Response to Determination by the NBB on breach of Code of Conduct for Broadcasters during Elections: Radio Botswana and Botswana Television

source: Republic of Botswana (30/9/09): TAUTONA TIMES no 25 of 2009
The Electronic Press Circular of the Office of the President
“Democracy, Development, Dignity and Discipline”

C1) 28/9/09: Response by the Minister of Communications, Science and Technology, the Honourable Pelonomi Venson-Moitoi, to Determination by the National Broadcasting Board on breach of Code of Conduct for Broadcasters during Elections: Radio Botswana and Botswana Television.

1) The Ministry has recently received a “Determination” by the National Broadcasting Board (NBB), dated 16/9/09, with respect to its broadcast of a message by H.E. the President over Radio Botswana and Botswana Television (BTV) on the 21st of August 2009.

2) It must be stated from the onset that the Ministry fully respects the regulatory authority of NBB. In this respect DBS remains committed to working within the recently launched Code of Conduct for Broadcasters during Elections (the Code), which it has volunteered to adhere to.

3) Radio Botswana and BTV thus remain prepared to fully fulfil their obligations to air, free of charge, party political messages, in accordance with Sections 5 and 9 of the Code.

4) We have accepted this undertaking notwithstanding the fact that it is our understanding that said Code does not have the legal standing of a “Code of Practice” as provided for in Sections 21 and 23 of the Broadcasting Act, that is to say that the Code has not been incorporated into any Regulations prescribing what broadcasting bodies may or may not do.

5) We further note that we have undertaken to abide by the Code notwithstanding the fact that Section 19 of the Code suggests to us that it should apply to broadcasting bodies in the context of their licence conditions. It may be observed that the NBB has heretofore failed to licence BTV, notwithstanding its obligation to do so.

6) We are, however, concerned about, certain aspects of the NBB Determination with respect to the 21st August 2009 Presidential Message.

7) In its determination the Board held that the said broadcast was a Botswana Democratic Party (BDP) ‘party political broadcast’ and was therefore in breach of Clause 5.1 of The Code.

8) The NBB has, therefore, ordered that DBS to offer other registered political parties the opportunity to air their party political broadcasts as was accorded to the Botswana Democratic Party; further ordering that other parties’ broadcasts should be aired before the BDP has a second chance to do another such broadcast.

9) We wish to here note that the Code clearly defines ‘party political broadcast’ as a programme that is aired during the Election Period, that is following the issuance of a Writ of Election instrument in terms of Section 34 of the Electoral Act until the declaration of results in accordance with Section 77 of the Electoral Act; which is:

a) broadcast free of charge;
b) intended or calculated to advance the interests, beliefs, or objects of any Political Party or Candidate;
c) Pre-recorded;
d) scheduled; and also
e) “wholly under the editorial control of the party which requests the broadcast and the broadcaster shall not be held liable for the content of the broadcast”.

10) While the Presidential Message of 21/9/09 was broadcast free of charge, we do not believe that it otherwise falls under the above definition of the Code for the following of reasons.

11) Firstly, we observe that the NBB’s “determination” fails to provide us with the basis on which the Board reached its conclusion that “the statement was primarily made to advance the interests of the BDP”. While it did deal with matters involving the ruling party, it should be noted that the Presidential Message of 21/9/09 was issued to us by the State President from the Office of the President as a matter of interest and concern to the nation in large.

12) Given the above, it cannot in our view be said to have come from, or be under the editorial control of, any political party. The text of the Message unambiguously confirms this fact, which does not appear to be disputed by the NBB, e.g. we note the Board’s own admission in its determination that: “The Department of Broadcasting Services was instructed by the Office of the President”

13) It may be further noted that the Presidential Message was originally read live on air and therefore cannot be reasonably construed to have been pre-recorded.

14) It is our understanding that when the Head of State has determined a matter to be of national importance and warranted it for nation-wide broadcast, it is not for Radio Botswana and Botswana Television to question such a decision.

15) The Message by BTV and Radio Botswana was thus carried out in the national interest and was furthermore in conformity with Section 17 of the Public Service Act Cap 26:01 and General Order 45.2.8 with respect to the general duties of public officers, as well as consistent with the powers and privileges of a sitting President as provided for in the Constitution.

16) In this context, we do not believe that it would be appropriate for DBS to second guess the judgment or otherwise exercise editorial control over Messages issued by the Executive Office.

17) An additional objection to the NBB ruling relates to the ‘order’ or conclusion reached. We are frankly at a loss as to the basis for this. To us it would appear to be the product of an erroneous application of provisions within the Code, which were not intended to address the type of complaints such as the one before the Board. In this context the Code in our view lays out equitable guidelines for the manner in which party political broadcasts should be conducted during the election period.

18) Moreover, the NBB decision in our view begs more questions than answers, even if we were prepared to implement it. In offering the other political parties the opportunity to air their party political broadcasts ‘that the BDP has had’, we are left to wonder what precisely is to be the subject or content of said broadcasts? Should they address the issues raised by the BDP, or simply discuss their own similar party issues?

