PEN South Africa Pushes to De-Criminalise Defamation at Pan-African Parliament

29 Mar 2018
PEN South Africa Pushes to De-Criminalise Defamation at Pan-African Parliament

By Nick Mulgrew & Khanya Mncwabe

PEN South Africa[1] – together with colleagues from PEN International[2], PEN Nigeria[3], PEN Uganda[4], the Press Council of South Africa[5] and attorney Simon Delaney – recently attended the Sitting of the Permanent Committees of the Pan-African Parliament (PAP), convened in Midrand from 2-9 March 2018. The following brief is drawn from a substantive report compiled by PEN South Africa’s Centre Co-Ordinator, Nokukhanya Mncwabe.

PEN representatives addressed the Pan African Parliament’s Committee on Justice and Human Rights, calling for the repeal of insult and criminal defamation laws in all AU member states. Citing the findings of a study it had undertaken, PEN highlighted that in most African states, defamation constitutes a crime that sets in motion the entire state prosecution apparatus, and for which the sanction is imprisonment. PEN noted with concern that the threat of prosecution for the infringement of criminal defamation and “insult” laws – the latter ostensibly intended to uphold the dignity of state officials and national symbols and for which conviction may be secured on the basis of a subjectively insulting utterance, irrespective of its factual validity – frequently has the effect of intimidating or silencing political dissenters and critics.

PEN appealed to African states to abolish criminal defamation and insult laws, which stifle free expression and press freedom, and to adopt in their stead a civil approach so that defamation is recognised as a legal dispute between two private parties, incurring only pecuniary sanction. PEN also drew attention to the potential of non-judicial mechanisms such as national human rights institutions, press self-regulatory mechanisms and the like, as alternative fora in which to address defamation concerns and by which to sanction errant journalists. The Press Council of SA, drawing from its own experience, pointed out that a transparent, independent press regulatory body that incorporates press, judicial and civilian representation, can effectively “uphold [the] right to free expression and a free press, promot[e] ethical journalism and adherence to high ethical standards, all of which are needed to elevate public discourse.”

PEN further urged the committee to recall the Resolution of the African Commission for Human and People’s Rights (ACHPR) 169: Resolution on Repealing Criminal Defamation Laws in Africa (2010), which “calls on States Parties to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments”; and also to recall the Midrand Declaration on Press Freedom in Africa (2013) which “calls upon the AU Member States to use the ACHPR Model Law on Access to Information in adopting or reviewing access to information laws.”

PEN International noted that the respective PEN Centres’ presence at the Pan-African Parliament was aimed at encouraging “the committee to take forward the issues in the Midrand Declaration”, and to present the findings of their research resulting from close collaboration with the United Nations Democracy Fund (UNDEF), the Decriminalisation of Expression Campaign (DOX) Africa and the African Commission on Human and Peoples’ Rights

Attorney Simon Delaney reiterated that muzzling journalists “sets a bad precedent”, and encourages journalists to “engage in self-censorship for fear of being investigated, having their homes raided, or being sent to prison.” He noted further that the consequence of self-censorship is an undermining of “the quality and volume [and ultimately] the stifling of public debate.”

PEN Uganda affirmed this, noting that the research on defamation undertaken in Uganda had found that, “defamation has a chilling effect on writers and journalists,” with “many journalists prefer[ing] to shift focus to soft stories, like sports and entertainment, rather than investigative journalism.” One journalist interviewed had opted to quit the profession altogether.

A member of the Justice and Human Rights Committee was of the view that in certain instances defamation is not the sole preserve of private parties: he cited as an example the situation where journalists write defamatory untruths either in service to or as a result of manipulation or “influence” of old colonial powers or the West. However, as PEN Nigeria pointed out, in most cases criminal defamation laws in Africa are remnants of colonial-era laws, which functioned “to protect colonial administrators”. PEN Nigeria concluded that these laws “effectively infantilize Africans” as colonial powers were inclined to do.

PEN Nigeria posited that contemporary times call for these laws to be abolished, particularly in the light of the existing international best practice on which we can draw. PEN Nigeria was encouraged, however, by Ghana’s progress, which had in twenty years shifted from criminalising defamation to implementing the civil oversight and regulation of the media landcape. This was hailed as an advancement, particularly as criminal defamation fails to take into account new challenges confronting freedom of expression, the press and the right to dignity, most notably the emergence of new media contributors who are not members of the press corps, for example bloggers, vloggers, social media influencers, etc. who have the capability “to disseminate mistruths anonymously and at speeds previously unimagined.

It is the hope of all the abovementioned PEN Centres that the issue of the repeal of criminal defamation laws in AU member states will be given the attention it merits to ensure that freedom of expression, freedom of the press, and human rights more generally are robustly promoted and protected throughout the continent.

(Image courtesy of UNICEF Ethiopia/Nahom Tesfaye, used via a CC-BY-ND licence.)

[1] Represented by Centre Co-ordinator, Nokukhanya Mncwabe
[2] Represented by International Deputy Director, Romana Cacchioli
[3] Represented by Tade Ipadeola
[4] Represented by President, Danson Kahyana
[5] Represented by Executive Director, Latiefa Mobara