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Seditious libel and international limitation standards on freedom of expression: weighing the Sierra Leone seditious libel law on the scales of justice and democracy PDF Print E-mail
Written by Author: Joel Tejan Deen-Tarawally Esq. LLM in International Human Rights Law and Democratization in Africa, BL, LLB, BA.   
Wednesday, 04 November 2015 20:34

Sierra Leone is one of the states in Africa that still maintain the crime of seditious libel in section 33 of its Public Order Act 1965.  Seditious libel is a criminal offence of ancient English origin and colonial linkage; it filtered through the tunnels of colonialism into the African post-colonial political era. As early as 1378 the Statute of scandalummagnatum was promulgated in England to allow judges and church officials to bring an action of insult or defamation, and the offence of seditious libel was developed during the reign of absolute monarchy in the seventeenth and eighteenth centuries as an instrument to suppress and subdue political dissent in England.

Seditious libel cases at first looked much like prosecution for private libel since they simply involved government officials as the victims. But it was eventually distinguished from private criminal libel as capable of being committed only against a ‘public person’ or government official and constituted a greater offence since it brought the government into disrepute. Such disrepute was intolerable in England because it triggered disregard for government officials and was incompatible with the idea of royal infallibility (the idea that the monarch cannot make mistakes) an idea which portrayed rulers as ‘wise and good guides of the country’ and who were supposed to be ‘approached with proper decorum’.

The law of seditious libel therefore emerged to protect the crown and ‘great men of the realm’ of England from any public criticism that had the tendency of portraying them as unwise and causing dissatisfaction among the masses. Hence, Lord Ellenborough’s famous maxim ‘[T]he greater the truth the greater the libel’ because people were more likely to revolt if publications of allegations against the public officials were real rather than imagined.

There are two types of libel in the in Sierra Leone’s Public Order Act of 1965; defamatory libel in section 27 and seditious libel in section 33(1). Defamatory libel is the publication of a statement in a permanent form against an individual, which is likely to expose him to public hatred, contempt or ridicule or to damage him in his trade, business, profession, calling or office. Seditious libel, on the other hand, is any publication (including speech) that is deemed to have the effect of disturbing the tranquility of the state by way of bringing hatred, contempt, or excite disaffection against the government or public officials. In reality, the general basis of defamation laws is the protection of the right to reputation. But how far can the law go in protecting reputation? Is seditious libel really meant to protect the right to reputation?

International law provides that restrictions on the right to expression must conform to the following requirements: (1) Must be prescribed by law; (2) should protect a legitimate interest; and (3) should be necessary in a democratic society.  There has been a lot of debate in Sierra Leone on the limitations to freedom of expression. The issue however is not whether freedom of expression should be limited in Sierra Leone, but whether the seditious libel law constitutes an acceptable limitation to freedom of expression in an open democratic society and under international law.

Is the Sierra Leone seditious libel prescribed by law?

The question of whether seditious libel is prescribed by law in Sierra Leone may ordinarily not arise since it is provided in a statute of general application. However, the precise scope of the offence of sedition as provided in section 33 of the Public Order Act is uncertain, and it therefore fails to fulfill the requirement of legal certainty and foreseeability. Any law that restricts freedom of expression must be based on certainty and foreseeability. This requires the law to be framed with exactitude and precision in order to enable individuals to (a) know their obligations and (b) determine whether particular conducts are unlawful. In other words, the law must not be so vague or overboard that it could be used to suppress media freedom and freedom of expression. If a limitation provision gives discretionary power to public authorities, it must precisely indicate the scope and manner of the exercise of such discretion in order to avoid arbitrary interference with the rights of individuals. But the seditious libel law fails to fulfill this requirement because it gives government prosecutors and judges a wide latitude and discretion to determine what may disturb the tranquility of the state by way of bringing hatred, contempt, or excite disaffection against the government or public officials.

Whether seditious libel serves a legitimate interest and necessary in a democratic society are also questions that are very critical to consider in examining its conformity with acceptable limitation standards under international law.

Is seditious libel in Sierra Leone for the purpose of legitimate interests?

The legitimate interests test comprises the protection of the rights or reputations of others, national security or public order, or public health or morals. In order to be considered as an acceptable limitation to freedom of expression, seditious libel must only exist to serve one of these interests. Failure to comply with this standard means that it constitutes an unjustifiable limitation to freedom of expression.

The African Commission in Principle XIII of its Declaration of Principles on Freedom of Expression in Africa (2002) has stated that freedom of expression should not be limited on public order or national security grounds except where there is a real risk of harm to a legitimate interest and there is a  close connection between the risk of harm and the expression. The UN Human Rights Committee in General Comment No 34 has also expressed the view that in limiting the right to expression, states must show in unambiguous terms the precise nature of the threat and the necessity and proportionality of the particular action taken by establishing a direct and immediate connection between the expression and the threat. The Committee also emphasized that it is incompatible with article 19(3) of the ICCPR to invoke laws ‘to prosecute journalists, researchers … human rights defenders, or others’ for disseminating information, and that penalizing or imprisoning journalists and publishers for criticizing the government is not a necessary restriction to freedom of expression. The Committee however acknowledged the importance of limiting freedom of expression and noted that such limitations must be crafted in such a way that the right to expression will not be stifled and must include defences such as the defence of truth.

