Lesotho is so dependent on SA for commerce that there are few local businesses capable or desirous of taking out advertising space in a national publication. Public Eye thus has little prospect of attracting other business to offset its recent loss. It faces a significant reduction of operations and the people of Lesotho, in consequence, will have diminished access to independent news. It is not clear why the Lesotho executive has issued a directive to all government departments, agencies and parastatals prohibiting them from advertising in Public Eye but there is reason to believe the motivations are less than lawful. Those who issued the directive have been suspiciously silent . Repeated requests to various bodies for an explanation have yielded no response. It is reported that government legal advisers have counselled against providing reasons. All this prompts the question: why the secrecy?
Certainly it seems to stand to reason that governments are free to choose with whom they do business. Indeed, the US Supreme Court has recognised that government officials are entitled to terminate a contract for any reason or for no reason at all, barring certain legal limitations. But the court also very clearly held that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech, even if he had no entitlement to that benefit”.
In respect of the press in particular, US courts have ruled that “although a newspaper may have no right to receive certain advertising from the government, it would violate the constitution for the government to withhold public patronage, in the form of its advertising, from the newspaper in retaliation for the newspaper’s exercise of first amendment (right to free speech and political association) rights”. The Botswana High Court adopted a similar line of reasoning in 2001, when it ruled that the Botswana government’s decision to withdraw advertising from two publications critical of the government amounted to a violation of the publications’ constitutional rights to free speech.
The court was persuaded that the government had decided to withdraw advertising not for legitimate reasons, such as consideration for the newspaper’s distribution rates or readership, but because the newspaper had been critical of government officials. In that case it was established that a government minister had explicitly informed the newspaper that advertising was to be withdrawn in consequence of the newspaper’s repeated criticisms of public officials.
It is this precedent that might explain the Lesotho government’s reluctance to support its recent decision. Yet if the motivation, albeit unstated, is one of attempting to rein in or silence the independent speech of Public Eye, the decision is unlawful. It violates the rights of free speech and expression and choice of political association enshrined in the Lesotho constitution just as clearly as if the government had ordered that Public Eye was prohibited from publishing.
*Fritz is the director of the Southern Africa Litigation Centre.