SUPREME COURT UPHOLDS LIBEL LAW

UNCLAS SECTION 01 OF 02 FREETOWN 000453 SIPDIS DEPARTMENT FOR AF/W (JHUNTER) E.O. 12958: N/A TAGS: PGOV PHUM KJUS SL SUBJECT: SUPREME COURT UPHOLDS LIBEL LAW ¶1. Summary: On November 10, Sierra Leone's Supreme Court dismissed a suit brought by the Sierra Leone Association of journalists (SLAJ) that sought to repeal portions of the 1965 Public Order Act criminalizing libel, nearly two years after the action was instituted. The country's journalists' association asked the Supreme Court to interpret certain portions of the 1965 Public Order Act, and also consider repealing the part that criminalizes libel. SLAJ argued that the provisions of the Act contravene the country's 1991 constitution and inhibits free speech. The Supreme Court dismissed the suit in its entirety, saying that the Act requires no further interpretation and that it poses "no imminent threat" to journalists. SLAJ said they are disappointed by the ruling, but will continue to urge the President to make good on his pre-election promise to review and possibly repeal it. The judicial ruling, however, could leave the President with very little maneuverability on this issue. End Summary. ¶2. SLAJ filed a complaint with the Supreme Court in February 2008, challenging the constitutionality of certain portions of the 1965 Public Order Act. The 1965 Public Order Act stipulates prison terms of one to three years for the malicious publication of "defamatory matter," and denies truth as a defense. SLAJ asked the Court to determine the following questions: (1) whether the provisions of those portions of the Public Order Act criminalizing libel without the caveat of truth contravene the right of freedom of speech guaranteed by the constitution; and (2) whether the provisions of those sections can be demonstrably justifiable in light of Sierra Leone's obligations under international conventions. SLAJ also asked the Court to grant declaratory judgment regarding the following: that the sections criminalizing free speech are unconstitutional, and therefore null and void; and the restricting the right of freedom of expression under Section 25(2) of the Constitution does not (save the provisions of Section 26, 27, 32-36) and cannot be demonstrably justifiable in a democratic society. ¶3. SLAJ argued that the law poses a threat to press freedom, and that it is neither reasonable nor necessary in a democratic society. Three senior journalists submitted affidavits to the Court detailing their harsh experiences with the libel law. Final arguments were presented before the 
Court on March 9, 2009, and the Court was required to hand down a verdict within the constitutionally-mandated time limit of three months. In June, SLAJ implemented a five-day media blackout on the judiciary protesting the Supreme Court's failure to rule on the case within the stipulated timeframe. The protest was called off after President Koroma assured SLAJ that he would urge the Supreme Court to hand down a verdict. ¶4. The Supreme Court's judgment dismissed the SLAJ motion in its entirety. The Court found no ambiguity in the words used both in Section 25 of the Constitution or the portions the 1965 Public Order Act in question. The Court also said the first question of the motion seemed to indicate an "application" of the law and not an "interpretation" of it. Even if that were the case, it ruled that such a claim must "be based on a factual situation and must not be speculative and hypothetical as the present case." The Court also dismissed the two declaratory claims on the grounds that they did not meet the strict standards required for granting declaratory judgment on constitutional questions. Among others, it said that to warrant a declaratory judgment, an applicant must have proven that he or she has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he or she has suffered in some infinite way common with people generally. Furthermore, it said SLAJ could not prove that "its legal rights have been infringed or likely to be infringed nor the exclusive suffering it has sustained or likely to sustain." ¶5. On November 13, SLAJ issued a press release expressing its disappointment at the judgment. It dismissed the judgment as the "toughest legal setback for the struggle for press freedom, media pluralism and freedom of expression in Sierra Leone in recent times, with far reaching implications for professional media practice and democratic governance." SLAJ said it would, however, continue to urge President Koroma to make good on his pre-election promise to review the law. The government has not issued any official statement on the ruling. ¶6. Comment: Koroma showed a willingness to work on this issue, though he never committed to repealing it: this is in direct opposition to the stance of former President Kabbah, who used the libel sections of the law to file suits against his detractors. However, SLAJ myopically painted Koroma into FREETOWN 00000453 002 OF 002 a corner by filing the suit and pushing for a legal decision, which makes it all but impossible for him to request a review without giving the appearance of Executive Branch interference with judicial independence. Given the Court's history of bias in favor of the Public Order Act - one justice filed numerous successful libel suits, and the Chief Justice has historically ruled against journalists in such cases - SLAJ would likely have been better-served by focusing their energy on garnering civil society and popular support for a Presidentially-mandated review. This strategic error could mean that the Public Order Act will continue to stand in Sierra Leonean jurisprudence for years to come. End Comment. CRISS