National Security, Public Order, Defamation / Reputation
Mwenda v. Attorney General
Closed Expands Expression
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The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) held that the offences of sedition, false news and criminal defamation in The Gambia Criminal Code violated the right to freedom of expression under international law. The case was taken by one representative organisation, the Federation of African Journalists, and four other Gambian journalists living in exile who had been prosecuted and detained under The Gambia’s oppressive media laws. Two of the individual journalists had also been tortured while in detention. The ECOWAS Court held that criminal sanctions for sedition, defamation, and false news had “a chilling effect that may unduly restrict the exercise of freedom of expression of journalists” and ordered The Gambia to amend its laws to bring them into conformity with international law. The ECOWAS Court also found violations of the right to liberty, the right to freedom of movement, and the prohibition on torture. The journalists were awarded damages of between 1 million and 2 million Gambian Dalasi (approximately USD20 000 to USD 40 000 in 2018).
Four journalists from The Gambia and the Federation of African Journalists (representing Gambian journalists more generally) approached the Community Court of Justice of the Economic Community of West African States seeking a declaration that the criminal offences of sedition, false news and defamation in The Gambia violated various journalists’ rights under international law. One of the journalists had been arrested in 2013 on charges of false news and had fled to the United States (via Senegal). [pg. 3] Another of the journalists had been arrested and convicted of sedition and false news in 2008. She had paid the fine of 250 000 Gambian Dalasi (approximately USD5000 in 2018), but then also fled The Gambia and lives in the United States. [pg. 4] Another journalist had been arrested in 2013, tortured in custody, charged with sedition and, having been denied bail, kept in detention for seventeen months until he was acquitted of all charges. He then fled to Senegal. [pg. 4]
The journalists argued that the offences of sedition, defamation and false news infringed their right to express and disseminate their opinions under Article 9 of the African Charter on Human and People’s Rights (African Charter), the right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and the rights of journalists under Article 66(2) of the Revised Treaty of the Economic Community of West African States (ECOWAS Treaty). They also argued that the detention and torture they experienced infringed the right to liberty and security under Article 6 of the African Charter and Article 9 of the ICCPR. Furthermore, the fact that their prosecutions had caused them to flee The Gambia meant their right to return to The Gambia under Article 12(2) of the African Charter and Article 12(4) of the ICCPR was infringed (pg. 5). The journalists sought an order compelling The Gambia to repeal the laws under which they had been charged or for the country to otherwise amend the laws so as to “meet its obligations under international law including under the African Charter, the ICCPR and customary international law”. [pg. 6] In addition, the journalists sought reparations and specific relief in respect of the torture experienced by two of the journalists in custody. [pgs. 6-7]
An intervention was filed by an international coalition comprising Amnesty International, Article 19, Canadian Journalists for Free Expression, Committee to Protect Journalists, Freedom House, PEN International, Reporters Without Borders, and the Right 2 Know Campaign (South Africa). Interventions were also filed by the Redress Trust and the UN Special Rapporteur on the Freedom of Opinion and Expression (David Kaye).
Nwoke J presided over a three-judge bench which also included De Ceu Silva Monteiro and Sall JJ. The main issue for determination was whether the laws of The Gambia on sedition, criminal libel and false news infringed the rights of the journalists under international law. [pg.33] The laws in question were sections 51, 52, 52A, 59, 173A, 179, 180, 181 and 181A of The Gambian Criminal Code, Cap 10:10 of 2009 (GCC).
