MultiChoice Botswana is not going down without a fight in its race against time waging of war against Botswana Communications Regulatory Authority (BOCRA) – a spirited bid to avoid price control by the communications regulator.
In the coming fortnight, MultiChoice will have its fate laid bare by the Court of Appeal which will decide whether BOCRA should regulate the subscription service manager tariffs. MultiChoice subscribers who have been complaining about the high pricing of the subscription service manager are crossing their fingers that the highest court in Botswana endorses Justice Tshepo Motswagole’s High Court ruling which supports BOCRA’s move to control the South African company’s tariffs.
On the other hand it is apparent that MultiChoice sees the move by BOCRA as a financial blow to its pay television business. The South African company has been increasing prices citing high business operating costs and the last year’s High Court decision was seen as a financial impediment by MultiChoice who even threatened to live the country and its strict tariff jurisdiction. While MultiChoice’s chief argument, something which the company still maintains to the Court of Appeal, is that BOCRA’s decision is risky in that it might set precedence for other African regulators.
MultiChoice enjoys a monopoly of multi-channel pay television services across the African continent. The crux of the matter on the MultiChoice versus BOCRA corporate civil case tussle hangs on the interpretation of Clause 13 of the license BOCRA granted MultiChoice Botswana. This Clause which licensed MultiChoice to operate as a subscription service manager in Botswana requires MultiChoice Botswana to amongst other things, submit to BOCRA in writing, a proposal in respect of subscription fees it intends to apply or send tariff increment to the regulator for approval.
Clause 13 is also buttressed by Section 90 of the BOCRA Act which requires all licensed service providers to submit their intended tariffs to BOCRA for approval. MultiChoice’s cry is that BOCRA is trying to abuse Clause 13 or just misinterpreting the language used in the piece of legislation. “We submit that the language of this provision is clear. BOCRA may impose conditions and restrictions on a licensee in relation to its own performance of the activities for which the licence is required. It may set conditions for the performance of those activities and may impose restrictions on them,” argues MultiChoice.
However the pay television giant further says there is nothing in the language of the section to suggest that BOCRA may impose “conditions” on a licensee, which are unrelated to its own conduct, purely to regulate the conduct of a third party. “…BOCRA included clause 13 in MultiChoice Botswana’s licence with the avowed purpose of regulating Multi Choice Africa’s tariffs. That was an impermissible anterior purpose,” argues MultiChoice. MultiChoice Botswana further argues that no BOCRA legislation directly regulates its parent company Multi Choice Africa’s broadcasting activities.
Also the company states that MultiChoice Africa is not directly subject to BOCRA licence regulations, therefore the regulator is trying to impose regulation on MultiChoice Africa’s broadcasting activities which are also MultiChoice Botswana’s. BOCRA emphasizes Mutlichoice compliance to Clause 13 as failing which the subscription business supplier would be operating in Botswana regulatory jurisdiction illegally.
When tackling the argument that BOCRA is trying to impose its legislation on Multhichoice parent company though its Botswana offspring, the regulator dismisses that as a non-started which would not hold water. “….There cannot be no plausible reason to argue that pricing in Botswana must the same as for the rest of Africa because the prices to the various subscribers differ from country anyway. As far as content is concerned, it is clear that local television services are provided through the DStv platform and content can vary from country to country. It appears that MultiChoice as a group is even considering pay-per view services being provided in certain countries,” states BOCRA.
Following their loss to the Duma Boko-led lobby in the Botswana National Front (BNF)’s national congress last month, some members of the party are reportedly considering forming a new political party.
According to members, the new party will be formed after they receive a tip-off that the BNF will do all it can to ensure that the aggrieved members do not participate in the 2024 national elections. This will reportedly done through a carefully orchestrated primary elections elimination campaign.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.