Kahiu v. Mutua
Closed Mixed Outcome
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The Court of Cassation in Tunisia upheld a rap singer’s and actress’s convictions for public indecency following their use of indecent gestures in a YouTube clip for the rapper’s song, “El Boulisya Kleb” (“Cops are dogs”). The two had initially been charged with “outrage of a public officer” as well as public indecency and had been convicted on both charges in the Court of First Instance. The Court of Appeal overturned the convictions of “outrage of a public officer” but upheld the convictions on the public indecency charges, and the Court of Cassation held that there was no reason for it to overturn the Court of Appeal’s decision as it found the law had been applied correctly.
On March 10, 2013, the Tunisian rap singer Alaa Eddine Yaakoubi (known as “Weld el 15” – translated as “the 15-year-old boy”) published a video clip on Youtube for his rap song “El Boulisya Kleb” (translated as “Cops are dogs”). The video clip featured expressions like “cops are dogs”, defamatory statements, threats against police officers and indecent gestures (namely a middle finger gesture) performed by a female actress. The Attorney General learnt of the Youtube clip and opened an investigation to identify the parties involved in the work.
On March 21, 2013, the Court of First Instance found Weld el 15 and the actress guilty of “outrage of a public officer” by words, gestures and threats under article 125 of the Criminal Code, and of public indecency under article 226 of the Criminal Code. The content of the song (lyrics and gestures) formed the basis of both charges.
Article 125 states: “Anyone who, by words, gestures or threats outrages a public officer in the exercise of their duties is punished with one year imprisonment and 120 dinars fine (approximately US$ 44 in 2020).”
Article 226 states: “Anyone who knowingly commits public indecency is punished with six months’ imprisonment and a fine of 48 dinars (approximately US$ 18 in 2020).”
Article 125 has often been used in Tunisia by security forces to silence and threaten citizens, and the courts have generally found in favour of the security forces. There is no definition of “public indecency” in the Criminal Code and so the interpretation of article 226 has been left to the courts.
Weld el 15 and the actress appealed the decision. The Court of Appeal of Tunis partially overturned the lower court’s decision: it found no grounds for the outrage of a public officer conviction but upheld the public indecency conviction for the hand gestures. The Court of Appeal confirmed the lower court’s suspended sentence of six months’ imprisonment for Weld el 15 but reduced the actress’s sentence to a 300 diners fine (approximately US$109 in 2020).
Weld el 15 and the actress and the Attorney General all appealed the decision to the Court of Cassation.
The Court of Cassation sat as a three-court bench and delivered a unanimous decision. The central issue for the Court to determine was whether the Court of Appeal’s decision had been correct.
Weld el 15 and the actress argued that the lower courts had applied article 125 incorrectly, and submitted that security forces officers are not public officers and that, even if they were, article 125 requires the victim to be “in the exercise of their duties”, which had not been verified in this case. They also argued that article 226 had been applied incorrectly as the actress’s gesture was made in the context of playing her part in the music video clip in which she was interpreting a character and therefore there could be no criminal intent.
The Attorney General argued that the Court of Appeal’s decision had failed to provide sufficient justification for its finding that there were no grounds for the outrage of a public officer charge and that the Court had changed the actress’s prison sentence to a fine without engaging in a full legal analysis.
The Court did not discuss the controversial nature of “outrage of a public officer” and “public indecency”. The Court explained that it had no jurisdiction to review the lower court’s reasoning on the facts (unless there was a lack of proper argument in the lower court which was not the case in the present case) and so it was confined to questions of law. It added that as it was a court of law and not of facts, it could not contradict the lower court’s discretion unless the law had been incorrectly applied.
The Court held that the Court of Appeal had not misrepresented the facts and that its reasoning was sufficient. In addition, it held that the Court of Appeal had committed no procedural errors to justify overturning the decision. Accordingly, the Court upheld the Court of Appeal’s decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In upholding the Court of Appeal’s acquittal on the contempt of a public officer charge, the Court expanded the right to freedom of expression – especially as article 125 was a notorious provision, frequently used in Tunisia to suppress public expression. However, in upholding the public indecency conviction it restricted freedom of expression through artistic expression and blurred the line between performance and genuine personal opinion. In addition, in refusing to examine the nature of the provisions on the ground that it could not override the lower Court’s opinion the Court appeared to avoid its responsibility to interpret legislation and create strong precedent in favour of freedom of expression, and – by stating that it could not contradict the lower Court – the Court ignored its ability and responsibility to fully adjudicate cases on appeal.
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