Sierra leone News

THE PRESS, FREEDOM OF EXPRESSION AND DEMOCRACY IN SIERRA LEONE

Written by O.R. Awoonor-Gordon

Saturday, 21 March 2009 11:53

The 1991 Democratic constitution of the Republic of Sierra Leone specifically protects press freedom – unlike many other constitutions in Africa and around the world. Section 25(1) of the constitution forbids the hindering of “Freedom of expression… the freedom to hold opinions and to receive and impart ideas without interference… freedom to own establish and operate any medium for the dissemination of information, ideas and opinions, and academic freedom in institutions of learning”

Constitutions, however, are merely words written on paper. To make the freedoms contained within them real requires struggle and sacrifice. The focus of this paper is on the struggle for freedom of expression and of the media in the fifteen years or so since the 1991 constitution was promulgated. This struggle is ongoing and I hope this paper will go some small way in helping to achieve the objective of ‘unhindered’ freedom of expression outlined in the nation’s democratic constitution.

Background

The 1991 constitution was drafted at a time when the old One Party State was collapsing. The All Peoples Congress Party (APC) won power in 1967 after free and fair elections. However, the party was prevented from taking office after a coup which was organized with the tacit involvement of senior members of the then (and now) ruling Sierra Leone Peoples Party (SLPP), which had governed the country from independence in 1961 to 1967.

It was the S.L.P.P which introduced the Public Order Act (1965). The Act contained draconian sections on what constituted ‘defamatory and seditious libel’. The APC, in its 1967 election manifesto, pledged itself to repeal this Act and also to abolish what they at the time described as ‘anti-democratic’ legislation – such as the moves towards declaring a Republic and a One Party State Bill.

After a short military interregnum, the APC took power in 1968. It promptly reneged on most of its pre-election promises. A Republic was declared in 1971. The One Party State came into existence in 1978. And the Public Order Act was never repealed. Indeed the APC introduced new legislation – the Newspaper (Amendment) Act (1980) which gave the ministry of Information the right to ‘give, withhold or suspend’ the right to publish a newspaper.

Public Order Act: criminalizing opinion

The Public Order Act (1965) is, specifically, the greatest single threat to freedom of expression in the media. It also limits freedom of assembly, freedom of movement (i.e. in its prohibition of ‘rogue and vagabond’ Section 8) and limits the right to hold peaceful processions) (3).

Its defamatory and seditious libel clauses (Section 26 – 37) are a real and constant obstacle to the rights of freedom of expression and of the media. We shall briefly examine some of these clauses below.

Section 26 defines ‘defamatory libel’ as publication of any material regarding any person (deceased or alive), which is likely to expose that person to “public hatred, contempt or ridicule or to damage him in his business, trade, profession, office or calling”

Though, fortunately, the provisions against defamatory libel have never, (or should we say ‘not yet’), been brought against the media by a deceased person, this section has been the basis for successful prosecution and jailing of at least one journalist in recent years

Seditious libel has an even more ominous content.

Section 33 of the Public Order Act lays down the penalty of three years imprisonment and/or a fine of Le 1,000 (at the time, 1965, equivalent to 500 pounds sterling) for a first offence.

“For a subsequent offence (he/she)…shall be imprisoned for a term not exceeding seven years and every such seditious publication shall be forfeited to the government”.

But what constitutes a ‘seditious publication’ as defined by the laws of Sierra Leone?

A seditious intention under the Public Order Act (1965) involves an intention: “to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, her Heirs or successors, or the Governor General or the Cabinet or the administration of the Government of Sierra Leone as by law established” Section 37(1).

Seditious libel also includes the intent to bring into hatred and contempt the administration of justice in Sierra Leone or to encourage or promote feelings of ill-will or hostility between persons of different tribes, nationalities or different religious faiths in Sierra Leone (Sections 37(ii) (iv). The parameters of these definitions are broad enough as to outlaw any legitimate criticism or comment on the actions of a President, Government or indeed, any government official.

However some other pertinent facts should be noted here if we are to appreciate the full repressive intent of the defamatory/seditious libel sections of the Public Order Act (1965).

Firstly, truth does not constitute on defence in cases of defamatory libel.

Section 28(1) makes it clear that: “On trial of an offence of (defamatory) libel… the accused having pleaded such plea as hereinafter mentioned, the truth of such matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published”.

Secondly, the accused has the onus of proving that he/she published the defamatory libel in public interest. In short the accused is presumed guilty unless he/she can show that he/she had a legitimate reason for publishing the allegation. “The matter charged in the alleged libel complained of by such a charge shall be presumed to be false and the truth thereof shall in no case be inquired into in absence of such a plea as mentioned in subsection 1” (Section 28 (3)).

Thus the only defence against a charge of criminal libel is the plea that it was published in the ‘public interest’. You are guilty until you prove yourself innocent – using just this plea.

