Introduction
Despite a global shift toward decriminalisation, 160 countries still maintain criminal defamation laws. These laws are often justified as targeting disinformation, misinformation, cybercrime, or hate speech. However, they frequently include vague language or impose disproportionate punishments, which can negatively impact media freedom and pose a broader threat to freedom of expression. While a few African countries have adopted the decriminalisation regimes, many countries still maintain strict defamation laws. In South Sudan, criminal defamation is frequently used for stifling journalists and restricting press freedom, thereby obstructing the nation’s democratisation efforts.
This article underscores the critical need to reform criminal defamation laws in South Sudan, drawing insights from the landmark case of Konaté v. Burkina Faso (Konaté case) decided by the African Court on Human and Peoples’ Rights. The case established that stringent criminal defamation laws violate the right to freedom of expression and media freedom, as safeguarded by international human rights standards.
By analysing the principles from the Konaté case, this article advocates for the decriminalisation of defamation in South Sudan and the adoption of civil remedies that balance individual reputation protection with the need for a free and independent press. Finally, it critically examines South Sudan’s current legal frameworks, highlighting the inconsistencies and ambiguities that allow for the misuse of criminal defamation against journalists.
Summary of the facts of the Konaté case
In August 2012, journalist Lohé Issa Konaté published two articles in the newspaper L’Ouragan, accusing a state prosecutor of corruption. In response, the prosecutor filed a complaint against Mr. Konaté and a co-defendant, accusing them of defamation, public insult, and contempt of court. Criminal charges were filed against both, along with a demand for damages.
In October 2012, the Ouagadougou High Court found Mr. Konaté guilty, sentencing him to one year in prison, a fine of $3,000, and ordering him to pay $9,000 in damages to the prosecutor. Additionally, the court suspended L’Ouragan, the newspaper that published the articles, for six months. The Ouagadougou Court of Appeal later upheld this decision. In June 2013, an application was filed on behalf of Mr. Konaté before the African Court on Human and Peoples’ Rights (ACHPR), arguing that the severe penalties violated his right to freedom of expression as protected under article 9 of the African Charter on Human and Peoples’ Rights, article 19 of the International Covenant on Civil and Political Rights, and article 66(2)(c) of the Treaty of the Economic Community of West African States (ECOWAS), all of which Burkina Faso is a party to. The application was submitted by the Media Legal Defence Initiative (MLDI).
Decision of the African Court on Human and Peoples’ Rights (ACHPR) and its implication
The Court evaluated the legality of Burkina Faso’s defamation laws in light of international treaties, focusing on whether criminal penalties for defamation unjustifiably restricted freedom of expression. The Court applied a three-part analysis: clarity of the law, legitimacy of the purpose, and necessity of the limitation. It found that Burkina Faso’s laws met the first two criteria, as they clearly defined restrictions and aimed to protect individuals’ reputations, which served a public interest. However, the Court determined that the criminal penalties were disproportionate and unnecessary, particularly when speech involved public figures. The Court’s analysis centered on whether the criminal penalties were proportionate to the goal of protecting the prosecutor’s honour. It emphasized that any penalties imposed should be strictly necessary to achieve the intended objective. The Court also noted that there should be even less interference when the speech in question pertains to public debate involving public figures. The Court concluded that the criminal penalties imposed by Burkina Faso’s defamation laws were disproportionate. It further argued that criminal penalties might be categorically inappropriate for defamation cases, as civil remedies are sufficient to prevent the publication of defamatory content.
In its final judgment, the Court ruled that Burkina Faso had breached its obligations under article 9 of the African Charter on Human and Peoples’ Rights, article 19 of the International Covenant on Civil and Political Rights, and article 66(2)(c) of the ECOWAS Treaty. The Court ordered Burkina Faso to amend its domestic law to reflect that criminal penalties for defamation are not permissible. In addition, Mr. Konaté was entitled to seek reparations from Burkina Faso, subject to the submission of a brief on the matter.
The lesson from this landmark decision is that defamation laws imposing criminal penalties will only be considered acceptable restrictions on freedom of expression in extremely rare cases. Consequently, while the decision is only directly binding on Burkina Faso, African states that are parties to the African Charter on Human and Peoples’ Rights are effectively prohibited from using criminal charges for defamation without breaching the Charter’s protections for freedom of expression. The ruling is especially important as it has set a precedent against criminal defamation across the continent. Joining Burkina Faso, Togo, and Ghana, twenty-seven countries, many of which have low press freedom rankings, have committed to adhering to the African Court’s decision. In Uganda, the case was cited by a journalist while requesting that a judge dismiss his criminal defamation charges. The judge asked for a copy of the ruling for review, and subsequently dismissed the criminal defamation charges against Mr. Kalyegira on 30 September 2015 due to the state’s failure to present evidence.