The Public Order Act of 1965 creates a number of offences supposedly in furtherance of public order. However, it is really difficult to see how seditious libel and the other criminal libel offences serve any public order objective. This is because truth is not a defence to sedition, and the fact that a defendant did not believe an article was defamatory because of its truthfulness is also not a defence. The prosecution on the other hand only needs to prove that the published statement referred to the complainant (a public official), was defamatory and the accused had a seditious intent. The Public Order Act defines seditious intent as an intention to bring into hatred or contempt or to excite disaffection against a public authority. It therefore follows that if a publication is made about a public official regarding a certain corrupt conduct, maladministration, or some other unjustifiable practices that have the potential of portraying an awful image about his government, then the truthfulness or reality of such conduct of practices is immaterial and untenable. As long as the prosecution can prove that the publication caused or is likely to cause hatred or contempt or excite disaffection against the government, the accused can be found guilty and sentenced to imprisonment.

In addition, for the law of sedition to qualify as protecting the rights and reputation of others, it must create a cause of action that is available for all individuals to litigate. It must also have as its genuine purpose and discernable effect the legitimate aim of protecting such reputations or interests. However, as evidenced in its history, seditious libel was developed many centuries before the idea of human rights was incorporated into international treaties and domestic statutes, and its only purpose is to shield public officials from criticisms. Its objective is therefore not to protect the rights and reputation of individuals but to function as an instrument of political power that is intended to make political regimes unchallengeable.  This political function is evident in section 34 of the Public Order Act which provides that an action for seditious libel may only commence after the Attorney-General (AG) has issued a written consent. The Attorney-General of Sierra Leone is not only the legal adviser to the President but he is also a cabinet minister and the Principal State Prosecutor. Section 36(1) of the Public Order Act also states that ‘where any person convicted of an offence under sections 26, 27, 32 or 33 or of an attempt or a conspiracy to commit or of complicity in, any such offences, is a publisher, the Court shall forthwith send a report of such a case to the Governor-General (the President)’. The focus on ‘publisher’ in section 36(1) is further indicative of censorship of the press contrary to Sierra Leone’s obligations under international law as stipulated in article 19 of UDHR, article 9 of the African Charter and article19 of the ICCPR.

Is seditious libel necessary in a democratic society?

A democratic society is a society which recognizes and respects the human rights of its citizens, and if seditious libel is to pass the democratic necessity test in Sierra Leone then it must be proved as a necessary legal instrument that conforms to Sierra Leone’s democratic principles as stipulated in section 5 of the 1991 Constitution and also to the recommendations of the Sierra Leone Truth and Reconciliation Commission. To be ‘necessary’, seditious libel must be more than merely reasonable or desirable; a ‘pressing social need’ must be demonstrated, and it must be proportionate to a legitimate aim. However seditious libel cannot be considered as a ‘pressing social need’ because it is not indispensable to our nation’s democratic process as its only purpose is to protect public officials from criticisms. This single objective of seditious libel is not within the concept of ‘legitimate interests’ in international law and it cannot be considered as proportionate because international law provides a very high degree of tolerance for political speech; and an even higher threshold is provided when such speech is directed towards government officials.

Unlike the period of absolute monarchy in England, Sierra Leone is now a pluralistic democratic state that is based on multi-party elections and the rule of law. Citizens have a right to political participation, and the process of elections does not only involve voting but also criticisms and public debates.  In such a democratic environment, it is essential that any restriction on freedom of expression be the least restrictive means possible.  In the midst of various options to achieve a legitimate objective of restricting media freedom and freedom of expression, that which least restricts the right must be selected. Apart from seditious libel and other criminal defamation provisions in the Public Order Act there is also the tort of defamation which is civil in nature and provides adequate legal protection for the rights and reputation of individuals in Sierra Leone. The Complaint Committee of the Independent Media Commission also constitutes another mechanism which can effectively regulate the exercise of media freedom. It is indeed unfortunate and highly regrettable that the seditious libel law, a sixteenth century English monarchical law that has long been abolished in England. 

The only legitimate purpose of defamation laws is the protection of the reputations of others. This legitimate purpose is clearly not served by the seditious libel law because it is a law that is meant only to protect the ‘public image’ of public officials in a bid to always place governments in the good opinion of people. The law shields public figures from criticisms, legitimate or otherwise, and punishes the exposure of corruption, mismanagement of national resources and other official wrongdoings since the publication of such information may have the effect of causing dissatisfaction among members of the public. In effect, it censors and prevents legitimate and thorough public debates that will allow citizens to adequately analyze and scrutinize the conduct of public officials on their performance and service delivery. On all these grounds, there can therefore be no justification in Sierra Leone for the continued existence of the law of seditious libel. I therefore wish to kindly call the attention of our President, His Excellency Dr Earnest Bai Koroma, Honorable Members of Parliament and the present Constitutional Review Committee to finally look into this matter and make a change in the interest of development, democracy, human rights and justice.

Author: Joel Tejan Deen-Tarawally Esq.

LLM in International Human Rights Law and Democratization in Africa, BL, LLB, BA.

 

 

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