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Cablegate: Supreme Court Upholds Libel Law

VZCZCXRO3997
RR RUEHMA RUEHPA
DE RUEHFN #0453/01 3241219
ZNR UUUUU ZZH
R 201219Z NOV 09
FM AMEMBASSY FREETOWN
TO RUEHC/SECSTATE WASHDC 2990
INFO RUEHZK/ECOWAS COLLECTIVE

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

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