African Union rapporteur leads campaign for East and Horn of Africa states to decriminalise defamation

Press release

ARTICLE 19 welcomes the new campaign for decriminalising defamation in East and Horn of Africa being led by the African Union’s Special Rapporteur on Freedom of Expression and Access to Information, Commissioner Pansy Tlakula.

“Criminal defamation laws are nearly always used to punish legitimate criticism of powerful people, rather than protect the right to a reputation. The African Commission itself has recognised in their Resolution 169 that such criminalisation seriously interferes with the right to freedom of expression and the role of the media, and has called on states to decriminalise. We welcome the Special Rapporteur’s leadership on this new campaign to turn the African Commission’s recognition into action,” said Henry Maina, ARTICLE 19 Eastern Africa Director.

“ARTICLE 19 calls for immediate steps by governments to ensure that any criminal defamation laws still in force be abolished and replaced with civil laws and remedies,” added Maina.
The meeting in Burundi to plan the campaign, co-sponsored by ARTICLE 19 and the first in Eastern Africa, brought together government, media and civil society representativesfrom across the region to plan national campaigns for decriminalising defamation in Burundi, Djibouti, Ethiopia, Kenya, Rwanda, South Sudan, Sudan, Tanzania and Uganda.

Participants to the meeting:

• Highlighted specific national laws to be targeted for repeal
• Outlined capacity building and advocacy activities for public officials and the media to raise awareness on decriminalising defamation
• Identified alternative remedies to criminal defamation and proposed their adoption, including international and regional principles that need to be domesticated into national laws
• Stressed the use of international mechanisms to ensure the international obligations of states are met and implemented, in particular: the UN Plan of Action on the Safety of Journalists and the Issue of Impunity.

Criminal defamation in the East and Horn of Africa mostly stems from old colonial-laws that have not been reformed, plus a few more recent adoptions. All criminal provisions contradict the states’ constitutional protection for the right to freedom of expression, and regional and international law.
States in the East and Horn of Africa often use existing criminal penalties for defamation to threaten, gag and punish the media and others who criticise.

ARTICLE 19 has consistently advocated for the repeal of criminal defamation laws since they fail to strike the appropriate balance between the right to freedom of expression and the right to a reputation. We believe that all criminal defamation laws should be abolished and replaced, where necessary, with proportionate civil remedies.

Until criminal laws are abolished in the East and Horn of Africa, ARTICLE recommends that existing laws conform fully to the following conditionsin order to limit the negative impact of criminal defamation:

• Excessive sanctions should be abolished, such as prison sentences, suspended prison sentences, heavy finesand suspension of the right to practice journalism or any other profession
• Public officials, public bodies or entities such as the flag or state should be prohibited from instituting criminal defamation actions
• Where criminal prosecutions by private persons are possible, the participation of public authorities, including police and public prosecutors, should be ruled out of the initiation or prosecution of criminal defamation cases.
• Nobody should be convicted for defamation unless the accusing party proves,beyond a reasonable doubt that: the statement in question was false; the person making the statement knew it was false or showed reckless disregard as to its truthfulness; and the statement was made with the intention of causing harm to the accusing party.