MISA has written to the President of Botswana regarding the Criminal Procedure and Evidence Bill which is currently before the Botswana parliament. Below is the full letter;
2 February 2022
President Mokgweetsi Masisi
℅ The Botswana Embassy
22 Phillips Avenue
Re: Concern over the Criminal Procedure and Evidence (Controlled Investigation) Bill
The Media Institute of Southern Africa (MISA Regional) in its capacity as a media freedom, freedom of expression and access to information organisation, hereby writes this letter to you, Your Excellency, to express our profound concern over the Criminal Procedure and Evidence (Controlled Investigation) Bill, which is presently before the Botswana parliament.
The Bill has serious ramifications on the enjoyment of the afore-mentioned rights and the potential of denting Botswana’s otherwise favourable global rankings in view of its respect for fundamental human rights.
According to the Reporters Without Borders (RSF) rankings on media freedom, Botswana moved upwards from position 39 in 2020 to 38 in 2021.
If enacted, the Bill will give the government power to intercept communications of journalists and other citizens; force journalists and other citizens to disclose information; and allow the government to spy on citizens, among other issues.
Your Excellency, we are particularly worried about the speed with which the government is moving to enact this law. The Bill is being debated under the certificate of urgency rule, which means that it will be fast-tracked through parliament and not get sufficient due scrutiny and interrogation from the public.
It is therefore our well-considered view that in its current form, the Bill has the potential to infringe on freedom of expression and on the right to privacy.
In debating the Bill, Botswana should be guided by Principle 41 of the Declaration of Principles of Freedom of Expression and Access to Information in Africa of the African Commission on Human and Peoples’ Rights.
Principle 41 says that States shall ensure that any law authorising targeted communication surveillance provides adequate safeguards for the right to privacy. The Criminal Procedure and Evidence (Controlled Investigation) Bill does not give adequate safeguards, with the State being given too much power and control over citizens.
Botswana should thus be guided accordingly to ensure the right to privacy and the right to freedom of expression are fully respected.
In that respect, and by virtue of this letter, we appeal to you, Your Excellency and the Parliament of Botswana, to halt debate on the Criminal Procedure and Evidence (Controlled Investigation) Bill.
Your Excellency, while we accept that the right to freedom of expression is not absolute, we humbly submit that the Criminal Procedure and Evidence (Controlled Investigation) Bill, does not serve a legitimate, fair and necessary purpose justifiable in a democratic society.
On the contrary, we are gravely concerned about the Bill’s potential to unduly restrict freedom of expression and the right to privacy.
Thus, we urge you, Your Excellency, and the Parliament of Botswana to:
- Delay debate on the Criminal Procedure and Evidence (Controlled Investigation) Bill until it meets local, regional and international standards and best practices for the exercise of freedom of expression, free association and the right to privacy.
- Embark on a wide-ranging consultative process on the new Bill with the citizens of Botswana, journalists and other key stakeholders. This process should be consultative and reflective of the views of a wide spectrum of the Botswana society.
Thank you for your kind consideration.
MISA Regional Chairperson