19) Against the foregoing observations, which in our view raise fundamental questions of law and due process, we find the ‘order’ as handed down by the Board, to be of questionable effect.

20) Notwithstanding the above objections to the Board’s determination, the Ministry, however, takes this opportunity to once more reiterate that DBS is prepared to immediately carry political party broadcasts on an equal opportunity basis, as and when they are received from the duly authorized representatives of all political parties registered for the election.

21) In the meantime both stations will also continue to provide equitable coverage to all active political parties as is reflected in our ongoing news broadcasts and current affairs programming.

Below please also find previous 23/9/09 response on the same subject by the director of Broadcasting Services, Mr. Mogomotsi Kaboeamodimo: Press Statement on the NBB ruling against Broadcasting Services.

1. We have received communication from the National Broadcasting Board of Botswana (NBB) regarding the Board's determination that the Broadcast of a statement from the Office of The President over Radio Botswana and Botswana Television on August 21st 2009, was in breach of The NBB Code of Conduct for Broadcasters during Elections (The Code).

2. In its determination the Board held that the said broadcast was a Botswana Democratic Party (BDP) 'party political broadcast' and was therefore in breach of Clause 5.1 of The Code.

3. The Code defines 'party political broadcasts' as a programme which is: (a) broadcast free of charge; (b) intended or calculated to advance the interests, beliefs, or objects of any Political Party or Candidate; (c) Pre-recorded; (d) scheduled and "wholly under the editorial control of the party which requests the broadcast and the broadcaster shall not be held liable for the content of the broadcast".

4. The NBB has ordered us to offer other registered political parties the opportunity to air their party political broadcasts as was accorded to the Botswana Democratic Party. The NBB has further ordered that the other parties' broadcasts should be aired before the BDP has a second chance to do another party political broadcast.

5. The NBB determination follows engagement with Radio Botswana and Botswana Television, during which I as the Director of Broadcasting Services, provided clarifications to the Board relating to the circumstances, the nature and the handling of the said broadcasts by both government stations.

6. We wish to confirm that we respect the mandate of the NBB as defined in the Broadcasting Act Cap 72:04 and acknowledge the NBB's authority over the conduct of Broadcasters through the issuance of broadcasting licenses by the Board. To this end we await the conclusion of a process that started last year for the licensing of both Botswana Television and RB2 by the NBB.

7. We confirm also that Radio Botswana and Botswana Television, being the state media, are subject to provisions of the Public Service Act Cap 26:01 with respect to the general duties of public officers. We further submit that in dealing with matters from the Office of The President, we are mindful of the Constitutional provisions with respect to executive privileges and powers of a sitting president who presently happens to be simultaneously a political party leader.

8. In this context we believe it is necessary to engage the Board to seek further clarification in order to facilitate compliance with the Code and on matters incidental to any such compliance and which matters may be peculiar to Botswana Television and Radio Botswana.

9. We wish to reiterate, as we did during the hearing of September 14th 2009, that while the President's statement of August 21st 2009 did deal with matters specific to the Botswana Democratic Party, it was issued by the State President from the Office of The President via the state media. The President made it clear that he considered the issue to be a matter of concern to both the BDP and the nation at large. My position is that when the Head of State has determined a matter to be of national importance and warranted it for nation-wide broadcast on the state media, it is not for Radio Botswana and Botswana Television to question such a decision.

10. In the meantime both stations continue to provide unbiased coverage to all active political parties as can be seen in our news broadcasts and current affairs programming. What cannot be ignored is the fact that some parties have more activity than others. This fact is not a creation of Radio Botswana and Botswana Television but a reality of the present political landscape.

11. We categorically state that no political party or individual has been favoured or disadvantaged in any manner by BTV or Radio Botswana coverage of elections-related political activity as has been suggested by some with respect to Botswana Television. We demonstrate this fact in the next paragraph and challenge anybody to show contrary evidence.

12. Electioneering has heightened progressively since February 2009 to August 1st 2009. During this period electioneering meetings have come mainly from the BDP, the BCP/BAM, and the BNF. Accusations of biased and inequitable coverage have been directed specifically at BTV. The truth is that BTV news has covered most of the electioneering meetings, with the largest number (about 32) for the BDP; the next largest number (about 22) for the BCP/BAM and the lowest number (about 12) for the BNF. We cannot possibly air everything that we cover. Life goes on outside politics and BTV and Radio Botswana are working very hard to report about the lives of Batswana as well. Of BDP's 32 electioneering meetings, only six were not aired; while for the BCP/BAM only three of 22 were not aired; and while for the BNF six of 12 were not aired.

13. I want to thank my news and programming teams for the sensitive and tension-filled work they are doing for the good of this nation. I also express Radio Botswana and BTV's gratitude to all our and sources of news who are helping us to inform and educate this nation.

14. Despite the ubiquitous challenges we face in gathering material for news and programmes, the world can rest assured that we are poised to report on the coming General Elections to the best of our professional ability.