Case Summary and Outcome

The United Nations Human Rights Committee (UNHRC) held that Angola violated the right to freedom of expression of a journalist, under Article 19 of the International Covenant on Civil and Political Rights, by arresting, detaining, and sentencing him for criticizing the then-president of Angola, José Eduardo dos Santos. The petitioner, journalist Rafael Marques de Morais, was arrested and charged with defamation and libel after publishing several articles—and giving a radio interview—in which he accused dos Santos of corruption and destroying the country. After being arrested, Angolan courts convicted Marques of defamation and ordered him to pay a fine and compensation in favor of José Eduardo dos Santos, considering that his expressions were not protected by his constitutional right to freedom of expression, as this right was limited by the president’s right to honor and reputation. The UNHRC repeatedly requested Angola to provide observations about Marques’ communication to the Committee but received no response. Noting the State’s failure to cooperate, it gave due weight to the petitioner’s claims. In its decision, the UNHRC found that the restrictions against Marques’ freedom of expression were neither necessary nor proportionate. The Committee emphasized the critical role of freedom of expression in a democratic society and reiterated that public figures, such as the President, must be open to criticism. Given these findings, the UNHRC concluded that the sanctions imposed on Marques, including his imprisonment and fines, were disproportionate and violated his right to freedom of expression.

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Facts

Rafael Marques de Morais, an Angolan journalist, and representative of the Open Society Institute in Angola, published three articles on 3 July, 28 August, and 13 October 1999, in the independent newspaper Agora. In these articles, Marques criticized then-president José Eduardo dos Santos, accusing him of “the destruction of the country and the calamitous situation of State institutions” and “the promotion of incompetence, embezzlement and corruption as political and social values.” [para. 2.1]

On 13 October 1999, Marques was summoned by the National Criminal Investigation Department (DNIC) and questioned for three hours before being released. Later that day, he gave an interview to Radio Ecclésia, a Catholic radio station, in which he reiterated his criticism of dos Santos and described his experience with the DNIC.

On 16 October 1999, Marques was arrested at gunpoint by 20 armed members of the Rapid Intervention Police and DNIC officers at his home in Luanda, without being informed of the reasons for his arrest. Marques was first detained for seven hours at the Operational Police Unit and was subsequently interrogated for five hours by DNIC investigators, before being formally arrested but not charged.

From 16 to 26 October 1999, Marques was held incommunicado at the Central Forensic Laboratory (CFL) in Luanda, where he was denied access to legal counsel and his family. Moreover, in this period he “was intimidated by prison officials, who asked him to sign documents disclaiming responsibility of the CFL or the Angolan Government for eventual death or any injuries sustained by him during detention, which he refused to do.” [para. 2.4] The chief investigator stated that Marques was being held as a UNITA (National Union for the Total Independence of Angola ) prisoner.

On 29 October 1999, Marques “was transferred to Viana Prison in Luanda and granted access to his lawyer.” [para. 2.5] On the same day, his lawyer filed a habeas corpus petition with the Supreme Court, challenging the legality of the journalist’s arrest and detention. However, the application was neither assigned to a judge nor heard by an Angolan court.

On 25 November 1999, Marques was released on bail and informed for the first time of the charges against him. He was charged, along with the director and editor-in-chief of Agora, with defamation and slander against the then-president and the Attorney General—under Articles 44 and 46 of the Press Law (Law No. 22/91) and several provisions of the Penal Code. The conditions of Marques’ bail forced him “not to leave the country and not to engage in certain activities that are punishable by the offence committed and that create the risk that new violations may be perpetrated.” [para. 2.6] Marques repeatedly asked for clarification of the terms of his bail, but his requests were denied.

On 31 March 2000, the Provincial Court convicted Marques of “abuse of the press by defamation,” finding that his newspaper articles and radio interview contained “offensive words and expressions” against dos Santos. Marques was sentenced to six months’ imprisonment and a fine of 1,000,000 kwanzas. He was also ordered to pay damages to the then-president for 100,000 kwanzas.

On 4 April 2000, Marques appealed to the Supreme Court. On 26 October 2000, “the Supreme Court quashed the trial court’s judgment on the defamation count, but upheld the conviction for abuse of the press on the basis of injury to the President.” [para. 2.12] The Court held that the author’s actions were not protected by his constitutional right to freedom of expression, as this right was limited by other constitutional rights such as honor and reputation, and by “the respect that is due to the organs of sovereignty and to the symbols of the state, in this case the President of the Republic.” [para. 2.12] The Court upheld the prison sentence but suspended its application for five years. It also reduced the damages to the victim to 30,000 kwanzas.