The journalists argued that the criminal laws in The Gambia had “affected their profession as journalists making it practically impossible for them to freely disseminate information for public interest”. [pg. 32] In addition, they submitted that “the fear of being re-arrested, prosecuted and tortured [by the state] … in future has forced them to remain in exile”. [pg. 32] The journalists argued that the impugned provisions of the Criminal Code were “inconsistent with and a breach of The Gambian obligations as a member of ECOWAS to protect human rights and comply with its international obligations”. [pg. 33] The application of the laws “interfered with their rights as journalists by instilling fear of potential arrest and prosecution in them thereby having a chilling effect on their freedom of expression as journalists”. [pg. 33] The journalists recognised that the right to freedom of expression can be limited, but submitted that the laws themselves are not “formulated with sufficient precision” as the definition of sedition “is based on subjective reactions of the reader” and the definition of defamatory material “does not establish an objective standard as to enable the writer [to] determine ahead of the publications whether the publication will fall within the definition of defamatory matter”. [pg. 33] In respect of the false news offence, the journalists argued that errors in journalism are unavoidable but that the existence of criminal liability for these errors infringes the right to freedom of expression. [pg. 33-34] In addition, the journalists argued that the false news provision “has not been shown to serve any legitimate purpose”. [pg. 34] The journalists highlighted that it was the definitions of “seditious intent” (in section 51 GCC), “defamatory material” (in section 179 GCC), “publication for purposes of criminal libel” (in section 180(2) GCC) and “false news publication” (in section 59 GCC) that rendered the offences impermissible. [pg. 38-39]
The Gambia argued that the provisions did “satisfy the requirements of a good law”, and that the “interpretation of what is harmful or offensive to the reputation of others are culturally and politically relative” and so the laws’ subjectivity did not infringe the ICCPR and the African Charter. [pg. 34] The Gambia argued that the offences did not disproportionately infringe the rights to freedom of expression as they provided for the option of a fine and not only imprisonment as a sanction. [pg. 34]
The Court recognised the fundamental importance of the right to freedom of expression and remarked that the right “is not only the cornerstone of democracy, but indispensable to a thriving civil society”. [pg. 32] It then discussed the nature of the right, and noted that the rights to information and to expression are not absolute: article 19(3) of ICCPR attaches specific duties and responsibilities to the rights, and so allows for limitations which are “provided by law and necessary for the respect of the rights and reputation of others and the protection of national security or public order, public health or morals”; and the African Charter recognizes that the right to expression and disseminate opinion under articles 9(2) and 27(2) must be “exercised within the law, and with due regards to the rights of others, collective security, moral and common interest”. [pg. 35]
The Court then undertook an analysis of the history of the criminal sanctions challenged in the present case. It explained that church courts were first set up in England by King William I to try crimes of false allegations and that these courts were replaced by the king’s courts which imposed fines on defamers. [pg. 35] The Court recognized the impact the invention of the printing press had on the “production and circulation of political tracts”, and that this led to the establishment of the “court of the Star Chamber to affirm and protect royal authority”. [pg. 36] This Chamber punished criticisms which appeared to be “capable of bringing the government to disrepute” and did not consider the truth or falsity of the content of the criticism. [pg. 35]
With reference to the U.K. cases of R v. Holbrook (1878) 4 QBD 42 and R v. Labouchere (1884) 12 QBD 320 the Court noted that “criminalizing defamation therefore was born out of the need to prevent breaches of peace/public order and secondly to preserve state security”. [pg. 36] The Court noted that the U.K. case of Gleaves v. Deakin  AC 477 had recognized that the ancient need for criminal defamation had been superseded by the modern civil action for defamation. In that case, Lord Diplock stated that “the reason for creating the offence was to provide the victim with the means of securing the punishment of his defamer by peaceful process of the law instead of resorting to personal violence to obtain revenge. But risk of providing breaches of the peace has ceased to be an essential element in the criminal offence of defamatory libel; and the civil action for damages for libel and on injunction provides protection for the reputation of the private citizen without the necessity for any interference by public authority with the alleged defamer’s right to freedom of expression.” [pg. 36-37] The Court also referred to the Zimbabwean case of Madanhire v. Attorney General CCZ 2/14 which had held that criminal defamation was “not reasonably justifiable in a democratic society”. [pg. 37]
In examining the definitions of the offences in the present case, the Court described the definitions as “expressions of inexactitude” and held that that the legislative definitions were “so broad as to be capable of diverse subjective interpretations”. [pg. 40] The Court noted that this “indeed amounts to censorship on publication”. [pg. 40] The Court held that there was clearly a violation of the right to freedom of expression and that “[t]he existence of criminal defamation and insult or sedition laws are indeed unacceptable instances of gross violation of free speech and freedom of expression”. [pg. 40] It added that the provisions also restricted the right of access to public information. The Court held that “[r]estrictions on the freedom of speech must be couched in the narrowest possible terms to enable speakers to appreciate the boundary between legality and illegality in their speeches/actions”. [pg. 40]
