There seems to be a general apprehension among public officials about enabling the environment for the press to operate freely in most African countries, so much so that they are prepared to treat journalists as criminals. Ironically, these public officials and their friends and relatives want to be celebrated as populists, yet they are reluctant to part ways with the tendencies and laws promulgated by dictators to protect themselves in power. Contradiction!
Just days after Liberian President Ellen Johnson Sirleaf submitted the bill to repeal criminal defamation laws to the Legislature, howbeit belatedly, the fear of the press has apparently been reinforced. There are members of the public and some in officialdom suggesting that “to repeal criminal defamation is to make the press frisky and more unethical,” as though the laws are being kept as weapons against the press.
Unfortunately, a large portion of the legal community even thinks the same way. There are lawyers and judges who believe that the only way to “teach journalists lesson” is to throw them behind bars. Perhaps this is the only means to satisfy their clients. A foreign colleague normally jokes that the Liberian legal system is “obsessed with punishment.”
Actually, there can be no repudiation of the citizens’ legitimate right to seek legal recourse against media houses and journalists in cases where people’s reputations have been wrongly and willfully maligned in erroneous news reports. But such cases should be considered civil matters, not criminal offenses, punishable where appropriate by direct compensation and/or repair of injured party’s reputation.
Financial compensation in civil libel cases notwithstanding, should be determined on realistic evaluation of actual damages and the ability for the media outlet to pay, among other considerations. Excessive judgments or penalties, like the one imposed (rightly or wrongly) on Rodney Sieh and the Front Page Africa in the case Vs Chris Toe, is simply intended to restrain or shut down the operation of the media. These kinds of actions, amount to official censorship and an infraction of constitutional guarantees of freedom of expression. I would like to leave civil libel argument for another day, but the scale of the law suits we have witnessed against the media since the inception of the administration of madam President, is unbelievable. These suits have negative implications and chilling effect on journalists.
Whenever there is an attempt, in good faith or otherwise, to legislate the ethical conduct of journalists, it leads to undue restrictions on their legitimate freedoms to practice, but it also places limitations on the unhindered flow of information.
Ironically still, Liberia enacted the first Freedom of Information Law in West Africa in 2010, but the country remains keen on punishing its citizens for using those information it has declared freed – as demonstrated in the government’s grab on criminal defamation laws. Contradiction!
Criminal defamation is simply contrary to the spirit and intent of the FOI – the two cannot work together. I therefore beg our lawmakers to please abolish criminal libel and accept greater reform of media laws.
The demand for quality and/or ethical journalism should never be used by governments as a prerequisite for enabling press freedom. On the contrary, according to a publication on Self-regulation by the Organization for Security and Co-operation in Europe (the OSCE), “ethical journalism can only develop in an atmosphere of guaranteed freedom. Journalists’ self-restraint must be preceded and accompanied by governmental self-restraint in handling of media.”
Under Liberian laws, criminal cases are prosecuted by the state, so it is common sense to conclude that when the government prosecutes speech and journalists in criminal charges as it were in criminal libel, it actually treats them as criminals, unfortunately. Journalists engaged in the act of journalism, are not criminals and should never be treated as one. With all intents and purposes, journalism is a human right activity that all governments must protect.
The Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the African Convention on Human and Peoples’ Rights, the Declaration of Principles on Freedom of Expression in Africa, the Declaration of Table Mountain and many other regional and international instruments, obligate member states to conform.
Pointedly, like the Declaration of Table Mountain, the African Commission on Human and People’s Rights Resolution 169, declared in November 2010 that “criminal defamation laws constitute a serious interference with freedom of expression and impedes on the role of the media as a watchdog, preventing journalists and media practitioners from practicing their profession without fear and in good faith.”
The Resolution therefore “calls on States Parties to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter… ”
Further to the above, a joint statement by freedom of expression rapporteurs around the world also declared that, “Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”
Do politicians and members of the public ever take a moment to check why there is a consistent global appeal for the defense and safety of journalists? Journalists and all those engaged in acts of journalism are, at best, public interest agents. In other words, journalists act on behalf of the community, the society and even the government whether it feels offended or comfortable by their work. Unavoidably, journalists formed the bedrock for democratic development regardless of the misgivings. Journalism is here to stay; the onus is on us to make it better.
It needs to be stated here that the repeal of criminal libel will not merely benefit the media, but also political and civil society activists. It benefits prosecutors of the media, it benefits even those who are lawmakers and the rest of those in society who maybe be worried about “giving the media more freedom.” I dare say it also benefits judges. Repeal of criminal libel would reinforce and guarantee citizens’ rights to freedom of information under the Constitution of Liberia. This reform is also in the political interest of the current government, and all future Liberian governments.
I commend the President for submitting the bill, but that’s not enough. She must join the lobby to have the lawmakers act upon it. I should also challenge civil society organizations, political activists, student leaders, human rights activists and all those interested in an open society to impress upon the legislators to please repeal criminal defamation.
Criminal Defamation Laws
By: Peter Quaqua