On 11 November 2000, Marques unsuccessfully “sought to obtain a declaration confirming that his bail restrictions were no longer applicable.” [para. 2.13] On 12 December 2000, Marques was prevented from leaving Angola to attend a conference in South Africa, and his passport was confiscated. Although repeated requests were lodged, the passport was not returned until 8 February 2001, following a court order based on Amnesty Law 7/00. Despite this amnesty, Marques was later summoned to court and ordered to pay compensation to the then-president. He refused to pay the compensation.

On September 5, 2002, Marques submitted a communication before the United Nations Human Rights Committee (UNHRC), alleging that the actions of the State of Angola violated his rights to freedom of expression, liberty and security of person, liberty of movement, and to be equal before the courts and tribunals—as guaranteed by Articles 19, 9, 12 and 14 of the International Covenant on Civil and Political Rights (ICCPR). Marques argued that his arrest, detention, conviction, and the restrictions imposed on his freedom of movement, were a result of his public criticism of then-president dos Santos. He claimed that his statements were protected under the right to free speech, which allows citizens to openly critique and evaluate their government.

Repeatedly, throughout 2002-2004, the UNHRC requested Angola to provide observations about the petitioner’s claims. However, the State did not provide any information in response to the Committee’s requests. The UNHRC noted with regret Angola’s lack of cooperation and reminded the State that, under Article 4(2) of the Optional Protocol, States Parties have an implicit obligation to examine allegations in good faith and supply the Committee with all relevant information. The Committee highlighted that in the absence of a response from the State, it gave due weight to the petitioner’s claims, insofar as they were substantiated.

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Decision Overview

Due to the complexity of the case, the United Nations Human Rights Committee had to examine potential violations to different rights protected by the ICCPR. This case analysis will focus on the issues that concern freedom of expression. The main issue regarding this right that the Court had to analyze was whether the measures taken by the Angolan authorities against journalist Rafael Marques de Morais after criticizing then-president dos Santos in press articles and on a radio interview—including his arrest, detention, conviction, and restrictions on his freedom of movement —violated the applicant’s right to freedom of expression, as enshrined in Article 19 of the ICCPR.

Marques argued that the measures enacted against him for criticizing dos Santos violated his right to freedom of expression under Article 19 of the ICCPR. He claimed that the restrictions were not provided by law and were disproportionate and unnecessary in a democratic society. Marques stressed that his articles, which criticized dos Santos for encouraging corruption and incompetence, were part of a legitimate public debate about governance in Angola.

Angola did not provide any substantive response to the Committee’s requests for information on the merits of Marques’ submission.

At the outset of its analysis,  the Committee recalled, citing its own case law in Aduayom v. Togo, that the right to freedom of expression “includes the right of individuals to criticize or openly and publicly evaluate their Governments without fear of interference or punishment.” [para. 6.7] It then held that “any restriction on the right to freedom of expression must cumulatively meet the following conditions set out in paragraph 3 of article 19: it must be provided for by law, it must serve one of the aims enumerated in article 19, paragraph 3 (a) and (b), and it must be necessary to achieve one of these purposes.” [para. 6.8]

The UNHRC noted that Marques’ final conviction was based on Article 43 of the Press Law and Article 410 of the Penal Code. Considering this, the Committee went on to explain that even assuming that the arrest, detention, and travel restrictions imposed on the petitioner were based on Angolan law and pursued legitimate objectives—such as protecting the reputation of the then-president or maintaining public order—, “it cannot be said that the restrictions were necessary to achieve one of these aims.” [para. 6.8] On this point, the UNHRC stated that “the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect.” [para. 6.8]

In this case, the Committee emphasized that freedom of expression and a free, uncensored press are of paramount importance in a democratic society. In light of this, the UNHRC held that the severity of the sanctions imposed on Marques could not be deemed proportionate upon consideration of their aims: the need to protect public order or the honor and reputation of the President—who, as a public figure, is subject to criticism and opposition.

In addition, the Committee also considered as “an aggravating factor that [Marques’] proposed truth defence against the libel charge was ruled out by the courts.” [para. 6.8]

In sum, the Committee concluded that the State of Angola violated Article 19 of the ICCPR, as the restrictions on Marques’ freedom of expression were not justified, necessary, or proportionate considering the legitimate aims they pursued. Thus, the UNHRC held that Marques was “entitled to an effective remedy, including compensation,” [para. 7] and ordered Angola to take effective measures to prevent similar violations in the future.

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