This is a pernicious piece at legislation flies in the face of 1,000 years of jurisprudence which assumes an accused is considered innocent until he/she is proven guilty by the prosecution. What makes matters worse is that the Criminal Jurisprudence Act (1965) abolishes jury trials for those charged with defamatory or seditious libel.

So not only is the accused bound to prove that matters bringing powerful individuals onto contempt were published in the ‘public interest’; he/she has to prove that to the satisfaction of a judge appointed by the government itself.

Sam Hollist, editor of We Yone, the official organ of the opposition APC between 1961 and 1967, believes that the provision for trial by judge alone was introduced to stop the frequent acquittals of journalists by sympathetic juries. Hollist, the first journalist to be jailed under the Public Order Act (for three months in 1965, soon after the Public Order Act became law) notes that “the inclusion of this provision, relating to trial by judge alone, was not unconnected with setbacks. The prosecution – and by extension the then SLPP government – was having over seditious libel trials involving… the opposition press.

The Jury was almost always returning a verdict of “Not Guilty” resulting in acquittal and discharge of the said journalists by the court. Moreover, after such incidents, a crowd of supporters would surge into the premises of the court, it would carry shoulder high the free pressmen, singing and dancing with them through some of the highways of Freetown.

The Public Order Act (1965) may have been promulgated as a political law to curb a troublesome opposition in the 1960s. But it has proved so useful to succeeding governments that none of them have repealed it.

The APC, which held power from 1968 till overthrown in 1992, used it frequently. As already mentioned, it also used other judicial and extra-judicial measures to crush opposition.

The National Provisional Ruling Council (NPRC), the military junta which overthrew the APC in 1992 and ruled for four years, used it against the New breed newspaper which had quoted a Swedish daily Expressen alleging that Valentine Strasser, NPRC’s first leader, had taken a huge diamond abroad for sale.

And the Sierra Leone Peoples Party (SLPP), finally returned to power in 1996, brought in three cases of seditious libel against the press within a year of its re-instatement. Without going into details of any of these cases; two factors, common to all the cases, must be mentioned here.

One, there has never been a successful defence against a charge of defamatory/seditious libel; the accused either went to jail or in a (typically Sierra Leonean) ‘arrangement’ the accused was forced to retract and apologise for the offending newspaper article.

Two, to my knowledge, all cases of criminal defamatory/seditious libel which went to the High Court (i.e. beyond Preliminary Investigations stage, at magistrate’s court) have been brought by a government official, judge or the government itself. Indeed, no prosecution under the seditious libel sections of the Public Order Act can be brought without the written consent of the (government appointed) Attorney General (Section 34 (2): Public Order Act).

On any scale of impartial or fair jurisprudence, the Public Order Act, and especially its criminal and seditious libel sections, would fail the test. But as remarked upon earlier, the struggle against this repressive law has been consistent and is still ongoing.

The struggle

Just as every government has found the Public Order Act (1965) indispensable and has used it against critical expressions of opinion; likewise every government since 1965 has been engaged by press and public over its use of measures to stifle freedom of expression.

Seen in its correct context, stripped of narrow partisan associations, the struggle against the Public Order Act by the press and its supporters has been part of the wider struggle to secure, consolidate and expand the democratic freedoms of all Sierra Leoneans.

The struggle to protect freedom of expression and, by extension, freedom of the media, is just one front in the wider war to achieve the freedom of Sierra Leoneans – to achieve victory of the Democratic Revolution.

The Democratic Revolution has been raging for close to three decades in Sierra Leone since the Fourah Bay College anti-APC demonstrations of 1977.

There have been victories and there have been set-backs. But this peaceful struggle continues.

We will limit ourselves here to examining the struggle for freedom of expression since 1991, when the democratic, multi-party constitution was introduced. Sierra Leone’s present constitution was passed into law in October 1991. Barely six months later, on April 29, 1992, it was suspended in the wake of the NPRC coup.

The coup was universally popular. It ended 24 years of de facto and de jure One Party Rule (8) and displaced a regime widely seen as corrupt and incompetent. However, the young officers who led the coup had a relatively short honeymoon with the Sierra Leonean press. As mentioned earlier, the New Breed case led to the arrest, detention and later the trial of editor Julius Spencer and 8 other journalists on charges of seditious libel for reproducing the Swedish Expressen article alleging that Head of State, Valentine Strasser, had taken a huge diamond abroad to sell.

The trial is of significance for several reasons:

Firstly, that the Judge Justice Massallay, exclaimed in open court, that he was “not unfettered in this matter”. In later conversations, he said that threats of direct force had been made against him if he did not quickly reach a ‘favourable’ verdict in the New Breed trial.

The second point of interest was that New Breed’s lawyer was one Solomon Berewa, later to become a member of the NPRC’s Advisory Council, and, as SLPP Attorney General from 1996 – 2002, one of the foremost proponents of the use of the Public Order Act against journalists.

