In the dispute between

Complainant : Prince Dibeela

AND

Respondent : Botswana Television

OMBUDSMAN REPORT
(In terms of Section 8(1) of the Ombudsman Act 1995)

Date opened : 23 February, 2016

Type of maladministration : Unfair Editorial Practice

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Background

· By letter dated 15 February 2016, the Complainant lodged this

matter with the Office of the Ombudsman. He alleged that,
although it is a public broadcaster and is sustained through the
taxes paid by all citizens, whose interests it is supposed to serve,
Botswana Television (Btv) is instead used to serve the interests of
the ruling Botswana Democratic Party (BDP), in that:

i) It rarely airs programs of opposition parties.

ii) It regularly bombards the public with BDP propaganda.

To expand on the above allegations, the Complainant cited the

national broadcaster’s failure to air the unveiling of the tombstone of
one of Botswana’s former opposition party leaders, Dr. Kenneth
Koma, in November, 2015 as well as the reception of one Dr. Margaret
Nasha, a former BDP activist, into opposition party ranks on 14
February, 2016.

· According to the Complainant, Botswana Television’s Editorial

Policy:

i) Totally excluded coverage of opposition party events.

ii) Allowed the over-editing of shots to the point where the stories
were rendered incomprehensible, and

iii) Allowed the late airing of stories after the events, when people
would have psychologically moved on and were no longer
expecting them.

Such, according to Complainant, amounted to abuse of a public facility

and was tantamount to mal-administration.

It is not clear whether points No (ii) and (iii) under the second bullet
above refer to all news articles or stories covered and aired by Btv or

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only those relating to the activities of the opposition parties. I will
however, proceed on the basis that they referred to all new articles,
noting however that the crux of the complaint is covered under the first
bullet and point (i) of the second, in so far as relates to opposition party
events.

Jurisdiction

Having received the complaint, I addressed the issue of whether I have

jurisdiction to investigate the complaint. This question can only be
answered by perusing the provisions of the Ombudsman Act No. 5 of
1995.

Section 3(1) in particular provides:

“Subject to the provisions of this Section, the Ombudsman may

investigate any action taken by or on behalf of a Government
Department or other authority to which this Act applies, being
action taken in the exercise of administrative function of that
Department or authority, in any case where:-

(a) A complaint is made to the Ombudsman by a member of the

public who claims to have sustained injustice in consequence
of mal-administration in connection with the action so
taken……….”.

· The complaint was brought by one Reverent Prince Dibeela, a

member of the public and a citizen of this country, who also
happens to be a senior member of the Botswana National Front
(an opposition party) and by extension the Umbrella for
Democratic Change (a coalition of opposition parties).

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· The next question for determination is what injustice, if any, is the
Complainant likely to suffer in consequence of the mal-
administration.

· This question is both relevant and important because the

Ombudsman does not investigate a matter only for the reason that
there is mal-administration, but most importantly that the mal-
administration has caused injustice to the Complainant.

· Injustice is not defined in the Ombudsman Act, 1995 but would

in law generally entail some of the following:-

“Financial loss, emotional pain, hurt feelings, distress, worry,

inconvenience, loss of right or amenity, unfairness, in-
equitable or un-conscionable decisions or actions etc.

· In his letter of complaint, the Complainant stated the following:

“I wish to lodge a complaint and seek your intervention in

the misuse of a public institution. Botswana Television is
supposed to be a public broadcaster which is sustained
through our taxes”.

· It is common cause that the Complainant is a member of the

public, a tax payer and a prominent member of one of the oldest
political parties i.e. the Botswana National Front (BNF) which is
also an affiliate of the Umbrella for Democratic Change (UDC), a
coalition of opposition political parties.

· The Complainant is duly qualified, as a member of the public, to

lodge a complaint as also his claim that his political party is likely
to suffer injustice in consequence of the actions or inactions of the

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 respondent is justified and meritorious in accordance with Section
3(1) of the Ombudsman Act.

On the basis of the above, I came to the conclusion that the

Ombudsman has jurisdiction in the matter.