The Court undertook a detailed analysis of comparative international and foreign law on the right to freedom of expression and the impact of vague criminal offences on the enjoyment of the right. It referred to the UN Human Rights Committee’s General Comment 34 which had “highlighted a free and uncensored media as [the] bedrock of a democratic society” [pg. 40] and to the Indian case of Ramlila Maidan Incident v. Home Secretary Union of India (UOI)(2012) S SCC 1 which had described freedom of expression as “the mother of all liberties”. [pg. 42] The Court explained how the The Gambian law had a chilling effect on journalism and, with references to the US case of New York Times v. Sullivan 376 U.S. 254 (Sullivan) noted that “[n]arrowly drawing offences has been treated as particularly important in the case of free speech because of what is known as ‘chilling effect’ which occurs when a wide or vague speech-restricting provision forces self-censorship on speakers … because they do not want to risk being caught on the wrong side of it” [pg. 41] and to the Zimbabwean case of Madanhire v. Attorney General which had recognized the way in which the offence of criminal defamation can “stifle and silence the free flow of information in the public domain”. [pg. 44] In this respect the Court also referred to the European Court of Human Rights case of Lingens v. Austria No. 9815/82 8ECHR 407 which had noted that criminal fines “would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community”. [pg. 42]
The Court also quoted Sullivan’s recognition that an “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need … to survive” [pg. 43] and that placing the burden of proving the truth of a reported statement on the journalist has the result of deterring criticisms of official conduct. [pg. 44]
The Court referred to the European Court of Human Rights case of Castells v. Spain Application No 11798/85 which had stated that “the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings” [pg. 43] and to the African Court on Human and Peoples’ Rights decision in Konaté v. The Republic of Burkina Faso App No. 004/2013 which had noted that individuals in “highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether”. [pg. 46]
The Court quoted the then-UK Secretary of State at the Ministry of Justice, Claire Ward, when she announced the repeal of the offences of seditious libel, defamatory libel, obscene libel and sedition in 2010. Ms Ward had warned that the continued existence of the offences in the UK “had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom”. [pg. 44-45]
The Court recognized the Inter American Court on Human Rights decision in Kimel v. Argentina (2008)which had held that criminal defamation was a disproportionate infringement of the right to freedom of expression. The Court also referred to the European Court of Human Rights case of Altug Taner Akcam v. Turkey App. No 27520/07 which held that the lack of foreseeability in the laws meant that there had been an infringement of Article 10 [pg. 46] and to the case of Otegi Mondragon v. Spain App. No. 2034/07 which had held that the “nature and severity of the penalties imposed are factors to be taken into consideration in assessing the ‘proportionality’ of the interference”. [pg. 46]
The Court concluded that “[i]n analysing the criminal laws of the Gambia, one can certainly infer that these laws do not guarantee a free press within the spirit of the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights”. [pg. 47] It held that criminal sanctions for sedition, defamation, and false news “has a chilling effect that may unduly restrict the exercise of freedom of expression of journalists”. [pg. 47] Accordingly, the Court held that “the criminal sanctions imposed on the applicants are disproportionate and not necessary in a democratic society where freedom of speech is a guaranteed right under the international provisions cited”. [pg. 47] It held that the provisions “cast excessive burden upon the applicants in particular and all those who would exercise their right of free speech and violates the enshrined rights to freedom of speech and expression under Article 9 of the African Charter, Article 19 of the ICCPR and Article 19 of UDHR”. [pg. 47] The Court ordered that “the legislations on sedition, criminal libel, defamation and false news publication of The Gambia be reviewed and decriminalized to be in conformity with the international provisions on freedom of expression and consonance with the Defendants obligation under Article 1 of the Charter”. [pg 48]
The Court also held that the laws – which were used to arrest and detain the journalists – were infringements of the journalists’ rights to liberty and security of the person [pg. 55] and that the treatment that some of the journalists experienced in detention amounted to inhuman and degrading treatment. [pg. 60]
The Court ordered The Gambia to “immediately repeal and/or amend its laws … in line with its obligations under international law”, [pg. 61-62] and awarded damages of 2 million Gambian Dalasi (approximately USD40 000 in 2018) to the journalists who had experienced torture, and 1 million Gambian Dalasi (approximately USD20 000 in 2018) to those who had not been tortured in detention. [pg. 62]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Community Court of the Economic Community of West African States confirmed that the criminal offences of sedition, false news and criminal defamation are infringements of international law and ordered The Gambia to repeal all laws that criminalize such conduct.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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