Kenyan court knocks down criminal defamation, safeguards freedom of expression

Efforts to create more space for free expression in Africa have been strengthened by the Kenyan Judiciary. In the case of Jacqueline Okuta & Anor vs. AG & Others, the High Court of Kenya on 6 of February 2017 annulled section 194 of the Penal Code that provides for the offence of criminal defamation. This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.

The harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society”, Judge Mativo of the High Court of Kenya pronounced in his judgment.

The Judge noted that upon promulgation of the Constitution of Kenya in 2010, it was expected that certain provisions in Kenya’s existing laws were to be amended to align them to the letter and spirit of the Constitution. However, seven years later, this expectation had not been met. Relying on regional and international standards on freedom of expression, the Court concluded that criminal defamation is unconstitutional, reasoning that “the chilling effect of criminalizing defamation is exacerbated by the maximum punishment of two years’ imprisonment imposable for any contravention which is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The Court further held that imprisonment as a sanction was not “reasonably justifiable in a democratic society” and that the availability of civil remedies afforded sufficient redress for injury to one’s reputation.

Criminal defamation continues to prominently feature in Penal Codes of African countries especially in East Africa. The High Court of Kenya is the first court in the region to declare that criminal defamation violates the right to freedom of expression.

The case in Kenya arose from the indictment of two petitioners, Jacqueline Okuta and Jackson Njeru, who were each charged with criminal defamation for allegedly publishing defamatory statements on their Facebook account “Buyer beware-Kenya.” The case complaint was based on a post in which the complainants were pictured and named as being wanted for illegal possession and handling of property, and misuse of a telecommunication device. The petitioners then sought to challenge section 194 of the Penal Code before the Constitutional and Human Rights division of the High Court, arguing that the provision was unconstitutional and violated the right to freedom of expression.

A key question is what impact the decision from Kenya’s High Court will have in East Africa, and possibly in the wider African region. The judgment follows and references the landmark decision of the African Court on Human and Peoples’ Rights in the case of Lohé Issa Konaté v. Burkina Faso, but goes further than that Court’s finding that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It does so by finding that “any continued enforcement of criminal defamation laws by the government would be a violation of the fundamental and constitutionally guaranteed right to the freedom of expression.”

This corresponds with the minority dissenting opinion in the African Court case, in which 4 of the 10-judge bench found that the “’State’s duty to enforce collective security, morality and common interest’ cannot justify the criminalization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not. Access to civil action, civil sanctions together with specifically defined crimes for safeguarding national security, public peace and the common interest should be sufficient.”

The Kenyan case highlights the potential of strategic litigation as an effective tool in bringing about social change where lobbying efforts have failed. It reinforces the efforts of other national courts in Africa like Zimbabwe that have decriminalized defamation twice, once under its previous and once under its current constitution. Other countries in the region, such as Ghana, abolished criminal defamation laws through law reform. This is in line with the continental campaign to decriminalize defamation by the African Union Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Efforts to do the same in East Africa have so far been without result, especially where countries like Uganda previously upheld the constitutionality of criminal defamation laws on grounds that they are “relevant” in protecting reputation.

cbs-radio-journalist-ronald-ssembuusi-middle-leaving-court-with-hrnj-uganda-lawyer-catherine-anite-left

Journalist Ronald Ssembuusi (middle) leaving court with lawyer Catherine Anite (left). Photo courtesy of HRNJ-Uganda.

A challenge to Uganda’s criminal defamation laws is currently pending before the East African Court of Justice. The case, brought on behalf of the now-deceased Ugandan journalist Ronald Ssembuusi, argues that his conviction to a prison sentence of one year was in violation of Uganda’s obligations under the East African Community Treaty. The matter has garnered much interest from the international community, with not only the African Union and United Nations Special Rapporteurs on freedom of expression having requested to make amicus submissions in the case, but also a coalition of 20 African and international NGOs. It will be interesting to see what impact the Kenyan judgment might have on the case. If the East African Court rules in favor of Ssembuusi, the judgment will positively impact all East African Community countries, which include Kenya, Tanzania, Uganda, Rwanda Burundi and South Sudan.

This post was co-authored by Catherine Anite, a human rights lawyer from Uganda and part of the legal team litigating the Ssembuusi case. Nani Jansen Reventlow was lead counsel on the Konaté case. This post has been cross-posted from Harvard’s Cyberlaw Clinic blog.