Remit Of The Investigation

By Savingram, Ref OMB 16/8324 I (3) dated 3, March, 2016, the

Ombudsman commenced enquiries into this matter and identified the
following as the issues requiring clarification:

· Whether Btv has an editorial policy, written or otherwise.

We implored the leadership of Btv to provide documentary proof

of such a policy, or in the absence of one, to give a detailed
description thereof, with particular reference to what the policy
said about the coverage of political party activities.

· We requested Btv to comment on the specific accusations leveled

against them, i.e. that they rarely aired the programs of opposition
parties but regularly bombarded the public with BDP
propaganda, as well as the specific examples given in support of
the accusations.

· The leadership of Btv responded vide Savingram, Ref: BS 1/12/4

I (79) dated 01 June 2017, to which was attached two other
documents titled “BOTSWANA TELEVISION MANDATE” and
“EDITORIAL GUIDELINES.” I will revert to and discuss the latter
documents later, as they appear to be the basis of the
Management’s position in this matter.

Investigation Process

· As indicated above the investigation was conducted by way of

correspondence exchanged between this Office and the parties,

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 where each put their case forward. The correspondence was,
however, limited to the letter of complaint, our Savingram
conveying the complaint to the Department and their response
thereto, which I thought was detailed enough for me to make a
decision on the matter.

· Research was also conducted on the mandates and governance

structures of other public broadcasters such as the British
Broadcasting Corporation (BBC) and the South African
Broadcasting Corporation (SABC) for comparison’s sake.

Ombudsman’s analysis

· At the centre of the complaint was Btv’s editorial policy that,

instead of serving the interests of all tax paying Batswana,
allegedly served those of the ruling party, by rarely airing
programs of opposition parties and regularly bombarding the
public with BDP propaganda. The failure to air the two events,
i.e. the unveiling of Dr. Koma’s tombstone and the admission of
Dr. Nasha into the opposition ranks were given as examples of the
alleged skewed editorial policy. No examples were given, of ruling
party events that the broadcaster had covered or aired in
preference over the two cited above. According to the complainant,
however, Btv crews had attended at both of the two cited events,
and apparently covered them, but still they were not aired. This,
the Complainant attributed to the editorial policy above.

· As earlier indicated, Btv has, in response to these allegations,

provided a document titled “BOTSWANA TELEVISION
MANDATE,” under which their operational parameters are
defined. To that document is attached another document titled
“EDITORIAL GUIDELINES,” and it is my belief that those were
provided in answer to my first question above. The two documents
broadly set out the national television’s editorial policy and the
logic around its approach to events coverage and publication.

· At the onset, the first document states that Btv is a state

broadcaster whose mandate is to promote and publicise

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 Government’s programmes, projects and national events for the
benefit of the citizenry. In doing so, they are guided by internal
and professional standards and guidelines. The document further
states that Btv observes a professional media code of conduct and
ethics. The document further provides that Btv espouses high
journalism ideals, including accurate, balanced, fair and equitable
reporting.

· These are good principles, but the issue is whether they are being
applied in the actual performance of Btv’s day to day duties. More
particularly, and in view of the above stated principles, the
question will be whether there is equity in the coverage of political
party activities and events! The Complainant alleges that there is
no such equity, and that the broadcaster is skewed in favour of
the ruling party.

· The EDITORIAL GUIDELINES recognize that the public media

organs are funded by the public and therefore exist to serve the
public, which is confirmation of the Complainant’s position above.

· They further provide, among other things, that the employees of

both Radio Botswana and Botswana Television will “Ensure that
during political and election broadcasts the public is fully
informed about the policies and programmes of all political
players.” (See Editorial Guidelines, 3rd page, 1st bullet from the top).
This particular rule would in my view ensure balance and equity
in the reporting of political party activities and events, and still
therefore begs the question, whether such actually obtains in
practice.

· Btv, has denied that they rarely air programmes of opposition

parties, adding that they regularly cover those. They stated that
they strive for equity in their news coverage in accordance with
their own code of conduct as well as professional media guidelines,
as stated above. They therefore contend that the accusation that
they regularly bombard the nation with BDP propaganda is a
matter of conjecture.

