STIFLING DISSENT, IMPEDING ACCOUNTABILITY CRIMINAL DEFAMATION LAWS IN AFRICA Acknowledgements This publication is the result of a joint research project by PEN Ghana; PEN Sierra Leone; PEN South Africa; PEN Uganda; PEN Zambia and PEN International. Project coordinators: PEN Sierra Leone (Allieu Kamara); PEN South Africa (Raymond Louw); PEN Uganda (Danson Kahyana and Beatrice Lamwaka); PEN Zambia (Daniel Sikazwe) The Ghana chapter was researched and written by Professor Kwame Karikari with contributions from PEN Ghana (Frankie Asare-Donkoh and Franck Mackay Anim-Appiah) The report was edited by Malcolm Smart, a PEN International consultant, who also contributed additional research and wrote some sections of the report. Editors: Lianna Merner, Sarah Clarke, Romana Cacchioli With thanks to Pansy Tlakula, former Chairperson and Special Rapporteur on Freedom of Expression and Access to Information, African Commission on Human and Peoples’ Rights; Ruth Becker; Mzimasi Gcukumana; Jonathan McCully; James Tager; Simon Delaney; Justine Limpitlaw; Nani Jansen Reventlow; Sam Levy; Bailey Kay; Kenneth Ntende; Getty Images; and Brett Biedscheid. PEN International and PEN Centres wish to thank all those who gave their time for interviews as well as contributed to the report. This report would not have been possible without the support and time of so many writers, civil society groups and media organisations across the continent. Published by PEN International, with the support of the United Nations Democracy Fund (UNDEF). PEN International promotes literature and freedom of expression and is governed by the PEN Charter and the principles it embodies: unhampered transmission ofthought within each nation and between all nations. Founded in 1921, PEN International connects an international community of writers from its Secretariat in London. It is a forum where writers meet freely to discuss their work; it is also a voice speaking out for writers silenced in their own countries. Through Centres in over 100 countries, PEN operates on five continents. PEN International is a non- political organisation which holds Special Consultative Status at the UN and Associate Status at UNESCO. International PEN is a registered charity in England and Wales with registration number 1117088. www.pen-international.org Cover image: Getty Images 1 EXECUTIVE SUMMARY 7 INTRODUCTION 13 LEGAL FRAMEWORK 20 CASE STUDIES 20 UGANDA 29 ZAMBIA 37 SIERRA LEONE 42 SOUTH AFRICA 47 GHANA 57 CIVIL DEFAMATION BEST PRACTICES: SOME CONSIDERATIONS 59 CONCLUSIONS AND RECOMMENDATIONS 61 ANNEX I: METHODOLOGY 61 ANNEX II: DECLARATION OF TABLE MOUNTAIN 62 ANNEX III: 169: RESOLUTION ON REPEALING CRIMINAL DEFAMATION LAWS IN AFRICA 63 ANNEX IV: PEN RESOLUTION #19: CRIMINAL DEFAMATION AND INSULT LAWS STIFLING DISSENT, IMPEDING ACCOUNTABILITY CRIMINAL DEFAMATION LAWS IN AFRICA EXECUTIVE SUMMARY In many countries in Africa, governments continue to stifle demands for national self-determination and independence. freedom of expression, open debate, political criticism and It might have been expected that those against whom the media reporting using laws that make it a crime to say, colonial authorities had used the criminal defamation and write or publish anything that they consider defamatory sedition laws would have cast such laws aside once they or insulting. These laws are usually vague and sweepingly gained power as leaders of newly independent African broad, opening them to such wide interpretation that states. But this did not occur. On the contrary, they retained they act as an ever-present constraint, particularly on these laws and began using them against their own critics investigative journalism and other aspects of the media’s and opponents, and to contain, constrain and undermine capacity to perform its public watchdog role. the press - and, latterly, the broadcast and electronic media – and the media’s role as an independent watchdog of the The threat of criminal sanctions that the laws provide public interest. inevitably deters media investigations into and reporting of issues governments consider sensitive or embarrassing, At the same time, government leaders throughout Africa such as high-level corruption, official malpractice or signed up to international agreements such as the law-breaking, thereby facilitating official secrecy and International Covenant on Civil and Political Rights (ICCPR) undermining accountability. In many cases, where and later the African Charter on Human and Peoples’ Rights journalists, editors or publishers have refused to be cowed (AChHPR) that committed them and their successors to into self-censorship by these criminal defamation laws, protecting and promoting human rights. These include the they have been subject to arrest, detention, prosecution