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ICC Prosecutor’s opening addresses Ongwen as alleged “victim-perpetrator”

bensouda

Since accused Lord’s Resistance Army leader Dominic Ongwen surrendered to the International Criminal Court in January 2015, there’s been much discussion of the effect, if any, of reports that he was abducted as a child into the Uganda rebel group, and eventually committed international crimes himself.

ICC Prosecutor Fatou Bensouda responded in her opening statement this morning,  on the 1st day of trial in Prosecutor v. Ongwen (transcript, video, and audio available here; photo © ICC-CPI). First she discussed the crimes with which he is charged, against children and adults alike. Then Bensouda turned to the accused himself:

“One aspect of this case is the fact that not only is Ongwen alleged to be the perpetrator of these crimes, he was also a victim.”

About this, Bensouda said:

“The reality is that cruel men can do kind things and kind men can be cruel. A hundred percent consistency is a rare thing. And the phenomenon of the perpetrator-victim is not restricted to international courts: it is a familiar one in all criminal jurisdictions. Fatherless children in bleak inner cities face brutal and involuntary initiation ordeals into gang life, before themselves taking on a criminal lifestyle. Child abusers consistently reveal that they have been abused themselves as children.

“But having suffered victimization in the past is not a justification, nor an excuse to victimise others. Each human being must be considered to be endowed with moral responsibility for their actions. And the focus of the ICC’s criminal process is not on the goodness or badness of the accused person, but on the criminal acts which he or she has committed. We are not here to deny that Mr. Ongwen was a victim in his youth. We will prove what he did, what he said, and the impact of those deeds on his many victims.

“This Court will not decide his goodness or badness, nor whether he deserves sympathy, but whether he is guilty of the serious crimes committed as an adult, with which he stands charged.”

 

(Cross-posted from Diane Marie Amann; IntLawGrrl Dieneke de Vos’ preview of the Ongwen trial is here)

A day to remember: Ongwen’s trial starts on 6 December

Tomorrow, 6 December, the trial against Dominic Ongwen will start before Trial Chamber IX of the International Criminal Court (ICC). Ongwen’s trial follows the ICC’s first conviction for rape this year, and presents a firm break with past setbacks in terms of accountability for sexual and gender-based violence (SGBV) at the Court. It will be an important and interesting trial for many reasons, too numerous to address all of them here. Let me focus on a couple relating to the SGBV charges. They are addressed in detail in the Prosecution’s pre-trial brief (I highly recommend reading it in full!) and will no doubt feature prominently during the trial. References below are to paragraphs in the pre-trial brief.

Broadest range of SGBV charges

Dominic Ongwen is an alleged senior commander in the Lord’s Resistance Army (LRA), who is charged with responsibility for war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. As I wrote earlier, he saw 70 charges confirmed against him, including for various modes of liability. It is the first time an accused faces such a high number of charges at the ICC. Many of these charges were added after the Office of the Prosecutor conducted additional investigations following Ongwen’s surrender to the ICC in January 2015. His 2005 arrest warrant contained only seven charges, none of which were for SGBV.

With now 19 of the 70 charges against him relating to SGBV, it is also the first time an accused faces such a broad range of SGBV charges at the ICC: they include several counts of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy. Eleven of these 19 SGBV charges relate to crimes Ongwen personally committed as a direct perpetrator (again, a first at the ICC – all other individuals charged with SGBV were/are either charged as indirect (co)perpetrators or under the theory of command responsibility). The other SGBV charges relate to the LRA’s conduct more generally for which Ongwen is held responsible (in the alternative) as indirect co-perpetrator, for ordering, or under the theory of command responsibility.

Forced marriage

Ongwen is the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, forced marriage is charged as the crime against humanity of ‘other inhumane acts’. The Prosecution’s pre-trial brief describes an elaborate structure through which young girls abducted by the LRA were distributed among commanders to serve as ting-tings (if they were very young) and subsequently as forced wives (although many witnesses also described that girls could become wives at any age). Soldiers were given ‘wives’ by Ongwen as rewards for ‘work[ing] well in attacks and battle’ (131). Continue reading

Talking with women about community healing in Uganda and Sierra Leone

Dear Friends,

I last blogged with IntLawGrrls in 2012 about my book on transitional justice in Sierra Leone, Uganda, and Burundi (Humanitarian Law in Action within Africa, OUP 2012).  I am now researching a second book that builds upon a vision of transformational justice with retributive, reconciliative, and redistributive strands, focusing on the perspectives of non-elite women engaged in grassroots peacebuilding work.  I ask women what these concepts of justice mean to them, and whether they relate to their daily lives and involvement in community development activities.