Solomon Berewa, in his earlier incarnation as a defender of press freedom, challenged the Public Order Act on the basis that it conflicted with entrenched clauses of the 1991 constitution guaranteeing the freedoms of the press and freedom of expression.

Berewa argued that key clauses of the constitution protecting human rights had not been suspended by the state of Emergency or the NPRC’s decrees. To my knowledge, Berewa became the first lawyer to argue, in court, that the 1965 Public Order Act was obsolete and its repressive sections on defamatory and criminal libel conflicted with the tenets of the Democratic constitution. He quoted section 171(15) of that document: “This Constitution shall be the Supreme Law of Sierra Leone and any other law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency, be void and of no effect.”

The argument that the provisions of the Public Order Act – the obligation of the accused to prove he/she published the allegedly seditious/defamatory material in public interest, trial by Judge done, recommendation of seizure/banning of seditious materials – conflicted with section 25 of the constitution remains one of the most powerful arguments for freedom of the media and freedom of expression ever made in a court of law.

How ironic that the same man, barely three years later, was to become one of the most ardent proponents of the Public Order Act and worst enemies of press freedom. However the struggle against the Public Order Act was taken up by the Sierra Leone Association of Journalist even before the return to Democracy in 1996.

A SLAJ sub-committee began working on the modalities for repeal of both the Newspaper Registration (Amendment) Act (1980) and the Public Order Act in 1995.

The author, who served as secretary to this sub-committee, recalls that journalists were as eager as anyone else to ensure that repeal of the various Acts did not lead to abuse of the democratic process.

The idea of creating an Independent Media Commission to adjudicate disputes between press and public was SLAJ’s brain child. SLAJ also recommended that existing penalties for civil libel be left on the statute boots.

However, journalists were unanimous in calling for repeal of the Public Order Act which, according to my notes, “was a sword of Damocles hanging over the head of every journalist in this country. It [the Act] is used by the powerful to muzzle the press and is totally inconsistent with Democracy and the Constitution.”

The democratically elected SLPP government came to power in March, 1996. Within six weeks, then SLAJ secretary general (O.R. Awoonor-Gordon) and vice-president Ibrahim El-Tayib Bah presented the then minister of Information George Banda-Thomas with proposals for an Independent Media Commission and abolition of the Public Order Act (1965). The SLPP government ignored and then altered these proposals and even brought in stiffer legislation regarding media regulation – which was only aborted by the May 25, 1997 coup.

Years of war and disruption did not end agitation for repeal of the POA. In 2002, SLAJ formed the ‘Free Paul Kamara Committee’ to agitate for release of the For Di People editor, jailed for six months on two counts of defamatory libel of a High Court Judge

Amongst the Committee’s mandate was to work for abolition of the POA. Demonstrations were organised. Petitions circulated and posters/banners hung up. Paul Kamara was finally released after serving his prison term in early 2003.

Kamara was soon in trouble again – this time with an even more powerful opponent. President Ahmad Tejan Kabbah brought a suit for criminal libel against the FDP editor for his description of Mr. Kabbah as a ‘convict’ for his indictment in 1969 by the Beoku-Betts Commission of Inquiry, which looked into fraud and corruption allegations regarding cocoa/coffee deals when Kabbah was acting as Permanent Secretary at the Ministry of Trade in the first SLPP administration.

After a trial widely seen as unfair (Kabbah’s civil service records were not allowed to be submitted in evidence and the judge made highly prejudicial remarks during the course of the trial), Paul Kamara was sentenced to two years imprisonment. His conviction was struck down, in 15 minutes, in 2005 by the Appeal Court headed by a foreign judge.

SLAJ has now decided, with the support of organizations like the New York-based Committee to Protect Journalists, Article 19 and other foreign human rights organizations, to challenge the constitutionality of the POA. A Supreme Court challenge to the validity of this law is currently pending.

In this struggle, SLAJ has received support from various local organizations. Writing in the Annual Report (2005) of the Lawyers Centre for Legal Assistance (LAWCLA) Oju R. Wilson notes that several sections of the POA “are in direct conflict with the constitution”. “Because the Public Order Act is in conflict with one Constitution,” Wilson writes, ‘which is the supreme law of the land, it should be amended to remove the conflict”.

As Sierra Leone approached nationwide general and presidential elections in 2007, only one of the three leading parties, the Peoples Movement For Democratic Change, has pledged to scrap the POA. Both the SLPP and the APC, while in power, made free use of its draconian sections, and have said nothing explicit about repealing or abolishing the Act. It therefore remains SLAJ’s duty to fight the law which muzzle press freedom and freedom of expression for all Sierra Leoneans.

Olu Gordon is editor of Peep! Magazine, a Freetown-based newspaper