ARTICLE 19 has closely followed the criminal defamation trial of journalist Madiambal Diagne before the Dakar criminal court following a complaint from Judge Ousmane Téliko, President of the Union of Magistrates of Senegal. The court ruled for a sentence of six months’ imprisonment, three of them suspended, and a fine of 600,000 XOF (USD 1,085) on 17 June, 2021.
Madiambal Diagne is the Director of Avenir Communication, publisher of the newspaper le Quotidien. On 29 March 2021, when speaking on the “Grand Jury” program on Radio Futurs Media (RFM), the journalist claimed that a European Union report stated that Judge Souleymane Teliko had improperly claimed mission expenses for accommodation in Chad when those expenses had already been paid by the Chadian government. In response to this accusation, Téliko accused Diagne of defamation. On 17 June 2021, the Dakar Criminal Court delivered its ruling and convicted Diagne of criminal defamation against Justice Téliko. The six-month prison sentence followed, including a three-month detention period and a fine of 600,000 XOF ($1085). In addition, the journalist will have to pay 5,000,000 XoF (USD 9,046) to Téliko for the damages suffered. The court also ordered him to publish this decision in local newspapers, under penalty of 100,000 XOF (USD 180.86) for each day of delay.
In response to this sentence, Alfred Nkuru Bulakali, Deputy Regional Director of ARTICLE 19 Senegal and West Africa insisted that defamation, libel and similar press offenses should not be criminalised and should remain civil matters.
“Prison sentences against journalist Diagne in this case are disproportionate. They will not only deprive the journalist of his liberty but also the public of the right of access to information. Custodial sentences have a dissuasive and intimidating effect on other journalists, who may opt for self-censorship, fearing judiciary reprisal and prison.
ARTICLE 19 has repeatedly raised concerns against legal provisions of the Senegalese media laws that criminalise press offenses such as libel, and defamation as they threaten freedom of speech and a free press. It is urgent for Senegalese authorities to repeal all these provisions and bring their legislation in line with international standards on freedom of expression and media. Authorities should refrain from applying custodial sanctions against journalists in favour of civil sanctions, which should also be necessary and proportionate as recommended by international human rights bodies. Civil sanctions should further ensure a defence of truth. Senegalese democracy needs laws that can fully guarantee free press,” Bulakali said.
Diagne has appealed the decision, which ARTICLE 19 has encouraged. ARTICLE 19 also calls on the judicial authorities to take into account international freedom of expression standards, especially the decisions of regional human rights bodies and courts when adjudicating on this matter.
Criminal defamation constitutes a violation of freedom of expression and the right to information. African and international standards are clear that criminal defamation is not a justifiable restriction on freedom of expression and that all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.
Specifically, the Declaration of Principles on Freedom of Expression and Access to Information clearly states that public figures should tolerate more criticism than ordinary citizens and that sanctions for defamation should never be so severe as to interfere with the right to freedom of expression. States are also reminded that custodial sentences for defamation violate the right to freedom of expression and that criminal defamation laws should be repealed.
The African Court of Human and Peoples’ Rights and the Economic Community of West African States (ECOWAS) Court of Justice unequivocally condemned the use of custodial sentences against journalists for defamation and libel.
A case for comparison in Burkino Faso
In the case of Journalist Lohé Issa Konaté v. Burkina Faso the African Court decided in its hearing of 15 December 2014 that Burkina Faso violated Article 9 of the African Charter on Human and People’s Rights (the Charter) and Article 66 (22) of the ECOWAS Treaty, as well as Article 19 of the Covenant on Civil and Political Rights (ICCPR) because of the prison sentence handed down to Konaté and the order that he had to pay excessive fine and damages. The African Court ordered Burkina Faso to amend its legislation on defamation to comply with Article 9 of the Charter, Article 66(2) of the ECOWAS Treaty and Article 19 of the ICCPR by repealing custodial sentences and adapting other sanctions to make sure they meet the test of necessity and proportionality.
Furthermore, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression stated in a joint declaration that criminal defamation is not a justifiable restriction on freedom of expression; and reiterated that all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.
ARTICLE 19 advocates for governments to end criminalisation of defamation. In the of set of principles developed to guide governments to deal legally with defamation, ARTICLE 19 recommends that prison sentences and any other form of deprivation of liberty, excessive fines, and other harsh penalties should never be available as a sanction for breach of defamation laws.
Eliane NYOBE, Senior Program Assistant, ARTICLE 19 Senegal/West Africa: [email protected] Tel: +221 77 553 13 87 or +221 33 869 03 22
Or Aissatou Diallo Dieng, Executive Assistant, ARTICLE 19 Senegal/West Africa at E: [email protected] T: +221 33 869 03 22 or
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ARTICLE 19 urges authorities in Niger to immediately and unconditionally release the journalist and blogger Samira Sabou, who has been arrested and detained for more than a month on defamation charges. The authorities have increasingly used the repressive Cybercrime Act to prosecute journalists and to overturn the press regime that actually protects journalists against criminal charges for press offenses including defamation.
“It is unacceptable to criminalize journalists for doing their work. It is a serious violation of press freedom and people’s right to information, including online. Samira Sabou must be released unconditionally and any further criminal proceedings against her must be dropped.”, said Fatou Jagne Senghore, Regional Director of ARTICLE 19 in West Africa.