In March I conducted focus group interviews in Sierra Leone, meeting with women in Moyamba and Koinadugu Districts.  In two days I will fly to Kampala to start the Uganda phase of my research, entailing interviews with women civil war survivors in Gulu and Kitgum Districts of Northern Uganda.  I wished to reach out to our network of women active in international law as I prepare to interact with networks of women in another region. I am grateful for the solidarity between women and men in so many places, whether elite or non-elite, whether we work in academia or in various conceptions of “the trenches,” whether we are friends, family, colleagues, or still strangers.  Reflecting on the Brexit outcome in the UK on June 24; Trumpism as we in the US proceed towards November; and recent decisions on abortion, immigration and affirmative action by our Supreme Court –   the strands of life are indeed starting to feel inter-connected.

My sister and her Irish husband, who live in London, recently shared a June 24 blog entitled “Thoughts on the “Sociology of Brexit” by Will Davies.  The piece resonated with me on several levels, including the connections between Brexit in the UK, on one side, to presidential politics in the US, on another, and finally with women’s community engagement on the African continent.  Davies writes about the long-term impact of Thatcherism in the UK, and what he sees as the interplay between global neoliberal economic forces and post-1970s welfare polices of Labour government.  He talks about the surprise of Labour politicians and others at the lack of political loyalty on the part of working people towards the political elites who “gave the handouts.”

Davies identifies a problem in the heartland that has something to do with a yearning for “the dignity of being self-sufficient, not necessarily in a neoliberal sense, but certainly in a communal, familial and fraternal sense.” That idea of community self-sufficiency resonates with what my early research in Sierra Leone has already revealed.  I have a growing sense that at least some rural women in post-conflict societies in Africa are empowered when they are organized and self-sufficient on a subsistence level, as much as when there are “pro-women” policies and political rhetoric at the national level.  There is much to learn and to share on both sides of the Atlantic and across our various continents.  I will hope to continue the conversation with as my research and your own projects continue.

 

28 June 2016

Jennifer Moore

Professor of Law

University of New Mexico School of Law

Albuquerque, NM

A Week of Firsts at the ICC

It has been a successful week for the International Criminal Court (ICC). On Monday 21 March 2016, Trial Chamber III convicted Jean-Pierre Bemba Gombo as military commander for rape, murder, and pillaging committed by troops under his command in the Central African Republic. Two days later, on 23 March, Pre-Trial Chamber II confirmed all 70 charges against Dominic Ongwen, committing him to trial. Then, on 24 March, Pre-Trial Chamber I issued the confirmation decision in the case against Ahmed Al Faqi Al Mahdi for the destruction of cultural property in Mali. All of these cases have set important precedents: it has been a Week of Firsts for the ICC.

Two firsts in the Al Mahdi case

  • The confirmation of a charge of the war crime of intentionally directing attacks against ‘cultural property’ in Timbuktu (Mali) against Al Faqi Al Mahdi was the first such crime to be confirmed at the ICC.
  • His trial would have been the first regarding the destruction of cultural heritage. Would have been, because on 1 March, Al Mahdi indicated his wish to plead guilty. But that brings us to another first: his will be the first guilty plea at the ICC. If the Trial Chamber accepts his admission of guilt under article 65, the case will proceed to sentencing.

Three firsts in the Bemba case

  • Jean-Pierre Bemba Gombo’s conviction of rape, murder, and pillage was the first time at the ICC that an accused person was convicted of sexual violence.
  • His conviction was also the first ever in international criminal law to classify rape of men specifically as sexual violence (as opposed to other inhumane acts or torture).
  • Bemba was tried and convicted as a military commander for crimes committed by troops under his command for his failure to prevent, repress or punish their commission. Another first!

Four firsts in the Ongwen case

  • Dominic Ongwen saw 70 charges confirmed against him, including various modes of liability. It is the first time an accused faces such a high number of charges at the ICC.
  • With 19 of the 70 charges relating to sexual and gender-based violence, it is also the first time an accused faces such a broad range of sexual and gender-based violence charges. He faces several charges of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy.
  • Ongwen will be the first person ever in international criminal law to stand trial for forced pregnancy. Although forced impregnation as a strategy in war and conflict is not new, the ICC’s Rome Statute was the first to codify it as a specific crime.
  • Ongwen is also the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, the Chamber concurred with the Office of the Prosecutor that forced marriage constitutes an “other inhumane act” as a crime against humanity. The decision explores in some detail the elements of the crime of forced marriage, which for the Chamber revolves around forcing a person to serve as an exclusive conjugal partner. Importantly, the Chamber stressed that it is not predominantly a sexual crime. His trial will undoubtedly expand upon international criminal law’s understanding of this crime.