right to freedom of expression – a right widely recognized and long drawn out trials, and sometimes imprisonment for not only as a cornerstone of democracy and democratic months or even years. accountability but also one that is key to every individual’s enjoyment of other civil and political rights as well as This report focuses on the continued retention of these their economic, social and cultural rights. Freedom of laws in four African countries and assesses the impact of expression, including the right of access to officially held their repeal, over 16 years ago, in a fifth. A brief survey was and other information, is also crucial to the concept of also undertaken with writers across the continent on the media freedom and the media’s ability to perform its vital impact of criminal defamation, libel and insult laws. In two public watchdog role. of the focus countries, Uganda and Zambia, the authorities continue to apply the laws criminalising defamation and In 2002, the African Commission on Human and Peoples’ insult with vigour and show little sign of dispensing with Rights (ACHPR), the body established to oversee the them. In two others, Sierra Leone and South Africa, the implementation of the African Charter by member states laws remain on the statute book but their governments have of the African Union, adopted a Declaration of Principles publicly pledged to abolish them and make defamation a on Freedom of Expression in Africa. The Declaration urged purely civil law matter. If and when they do so, they will be governments to ensure that any restrictions on expression following the example set in Ghana which, in 2001, became backed up by criminal sanctions were such that they the first country in Africa to decriminalise defamation. served a “legitimate interest in a democratic society.” In this report, we review and assess the impact, both Eight years later, the ACHPR specifically addressed the positive and negative, of decriminalisation in Ghana 16 issue of criminal defamation. In November 2010, it adopted years after the law was changed. a resolution urging all African Union states that have them to repeal their criminal defamation and insult laws, Many of the criminal defamation and insult laws in use in which the ACHPR said amount to “a serious interference” Africa today are relics of colonialism that were originally with freedom of expression and impede the media’s “role introduced principally to buttress colonial rule and repress as a watchdog.” 1 EXECUTIVE SUMMARY Recent years have seen a growing movement in Africa towards the decriminalisation of defamation supported by KEY FINDINGS: associations of journalists and other media professionals, press freedom groups, human rights organisations and • Just under half of the 38 writers and journalists from others, including the historic 2007 Declaration of Table 22 African countries who responded to a survey on the Mountain and the 2013 Midrand Declaration passed by the impact of criminal defamation and insult laws, indicated Pan-African Parliament. that the use of criminal defamation, libel and insult laws as well as laws criminalising sedition, “false news” These calls for repeal were given added impetus in 2014 and contempt of court, inhibit them in practicing their when the African Court on Human and Peoples’ Rights professions. Due to fear of prosecution under criminal (ACtHPR) handed down a landmark judgment in Konaté v defamation and/or insult legislation 16 of the respondents Burkina Faso, a case brought against Burkina Faso by Lohé have avoided writing stories because of these laws. Those Issa Konaté, editor of the weekly L’Ouragan newspaper, that feared to write stories because of these defamation who the authorities had jailed for one year in 2012 on and insult laws often would avoid writing stories on topics defamation, public insult and contempt charges. Ruling such as corruption, crime, justice and politics. that his imprisonment amounted to a “disproportionate interference” with the freedom of expression rights of • There has been some progress towards repeal of criminal Konaté and other journalists, the court ruled that Konaté’s defamation and insult laws since the Konaté judgment, for imprisonment violated Burkina Faso’s obligations under the example, recent court decisions in Zimbabwe and Kenya African Charter and instructed the Burkina Faso authorities have declared criminal defamation laws unconstitutional; to amend their law to prevent the occurrence of further however many countries still retain these laws. such violations. • Freedom of information laws are important in that they Despite this key judgment by the African Court and allow the media to gain access to government-held similar findings by national courts and