Introduction [i]
The Bill that was enacted into the criminal libel law was introduced in Parliament in 1965 by Sir Albert Margai, the second Prime Minister of Sierra Leone. He, however, faced serious opposition from within and without Sierra Leone People’s Party (SLPP). In view of the foregoing, he influenced parliament to enact a law that would serve as a sledge hammer to silent his critics and members of the opposition. Parliament, nonetheless, enacted the Bill despite the serious opposition.
When the APC took power in 1968, it was expected that it would decriminalize libel. However, the APC retained the law it had strongly opposed in its entirety. Furthermore, this has been the case of successive governments over the years despite the fact that the said law negates Sec 25 of the 1991 Constitution and contravenes the right to freedom of speech. Additionally, succeeding governments have been using it to silent the opposition in the name of maintaining law and order and/or preventing threat to public safety and security.
Definition of Libel
Libel, according to Black’s Law Dictionary (Seventh Edition), is “[a] defamatory statement expressed in a
fixed medium, especially written but also a picture, sign, or electronic broadcast.” This means that libel does not only include mere writing but may also include symbols and caricature. There are two types of libel under the Public Order Act of 1965 of Sierra Leone; defamatory libel and seditious libel. Defamatory libel is basically the publication of a statement in a static form against a person, which is likely to expose the individual to public hatred, contempt or ridicule or to damage him in his trade, business, profession, calling or office. The most common form being written and printed words contained in newspapers, books, magazines etc . It can also be in a recorded form such as film, speech or effigy.
Seditious libel is defined as any attempt made by individual(s) in meetings, speeches or by publications to disturb the tranquility of the state by way of bringing hatred, contempt, or excite disaffection against the government or public authority. This means that a statement can only be deemed seditious libel when the complainant is disparaged in the estimation of right thinking members in the society and not merely in the minds of a particular section of the public. According to Lord Reid, “the ordinary citizen is neither usually suspicious nor usually naïve and does not interpret the meaning of a word as with a lawyer for he is not inhibited by knowledge of rules or construction.” Louise V Daily Telegraph [1937] 1KB 818.
The distinction between defamatory and seditious libel ( inter alia) is that, whilst defamation may be against ordinary citizens, sedition is said to be committed against public authority. That said, the rest of this article focuses on seditious libel since it has been the main cause of public concern.
Standard of Proof
A libelous statement must contain three elements before they are considered actionable. Firstly, it must be proved that the statement is false and defamatory. Secondly, the statement must refer to a particular person, even if it is an innuendo and thirdly, the statement must be published to at least one person excluding the plaintiff.
That said, the burden of proof rests solely on the prosecution. In addition, to prove seditious libel, the Prosecution must prove a seditious intention in the published material. The interpretation text (Sec 37 of the Public Order Act) defines seditious intention as an intention to bring into hatred or contempt or to excite disaffection against a public authority. Furthermore, the prosecution also needs to establish how much public disaffection or chaos the publication is likely to cause. This simply means that, no matter how much truth there is in the published material, it will not be considered as a defence for the accused. To this end, and given the circumstances under which the law was promulgated, one can only conclude that the primary purpose of the law is to provide undue shield for public officials from public scrutiny. Seditious libel, like the death penalty, are two of the most notorious laws Sierra Leonean authorities have continued to keep in the statute books for their personal safeguards contrary to the public good. In fact, the continued existence of these laws is only symptomatic of how Sierra Leone is swimming against the current tide in the international sphere, meaning while leaders of other countries are spearheading reform processes, Sierra Leonean authorities are much more enthusiastic about keeping bad laws, especially those that entrench them in power.
The Defence in Seditious Libel
As already stated, contrary to other jurisdictions, under Sierra Leonean laws the fact of the published material is not a defence for seditious libel. As long as the prosecution has proven that the material caused or is likely to cause public disaffection or chaos, the accused may be found guilty and thrown behind bars.
The question is, even if disaffection is the standard, how can the prosecution establish it? The Prosecution can only depend on presumptions and assumptions in establishing disaffection.. In law, a counsel cannot base his/her entire arguments on suppositions. There has to be evidence to prove or disprove a legal or evidential burden. Therefore, for one to be arrested or convicted of seditious libel, there must be evidence of something that actually causes disaffection among the people or causes the people to demonstrate violently and in extreme cases, rebel because of the hatred they bear for it based on what they have read or listened to the radio. In truth, it is very unlawful to prosecute and convict based on suppositions.
Moreover, in law it is also a defence in a libel suit that the statement is a fair comment on matters that have to do with the legitimate concern of the public. However, what is in the public interest is a question of law for the judge. Fair comment is inclusive of a comment that covers the conduct of government, public interest, works of art and literature produced for public consumption. The comment must not be activated by express malice which could be defined as corrupt/wrong motive or making use of the information for indirect purposes. The comment even if biased, wrong, exaggerated or prejudiced must be honestly made. In a decided case Christopher Miller v the Mail Newspaper [1991] All ER, it was decided that a press house cannot be convicted of libel for publication made in the interest of the public. However, in practice in the Sierra Leone Judiciary, fair comment is not a defence to seditious libel as could be seen in the case of President Ahmed Tejan Kabbah V Paul Kamara.