It has certainly been an exciting week for the ICC!

Confirmation of charges hearing in Dominic Ongwen case: hopeful signs for gender justice?

From 21 to 27 January 2016, the confirmation of charges hearing in the Dominic Ongwen case was held at the International Criminal Court (ICC). It is an important case for many reasons, one of which is this post’s subject: the case includes a high number of sexual and gender-based violence (SGBV) charges, which, if confirmed, would be the broadest range of such crimes ever to come to trial at the ICC. It would certainly illustrate that the positive trend in this respect that started with the Ntaganda case continues, and would consolidate important case law on these crimes.

Dominic Ongwen, an alleged senior commander in the Lord’s Resistance Army (LRA), is charged with responsibility for 70 counts of war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. Importantly, the charges include eight counts of SGBV: rape, torture, and sexual slavery as both war crimes and crimes against humanity, and forced marriage and enslavement as crimes against humanity. This makes it an important case for gender justice at the ICC. The case has the highest number of SGBV charges to date.

However, if the Court’s track-record for sexual violence charges is something to go by, we are in for a rainy day. With Ngudjolo’s acquittal in 2012, and Katanga’s partial conviction in 2014 excluding sexual violence crimes, there have thus far been no successful convictions for SGBV crimes at the ICC. This is a disappointing record for a Court that was heralded as a “model for gender justice” when its Statute entered into force.

With the Office of the Prosecutor’s (OTP) stated commitment to strengthen its investigation and prosecution of SGBV, however, there is hope that this case will be different. It follows in the footsteps of the Ntaganda case – the first case to reach the confirmation stage since Fatou Bensouda took office as Prosecutor; this was the first case in which all SGBV charges sought by the Prosecution at confirmation were confirmed. Further, in the Ntaganda case, the OTP is pushing the understandings of IHL protections around (sexual violence) crimes committed against one’s own troops. If successful, this would develop international law’s gendered understandings of child recruitment.

The Ongwen case may shed light on yet another relatively under-developed area of gender justice in international criminal law jurisprudence. It would be one of the few cases in international criminal justice to address the crime of forced marriage. While not included in the Rome Statute as a separate offence, the Prosecution has charged forced marriage as an inhumane act of similar character under Article 7(1)(k). The Prosecution alleges that the LRA pursued a policy of abducting women and young girls with the express aim of forcing them to act as wives of LRA commanders and fighters. While the OTP alleges that exclusive sexual services were an inherent part of being a forced wife, importantly, they argued that it also encompasses other, non-sexual, tasks such as household chores, cooking, and child rearing, i.e. raising new LRA fighters.  Continue reading

Transfers from Israel are a symptom of the global refugee crisis seizing Europe

For decades, Europe has managed to ignore the majority of refugees housed in countries along the borders of those in crisis – including TurkeyLebanon and Africa’s Great Lakes region – and has had its collective head in the sand over the critical failures to offer them adequate protection and assistance. It has wrongly assumed that aid budgets are a suitable substitute for proper engagement with deeply-entrenched causes of conflict and forced migration. As it turns out, throwing money at a distant refugee crisis without an assessment not only of the broader context of the conflict, but also of the extent to which actions taken by European governments have contributed to instability, eventually catches up with you. So now, as images of thousands of asylum seekers in train stations in Hungary and those coming ashore in Greece show, the protection crisis is no longer out there. The challenge of protection has been laid squarely at Europe’s feet.

Inevitably, the response to the growing visibility of this global refugee crisis has been mixed, ranging from generosity and empathy (as displayed by the welcome received by Syrian asylum seekers arriving in Germany after their gruelling journey from Hungary), to hostility and anger (as evidenced by the image of a camerawoman tripping up fleeing migrants). One of the key factors that determines public opinion is the ability to engage with individual stories – stories that work as an antidote to the xenophobic language that turns individuals into marauding hordes and personal tragedies into a perceived threat. But in order to understand individuals, we must understand why they flee and why they choose Europe. We need to grasp the fact that their stories are inextricably linked to failures of protection and a lack of viable opportunities for livelihoods elsewhere. And to do that, we need to re-trace their steps and understand the many factors that led them to Europe.