Samira Sabou was arrested and charged with “defamation by electronic means of communication” on 10 June under Article 29 of Niger’s cyber-crime law. The defamation complaint against her was reportedly filed by Sani Issoufou Mahamadou, the son of the Nigerien President and Deputy Director of his cabinet.
After a month in detention, she was tried by a court of Niamey on 14 July 2020. The judge will issue the verdict on 28 July 2020. Sources in the judiciary and local newspapers reported that the prosecutor requested a one-month and a one week sentence and a fine of one million CFA francs [about 1,500 euros].
Her arrest followed a post on her Facebook page on 26 May relating to financial embezzlement in the Ministry of Defence around military material procurement revealed by an audit. In her post, Samira Sabou did not mention any name.
The arrest of Samira Sabou for posting an article on this case is not an isolated case. The editor of the Courier, Ali Soumana, was arrested on 12 July, also under the cyber-crime law. When he was brought before a judge two days later, he was released. Such arbitrary arrest, prosecution and detention of journalists for their comments online are a violation of Niger’s legislation on freedom of press.
“The arrest and continued detention of Samira Sabou for raising matters of public interest will have chilling and intimidating effects on all journalists reporting on corruption and accountability. It is time the government and courts stop criminalizing expression and the suppression of the press and other dissenting voices,” added Fatou Jagne Senghore.
“The Coronavirus epidemic has shown us once more that we need strong independent media to inform citizens and to ensure transparency, citizen engagement and accountability”.
Niger’s press freedom legislation violated
“Niger’s press law of 2010 explicitly prohibits detention of journalists for doing their work. But contrary to this law, the Cybercrime Act criminalises defamation and other online offences, in violation of international human rights standards on freedom of expression”, deplored Fatou Jagne Senghore.
The repressive provisions of the law on cybercrime should not apply to journalists. The press regime in Niger governs the work of all journalists and any communication issued by them to provide information in the exercise of their duties.
The press law only allows for fines as sanction against defamation by a journalist, no matter whether it is on or offline. The authorities should immediately amend the cybercrime law, and bring it in line with Niger’s press law and its international human right obligations.
As the first Head of State to sign the Declaration of Table Mountain in 2011, which specifically calls for the elimination of criminal defamation and insult laws and brings press freedom back to the forefront of debate in Africa, President Mamadou Issoufou explicitly demonstrated his support for press freedom.
“The President must give effect to the pledge he made when he signed the Declaration of Table Mountain and ensure that Samira Sabou is unconditionally released and all charges against her are dropped. The President needs to instruct government officials and state institutions to refrain from filing defamation complaints”, urged Fatou Jagne Senghore
Niger’s international obligations
By charging Samira Sabou with a criminal offence and detaining her for more than a month, Niger is ignoring its own legislation on the press, which exclude any custodial measure for defamation, as well as Niger’s international obligations and regional court decisions.
Authorities in Niger must abide by international human rights standards that call on states to decriminalise defamation and other press offences.
The UN (United Nations) Human Rights Committee (HRC) is clear that defamation should not be punished with imprisonment. Already in 1999, the UN Special Rapporteur on Freedom of Opinion and Expression stated in his report that ” Penalties for defamation should not be so severe as to have a chilling effect on freedom of opinion and expression and the right to seek, receive and impart information; penal sanctions, in particular imprisonment, should never be employed”. The Rapporteur later called on states to abrogate all criminal defamation laws and replace them with civil legislation.
In December 2002, in a jointly issued statement, the three UN, Organization for Security and Co-operation in Europe(OSCE) and Organization of American States (OEA)pecial Rapporteurs on Freedom of Expression called on states to end criminal defamation, stating that it “is not a justifiable restriction on freedom of expression and that all criminal defamation laws should be repealed and replaced, if necessary, by appropriate civil legislation”.
In its latest review of the Universal Periodic Review before the Human Rights Council in 2016, Niger accepted recommendations to guarantee freedom of expression and assembly online and offline, prevent the detention of journalists, and guarantee protection for human rights defenders on the protection of freedom of expression.
The African Court of Human and Peoples’ Rights and the ECOWAS Court of Justice unequivocally condemn the use of custodial sentences against journalists for defamation.
Shrinking civic space linked to the pandemic
There is a growing tendency to restrict press freedom and civic space in Niger. In the last two years, the civic space in Niger has increasingly shrunk. For example, the Government prohibited some 20 protests in the last two years, some of which were dispersed with force. The refusal of an authorization does not make a demonstration illegal and cannot, in its own, justify repression as made clear by the African Commission’s principles on freedom of association and assembly.
This has become more visible since the declaration of the state of health emergency in March 2020. Since then, there has been an increase in arrest of journalists and activists for social media posts using the law on cybercrime. Amnesty International reported that in April and May at least ten people had been arrested for criticising the authorities and that charges were fabricated against some of them. Due to the restrictions introduced to respond to the Coronavirus pandemic, they did not have access to their families and lawyers for days.
Local sources added that seven students were among people arrested for participating in an unauthorised demonstration on 15 March 2020.
In this alarming context of restriction of civic space, Niger has in May 2020 adopted a new electronic communications law authorising the interception of certain private communications. ARTICLE 19 is urging the Nigerien authorities to amend the controversial provisions of these laws and bring them in line with their international human rights obligations to protect free speech and freedom of press in the country.