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· Moving from the statements made by the parties, I have
fortunately, been provided with another attachment titled “BDP,
BCP AND UDC STORIES AIRED ON BTV - JUNE 2016 TO MAY
17, 2017.” As it is, the BDP is the ruling party, the BCP a stand-
alone opposition party and the UDC a conglumerate of other
opposition parties as at the time.

· The document therefore demonstrates how much air play was

given to each of these political players and should, in my view
demonstrate if the principles enunciated in the two other
documents above, i.e. “BOTSWANA TELEVISION MANDATE”
and “EDITORIAL GUIDELINES”, were being lived. The document
lists a total of ninety (90) events, out of which only one, titled “BDP
VP-BCL,” of 18 October, 2016, does not immediately come out as
a political party activity. Of the other eighty-nine (89), seventy-
three (73) were for the ruling party and only sixteen (16) for the
combined opposition parties, BCP included. In terms of
percentages this accounts for 82 % coverage for the BDP against
18% for the combined opposition.

· Btv did not respond directly to the accusations regarding the

unveiling of Dr. Koma’s tombstone and the admission of Dr. Nasha
to the opposition. Neither do those activities appear on the list
referred to above as they clearly happened outside the period
covered thereby.

· Btv also specifically relied on the above document in denying the

allegation that it rarely covered the events of opposition parties,
arguing that they regularly cover those and that nothing can be
further from the truth than the accusation.

· In response to the question on what influences their decision to

cover political party events and whether the identity of the party
has any role in influencing such, Btv stated that they aspire to
cover all newsworthy events, which was however, not always
possible due to resource constraints. As such they had to
prioritise, a process that is influenced by factors such as
newsworthiness, magnitude of the event, availability of resources,

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 and the need for inclusion. Events and activities of the leadership
and top government officials are thus given priority coverage in
order to inform Batswana on service delivery of government and
also to get their feedback.

· These are good principles, but the issue, still, is whether they are
being lived, or whether they are supported by the evidence
provided. In my assessment, and unless some information has
been left out, the picture painted by the document cited above is
not one of equity, balance and inclusiveness in the coverage of
political party activities. It cannot be equitable, in my view, that
out of eighty-nine (89) political party events aired on a national
broadcaster who seeks” to ensure that the public is fully
informed of the policies and programmes of all political
players,” and to provide equity and balance in their coverage of
such, that one party enjoys 82% coverage compared to 18 % for
the rest. I have considered the issue of newsworthiness as referred
to by Btv, but find it hard to believe that out of the eighty nine
(89) activities, only sixteen (16) from the combined opposition
were found to be newsworthy, compared to seventy-three (73)
from the ruling party.

· Finally, the reference to the activities of the leadership and high

ranking government officials appears to me inapplicable in this
case as all the events listed were clearly political in nature and
have nothing to do with government policy or service delivery. The
events here cited were either celebratory of the achievements of
the particular political party or were meant to inform the public of
its activities, or to prepare it and its members for forthcoming
events, like bye-elections. A failure to achieve balance and equity
in the coverage of such activities therefore gave one party an
undue advantage over the others.

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Ombudsman Findings

Section 3(1)(a) of the Ombudsman Act, No. 5 of 1995, provides that;

‘Subject to the provisions of this Section, the Ombudsman may

investigate any action taken by or on behalf of a Government
Department or other authority to which this Act applies, being
action taken in the exercise of administrative functions of that
Department or authority, in any case where a complaint is made
to the Ombudsman by a member of the public who claims to have
sustained injustice in consequence of maladministration in
connection with the action so taken’

· Complainant, being a member of the public complains that Btv has

given the ruling party an undue advantage by their unbalanced
coverage of political party activities and the document provided by
the respondents above clearly supports this claim. It also
demonstrates that, despite the existence of good policy statements
and guidelines, Btv has not lived up to those but has unduly
favoured the ruling party in their coverage of political events.

