Sector 1: Freedom of expression, including freedom of the media, are effectively protected and promoted 1.1. Freedom of expression, including freedom of the media, is guaranteed in the constitution and protected by other pieces of legislation. ANALYSIS: Section 12 (1) of the Botswana Constitution states that “except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence.” It is therefore assumed that freedom of the media is also guaranteed by the constitution, in line with a High Court judgment that acknowledges that the freedom of expression clause in the constitution includes freedom of the media and that this is similar to Article 10 of the European Union Convention on Human Rights. But there are certain exceptions. The rights and freedoms are restricted, for example, in relation to national security, to protect the rights of other people, to protect the freedom of civil servants to perform their duties and where public order is threatened. There was no consensus whether the provision in the constitution guaranteeing freedom of expression is sufficient given all these exemptions. The majority was of the view that the exemptions are so broad that they do not pass the three part test which says that any restrictions on freedom of expression shall be provided for by law, serve a legitimate interest and be necessary in a democratic society. There was consensus that the constitution may have guarantees for freedom of expression but that the reality on the ground is different. This is the reason why some freedom of expression activists have called for the explicit guarantee of the freedom of the media in the constitution. There is a plethora of legislation which makes it difficult for the Botswana media to operate. These include the Directorate on Corruption and Economic Crime Act, which bars the director from giving information on any person who is being investigated. Other such restrictive laws are the Public Service Act and the National Security Act, which make accessing information by journalists very difficult, the Official Secrets Act and the Cinematography Act. MISA has been pressing for the latter to be scrapped but the government does not seem to be interested in doing so. Besides the fact that all these pieces of legislation could lead to the media in Botswana practising self-censorship for fear of being on the wrong side of the law, it was also felt that the situation is made worse by the many far-reaching powers given the Botswana’s President under the Constitution. These powers are more or less unlimited and extend to many aspects of Botswana’s public life. SCORES: Individual scores: Average score: So This Is Democracy? 2005 2, 3, 2, 4, 4, 2, 3, 2, 2, 2 2.6 -190- Media Institute of Southern Africa