Overview of defamation laws and their implications in South Sudan
Defamation in South Sudan is governed by Sections 5 & 28 of the Media Authority Act 2013 and Sections 289, 290, 291, 292, 75 and 76 of the Penal Code Act 2008.
Section 75 of the Penal Code Act criminalises publishing or communicating information deemed “prejudicial to South Sudan,” including false statements or those that could incite disorder, harm public services, affect national defence or economy, undermine confidence in law enforcement, or disrupt essential services. Section 76 imposes additional restrictions on statements about the President or Acting President, particularly those that could incite hostility, cause ridicule, or involve abusive or obscene language. Section 289 defines criminal defamation as making statements intended to harm someone’s reputation, punishable by up to two years in prison, a fine, or both.
Section 28 of the Media Authority Act allows individuals and legal entities to sue organizations or journalists for defamation. It sets criteria for defamation claims, including public statements, identification of the complainant, the defamatory nature of the statement, its falsity, and resulting harm. The Act distinguishes between private complainants, who must show negligence, and public officials, who must prove malice. Defamation is treated as a civil offense, with complaints first handled by the Press and Broadcast Complaints Council. However, section 5 of the Act contradicts this by defining defamation as criminal matter in line with the Penal Code, creating a conflict with section 28 that treated defamation solely as a civil matter. The current practice is that defamation cases against journalists and media outlets are adjudicated by the criminal courts contrary to the law.
The Commission for Human Rights in South Sudan reported that defamation laws are misused, including baseless prosecutions against journalists covering corruption. One notable instance is the case of Zechariah Makuach Maror, who reported on corruption allegations involving the then-Minister of Finance, Hon. Salvatore Garang Mabiordit. In September 2020, he was prosecuted and convicted of defamation, but was acquitted on appeal two months later after the President dismissed the Minister.
Lessons for South Sudan
The Konaté ruling establishes that governments should not criminalise defamation. It is the first case in Africa to set such a high benchmark for freedom of expression, creating a significant precedent for the continent. The Konaté case emphasised that criminal penalties for defamation are disproportionate and civil remedies are sufficient. As a State party to the African Charter, South Sudan should decriminalise defamation, shifting it from a criminal to a civil matter, as criminal sanctions have the potential to be abused to silence dissent.
The UN Special Rapporteur and various international and regional bodies advocate for replacing criminal defamation laws with civil laws, arguing that civil laws adequately protect reputations without threatening freedom of expression. They highlight that criminal defamation laws, especially those involving imprisonment, pose a significant risk to free speech. The African Commission’s Resolution 169 calls for the repeal of such laws that impede free speech, urging adherence to regional and international freedom of expression standards. The UN Human Rights Committee (UNHRC) also recommends decriminalising defamation, stressing that criminal defamation should be reserved for the most severe cases, with imprisonment never being an appropriate penalty, as such cases can have a chilling effect on free expression. It is, therefore, important that South Sudan aligns its legal frameworks with international and regional human rights standards.
Conclusion
South Sudan’s Transitional Constitution of 2011 guarantees freedom of expression, press freedom and access to information. However, these rights are often constrained by other laws and practices including but not limited to criminalisation of defamation. The government is commended for establishing a progressive legal framework through various policy reforms. For example, the Media Authority Act (2013), the Broadcasting Corporation Act (2013), and the Right of Access to Information Act (2014) which offer some opportunities for promoting press freedom and access to information. However, these legislative frameworks stand in sharp contrast to the Penal Code Act 2008 and the National Security Act 2014 which restrict the media’s ability to operate freely and criminalises defamation and libel.
Despite the presence of these progressive laws, there are clear gaps that need to be aligned with the international human rights standards particularly the provisions on criminalisation of defamation and limitation clauses. Alongside the recommendations from the UN Special Rapporteur, the UN Human Rights Committee, and various international and regional bodies, the Konaté case provides a critical framework for South Sudan to decriminalise defamation. South Sudan has an obligation to review and repeal legislations that conflict with the right to freedom of expression, particularly by aligning Section 5 with Section 28 of the Media Authority Act and ensure that any restrictions on freedom of expression are limited to exceptional circumstances, grounded in law, and meet the criteria of necessity and proportionality. By doing so, South Sudan can foster a media environment that upholds free speech and access to information which are essential pillars of democracy and good governance.
The author, Mayen Mangok Ruop, holds an LLB (First Class Honours) from the University of Juba, winning the Nyot Kok prize for the best student. He holds a Master of laws in Environmental and Natural Resources Law from the University of Nairobi, Kenya and is currently an LLM Candidate in Human Rights and Democratisation in Africa at the University of Pretoria. He is also a Candidate of General Master of Laws (LLM) at the University of Juba. He holds a Certificate in Legal Practice (LP), from the South Sudan Bar Association and is a senior Associate at City Law & Co. Advocates, Juba, South Sudan.
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