· That obviously resulted in injustice to other political parties and

those with an interest in Botswana’s political sphere as they were
denied the opportunity to compete fairly with the ruling party.

· It is my view therefore that Btv’s coverage of political party activities

does not meet the requirements of balance, equity and inclusiveness
as set out under their mandate and guidelines. Such needs to be
corrected in order for Btv to play its role properly and effectively.

Brief Comparison: Btv and Other Public Broadcasters

· Btv unlike the British Broadcasting Corporation (BBC) and the

South African Broadcasting Corporation (SABC) is an entity under
the Department of Broadcasting Services of the Government of
Botswana. It was not established or created by any law and only

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 operates under the two documents already provided in this case,
whereas BBC and SABC have both been created by some
instruments called Charters which are laid out in their founding
legislations. The documents are its foundation and provide the
necessary guidance on its operations.

· In the case of the BBC, the Charter provides, amongst others, the
appointment of Governors. The Governors’ duties include,
amongst others, setting clear objectives and priorities for the BBC
and monitoring how they have been met; ensuring that the BBC
is directed and managed in the public interest; is accountable to
the license fee payers and Parliament and ensuring that the BBC
complies with the law and maintains high standards.

· Some commentators have often described the BBC as an

important crown jewel of the country and being of intrinsic
importance to the way the British democracy functions.
Undoubtedly the BBC has a pride of place in the psyche of the
British people.

· The SABC on the other hand, is also created by Charter as a public

broadcaster and makes provision for the appointment of a Board
of Directors. The Charter is laid out in Chapter IV of the
Broadcasting Act and requires the SABC to provide a wide range
of programmes that advance the national and public interest.

· The above governance structures of both the BBC and SABC make
provision for clear accountability, fairness and transparency in
the operations of the two broadcasters. These institutions are not
only accountable to their Governments, but also to the public and
their Parliaments. Their Boards periodically appear before
Parliamentary Committees to account on how they execute their
mandates and spend public finances.

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 · In a democratic set up like ours, it is therefore, imperative that
institutions such as a national broadcaster should be:

(i) established by law or some instrument that will clearly spell

out their mandates and governance structures;

(ii) transparent in the discharge of their mandates and

functions; and

(iii) accountable to the nation and Parliament in particular.

_____________________________________________________________________
The Recommendation

In terms of Section 8(1) of the Ombudsman Act No. 5 of 1995, where

the Ombudsman finds that a Government Department has caused an
injustice to a member of the public in the performance of its
administrative functions, he shall send a report of his findings to the
concerned Ministry or Department, which shall contain his
recommendations on how the injustice is to be corrected. The section
states that:

‘After conducting an investigation under this Act the Ombudsman

shall send a report of the results of the investigation to the
principal officer of the department or authority concerned and if
he is of the opinion that an injustice has been caused to the
person aggrieved in consequence of maladministration, he shall
make such recommendations as he thinks fit for remedying the
injustice caused’.

· In my view the allocation of air time slots on Btv is an

administrative function of the leadership of that entity, and I have
found that they have, in the performance of such, unduly favoured

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 the ruling party over the opposition, thus giving them an undue
advantage in obtaining political mileage.

· That clearly caused an injustice to the opposition parties and gave

the Complainant, being a member of the public with an interest in
influencing Botswana’s political landscape, the right to raise the
complaint with the Ombudsman.

· Btv should therefore ensure a proper application of the principles

stated in their Mandate and Editorial Guidelines to ensure that
their reporting of political party activities is balanced, inclusive
and equitable, both in terms of the content and of the number of
events covered. Only then, in my view, would they be able to
effectively and fairly inform the citizenry of the policies and
programmes of the various political role players and to build the
nation as per their mandate. Anything to the contrary is
unsupportive of such mandate.

· This being an issue of national interest and being continuous in

its nature, it can only be appropriate that these remedial
measures must be put in place immediately, and I so recommend.

THUS DONE IN GABORONE ON THIS 28th DAY OF AUGUST, 2017.

__________________
Augustine N. Makgonatsotlhe
OMBUDSMAN

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