One of these stories is told in a report recently published by the International Refugee Rights Initiative. The report, “I was left with nothing”: “Voluntary” departures of asylum seekers from Israel to Rwanda and Uganda is based on interviews with 25 Eritrean and Sudanese asylum seekers, 22 of whom were sent from Israel to Uganda and Rwanda between February 2014 and May 2015 under a so-called “voluntary departure” programme. Due to the circumstances under which they left Israel, and the way in which they were treated on arrival in Rwanda and Uganda, most have subsequently been forced to flee once more. Many are now trying to make their way into Europe. Some have succeeded, others have not.

Their stories show how the dangerous voyage to Europe is not so much a choice as simply the only option left after trying countless other ways to find safety for themselves and their families. All those interviewed had fled conflict and persecution in their home countries, and had gone to Israel in the hope of finding not only a safe place to stay, but also a job to support themselves and their families. To get to Israel, many had risked being kidnapped by Bedouins in the Sinai desert and taken to a hidden camp where families are then extorted for ransom, as shown in the documentary, Sound of Torture. Those who made it to Israel, however, found that their problems had only just begun. More than two thirds of those interviewed had either been put into indefinite detention in Israel’s Holot detention centre (described by one interviewee as “a place not fit for human beings”), or had been threatened with detention, in line with Israel’s harsh treatment of asylum seekers. Until 2013, they were not even allowed to apply for asylum, and afterwards they faced an unfair process. Not surprisingly, since the beginning of 2013 approximately 10,000 African asylum seekers who had fled to Israel seeking refuge have once more been forced to flee – either back to the places from which they had fled, or to other destinations including Europe.

Meanwhile, approximately 1,500 Sudanese and Eritreans were persuaded to join a “voluntary departure” scheme, also documented by Human Rights Watch, run by the Israeli government, under which asylum seekers are sent to Uganda and Rwanda with a promise that they will receive legal status and a cash payment of approximately USD 3,500 on leaving Israel. They chose to leave not because they wanted to go to the third countries offered, but because they could not go home. In the words of one Eritrean asylum seeker: “They said: ‘you can either go to your country or to Rwanda.’ I said: ‘if I could go to my country, why would I even be in Israel to begin with?’” (This determination not to return contrasts sharply with controversial UK Home Office Guidance on Eritrea, which suggests that individuals can return safely as they will not face prosecution for having left without permission on return).

Yet the research documented the fact that, on arrival in Uganda or Rwanda, they were not only not offered any kind of automatic status, they were left with no valid legal documents (often having the few documents that they did have taken off them). They were then approached by people smugglers and “encouraged” to leave the country – or, by way of an alternative, risk deportation due to the fact that they had no legal status. As a result, all of those we interviewed who had arrived in Rwanda, and most of those who had been sent to Uganda, had once more fled. Another Eritrean who was transferred from Israel to Rwanda and was then smuggled into Uganda, explained: “Out of 16 people [who came on the same flight] I am the only one still here. They are all in Libya. I don’t need to go to these places. You go to Juba, from Juba, Sudan – it is dangerous. I don’t want to go there. I want to leave [Uganda] by plane.”

With their options now even further reduced (as one man said, the only document he had left was his Israeli prison identity document), some have subsequently taken the difficult decision to undertake the treacherous journey to Europe. Those interviewed were well aware of the dangers: in April 2015, three Eritreans who had left Israel under this so-called “voluntary” programme were executed by Islamic State in Libya. As one interviewee who knew one of the victims personally said, “Many have left [Uganda] to South Sudan and then they go to Libya. But now there is ISIS there. I don’t know if you saw on Youtube, there was one, he was with us in Holot, I know him. They [ISIS] have slaughtered him. We were together in Holot. I also know of two who are in Benghazi in the jail… They are still waiting there to go to Europe, by sea.”

Their stories point to some of the circumstances that drive individuals and families to risk their lives and get into a leaking boat to cross over the Mediterranean to a fundamentally uncertain future. They are circumstances driven by the fact that the ability to seek a place of safety is becoming increasingly difficult for millions of people – circumstances in which we are all, to some extent, complicit whether through foreign policy decisions taken by our governments or our own inaction. Europe’s refugee crisis, therefore, is not just a European crisis but a global one needing a global response. We need not only to show solidarity and take in more forced migrants in Europe, but to support protection globally, and to engage with greater honesty in the resolution of deeply entrenched causes of forced migration. We also need to hold Israel accountable for its treatment of asylum seekers. While other countries in the region are hosting millions of refugees fleeing Syria, Israel is hosting none, and is forcing out the several thousands of African asylum seekers already in it. It is not only sending those refugees to countries that already host large numbers of refugees, but is also putting their lives in danger and is eventually contributing to refugee crises in other countries.

(Reposted from OpenDemocracy)