Reasons for the Proposed Amendments of the Criminal Laws
The current seditious libel law contain too many lacunas and therefore needs to be expunged. To start with, the law itself is draconian in the sense that it requires imprisonment for people expressing their views. Sec33, persons guilty of seditious libel will be imprisoned to a term up to 3 years or a fine or both that is, for first time offenders, for habitual offenders to a term not exceeding 7 years. Imprisoning persons who chose to express their views about public officials does not only undermine democracy, it amounts to cowering the press from speaking the truth about public officials, especially so when the facts will not be enough to serve as a defence in an event an action is brought against them.
Unlike Sierra Leone, leading jurisdictions such as the United States and Britain give the utmost protection to speech and little protection to public officials. In a landmark case, New York Times & Co. v. Sullivan. 376. US 254 (1964) it was decided that the United States of America cannot award damages under the First and Fourteen Amendments to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice.” Actual malice was defined as a statement made with knowledge of its falsity or with reckless disregard of whether it was true or false. The ratio decidendi was that, in order to ensure a democratic society the Government must not protect public officials as against the press. In the alternative the Government must always protect the publication of all statements, even false ones about the conduct of officials except when the statement is made with actual malice. The reason being that, in measuring the performance or deficiencies of an office, praise or criticism is usually attached to the official in complete control of the institution. Besides, it would also ensure transparency and accountability.
To illustrate that seditious libel is more for the protection of politicians than the public good, Sec 34 provided that action for seditious libel may only commence after the Attorney General (AG) have issued a written consent. The AG, by virtue of Sec 64 of Act No 6 of the 1991 Constitution of Sierra Leone, is not only the legal adviser to the state, nor is he only the person with power to prosecute on behalf of the state, but he is also a cabinet minister in the Government’s administration. That being the case, the matter becomes a political one. There is, therefore, every possibility to bring an action for seditious libel against persons that are only not in the good books of the Government.
To also illustrate that the law itself is unfair and prejudicial against the press; and it purpose is to cower the press, Sec 36 states that where a person convicted of an offence or attempt to commit or conspire to commit any offence under Secs 26, 27, 32 or 33, is a publisher, the court shall send the report of such a case to the president. Why inform the President? Why not handle it in a competent court of law? This clearly undermines the independence of the judiciary.
Furthermore, Sec 36(2) of the Act also granted power on the Governor-General now the president, either in his opinion or due to a court recommendation the right to prohibit the publication of the newspaper in which the defamation, sedition, or false statement was published for a term not exceeding 6 months. It further states that any person who refuses to comply with that order shall be guilty of an offence and liable on conviction to imprisonment for 18 months. This provision accords too much power on the president and thus undermines the rule of law and the doctrine of separation of powers. Instead of the president, the court or the Independent Media Commission should have been given the authority to determine, in the interest of public safety, public order or morality whether or not to prohibit the newspaper. Moreover, giving the president such powers will make the matter one with political undertone as it has always been.
The Public Order Act of 1965 is inconsistent and contravenes the 1991 Consttution which is the grundnorm of Sierra Leone. It is an outright violation of Sec 25 of same, which guarantees the rights of individuals and organizations to hold opinions, impart ideas and information without interference. It further hinders the enjoyment of a persons rights to freedom of expression.
In Conclusion
Candidly speaking, no one is canvassing for the total repeal of the Public Order Act of 1965. Every civilized nation needs a set of laws that will regulate public order in the interest of public good and not against it. Therefore, all civil society have been asking for is an amendment of the obnoxious sections of the Public Order Act of 1965. As it stands now, the Public Order Act of 1965 does not only contravenes the spirit and letters of sections of the 1991 Constitution of Sierra Leone but also international and regional human rights instruments including the International Covenant on Civil and Political Rights, the Universal Declaration of Human and Peoples Right and the African Charter on Human and Peoples Right to which Sierra Leone has an obligation.
Some people at the helm have been asking for the alternative to seditious libel. The SLCMP believes that there is substantial remedy in civil suit. This is premised on the fact that there is distinction between saying, for instance: “Public Official X has stolen x amount of millions of Dollars of public fund and therefore should be sacked” and “let’s overthrow the government by forceful means and take over the reigns of power”. Whilst the latter statement may constitute an incitement that may lead to public disorder which is a crime punishable by law, the former does not in any way warrant criminal charges against the individual who may be safeguarding public interest. If, however, Public Official X feels aggrieved of the statement, he may as well file a civil suit.
That said, the Sierra Leone Association of Journalists (SLAJ) has the responsibility to regulate the conduct of its membership. It must institute regulations that will minimize and even help eradicate members caught in the act of prostituting the good image of the press.
It is clear that the present government is not enthusiastic about decriminalizing libel. However, given that the country is approaching an election period, SLAJ should galvanize it membership and coalesce with other civil society groups to get the presidential aspirants to commit themselves to decriminalizing libel after wining elections. SLAJ can only succeed in doing so when it works as a team. Remember, a divided
house cannot protect itself!!!
[i] This article was first published in Volume 15, July-August 2006. It is republished to rekindle the debate for the decriminalization of libel