting of the Ministers’ Deputies) para. 2.1. 55 Electronic Communications Act 2005, above n 46, at section 65. 56 Section 65(2). 57 Section 65(6). 58 East Coast Radio (Pty) Ltd, Jacaranda FM (Pty) Ltd, and Radio Oranje (Pty) Ltd: Application for Amendment of Shareholding Structure, 25th January 2002, at para. 26, available at: http://www.icasa.org.za (visited 24 April 2013). 59 Electronic Communications Act 2005, section 66(1). 60 Ibid, section 66(2). 61 Joint Declaration on Diversity in Broadcasting, above n 36. 62 T Mendel & E Salomon, Freedom of Expression and Broadcasting Regulation, above n 35, p. 16. 63 See section 3(5)(a) & (d), Broadcasting Act 1999, No. 4 of 1999. 64 Ibid. See sections 10, 30, & 32 for content obligations of public service, commercial, and community broadcasters, respectively. 65 Statutory Instrument No. 97 of 2004, Regulation 33 (2). 66 Communications Regulatory Authority Act 2012, section 32(2). 67 Ibid, section 31(2). 68 See Council of Europe Committee of Ministers, Recommendation Rec (2000) 23 of the Committee of Ministers to Member States on the independence and functions of regulatory authorities for the broadcasting sector (adopted by the Committee of Ministers on 20 December 2000 at the 735th meeting of the Ministers’ Deputies) Part IV. 69 See Case of Maltex Ltd and Mesrop Movsesyan v. Armenia, European Court of Human Rights (Third Section) Application no. 32283/04 (unreported), delivered on 27 May 2008, at para. 81. 70 Section 6(2)(h). 71 Section 94(1). 72 Section 12(2), Broadcasting Act 1998. 73 Communications Regulatory Authority Act 2012, section 6(2)(w). 74 See General Comment No. 34: Article 19: Freedoms of opinion and expression, above n 2, para. 39; Principle VII, Declaration of Principles on freedom of Expression in Africa, above n 2; and Recommendation Rec (2000) 23 of the Committee of Ministers to Member States on the independence and functions of regulatory authorities for the broadcasting sector, above n 68. 75 Ibid. 76 Communications Regulatory Authority Act 2012, sections 3 and 5(1)(a). 77 See Media Practitioners Act 2008, no. 29 of 2008, section 4. 78 Communications Regulatory Authority Act 2012, section 6(2)(h). 79 Ibid, section 91. 80 Ibid, section 4(1). 81 Broadcasting Act 1998, section 5(e). 82 Ibid, section 5. 83 Communications Regulatory Authority Act 2012, section 9. 84 Ibid, section 10. 85 Electronic Communications Act 2005, section 2(5). 86 Communications Regulatory Authority Act 2012, section 6(2)(c). 87 Ibid, section 28. 88 Ibid, section 6(2)(w). 89 Ibid, section 27. 90 Ibid, section 24. 91 See General comment No. 32, para. 8, above n 1. © The Author 2013. 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TI - Diversity and Pluralism Compromised: From the Botswana Broadcasting Act 1998 to the Communications Regulatory Authority Act 2012
JF - Statute Law Review
DO - 10.1093/slr/hmt010
DA - 2013-10-01
UR - https://www.deepdyve.com/lp/oxford-university-press/diversity-and-pluralism-compromised-from-the-botswana-broadcasting-act-hgFSmXsL2t
SP - 189
EP - 206
VL - 34
IS - 3
DP - DeepDyve
ER -