On the 30th October 2013, the President of Sierra Leone, Ernest Bai Koroma assented to the Right to Access Information Bill passing it into law three years after it was first tabled in Parliament. The long title of the Act reads: “Being an Act to Provide for the Disclosure of Information Held by Public Authorities or by Persons Providing Services for Them and to Provide for other Related Matters.”
The long title clearly states that it is a law that provides for access to information.
The Right to Access Information Act, 2013 is basically a law providing for citizens’ rights to access information held by public authorities or persons providing services for them. From the above, it is safe to suggest that when researchers, journalists, citizens, etc. seek to access information, it is mainly for the purpose of information sharing by way of publication or otherwise.
The Public Order Act, 1965 is a post-colonial but pre-Republican legislation that seeks to regulate public conducts in Sierra Leone. It consolidated and amended the law relating to public order. It remains the principal law regulating public conduct. Amongst many other aspects covered by the Act, the law provides the legal framework in part V of the Act for the regulation of the media as part of the maintenance of public order. Sections 25 and 27 of the Act criminalize libel for which the State, through the Attorney-General’s office, institutes criminal proceedings against citizens; in most cases journalists, who may have published materials deemed to be libellous against government officials. Libel is a defamatory statement expressed in a fixed medium, especially a written, but also a picture, sign, or electronic broadcast.
At common law, libel is classified as both a crime and a tort; but in recent times, in many jurisdictions, it is no longer prosecuted as a crime except in Sierra Leone where it is prosecuted as a crime and carries a maximum imprisonment of three years. The Act views libel as a malicious act that is designed to expose a person to hatred, contempt or ridicule. This is the position and state of mind the Public Order Act, 1965 puts the journalist and/or the publisher charged with an offence of libel. Edward Jenks notes “… the vagueness of the charge is a danger to the liberty of the subject.”
On the issue of sedition he notes as follows: “Sedition this, perhaps the very vaguest of all offences known to the Criminal Law, is defined as the speaking or writing of words calculated to excite dissatisfaction against the Constitution as by law established, to procure the alteration of it by other than lawful means, or to incite any person to commit a crime to the disturbance of the peace, or to raise discontent or disaffection, or to promote ill-feeling between different classes of the community.
A charge of sedition is, historically, one of the chief means by which Government, especially at the end of the eighteenth and the beginning of the nineteenth century, strove to put down hostile critics. It is evident that the vagueness of the charge is a danger to the liberty of the subject, especially if the Courts of Justice can be induced to take a view favourable to the Government” (The Book of English Law 136 1976).
The concurrent legal force of the two Acts: The Right to Access Information (RAI); and the Public Order Act (POA), must be subjected to inquiry with the following questions raised. Firstly, whether information accessed under the Act and published in an investigative journalistic style will amount to libel? Secondly, whether pleading the defence of sourcing such information through the Agency of the Right to Access Information Act, 2013 will constitute a defence and obviate criminal libel liability under the Public Order Act, 1965?
Answering these questions create a seeming dilemma predicated on the legal construct of the Public Order Act with penetrating provisions leaning towards the historical background of the use of the law which is obviously the protection of government and public officials against feral criticism.
It is a requirement that the accused must succeed in his defence only if the publication was made for public benefit. And it is for the courts to determine “public benefit” when the defence is raised. It is my contention that if pleading the truth of the publication cannot constitute a defence; publishing information sourced under the legal force of the Right to Access Information Act, 2013 cannot be an available defence to the author or publisher charged with libel. The fact is, all what the Right to Access Information Act, 2013 will do is the legal force of compelling public officials to divulge certain information to members of the public on demand. In effect, the Act has not repealed the use of the criminal libel provisions in Part V of the Public Order Act of 1965. In fact, on the eve of the enactment of the law, two journalists were on remand pending their trial on charges of criminal libel.
It is reported that over the past 12 months, 21 journalists have been arraigned before the court for criminal libel and were detained either by the police pending charge or sent on remand by the Courts and 12 of such prosecutions involved complaints concerning the President, Vice President, three senior government ministers and functionaries, along with the ruling party (Global Times 5th May 2014).
The SLAJ President noted that for the first time in over ten years, two journalists were convicted on criminal libel charge (Sierra Leone Association of Journalists SLAJ, Presidential Address on Press Freedom Day 2014). I must at this point caution that my use of journalists and journalism as an examples should not be countenanced as bias, but an illustration of the regular use of the law against practitioners as opposed to frequent claims by politicians that the law is not against journalists and journalism.
It has been argued that the criminal libel law contravenes and runs contrary to the spirit of the Constitution of Sierra Leone Act No. 6 of 1991. Section 25(1) of the Constitution provides for protection of freedom of expression and the press. Counter argument has found favour under section 25(2); but the totality of both arguments has not been put to a legal test. Notwithstanding such claims and counter-claims, section 11 of the Constitution provides: “The press radio and television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in the Constitution and highlight the responsibility and accountability of the Government to the people.” Although non justiciable, section 11 has placed a responsibility on the media that cannot be discharged under the gloomy weather of the Public Order Act of 1965. Legal analysis of section 11 is said to be limited in respect of its enforce ability; that it is non-justiciable, but such analysis has completely discountenanced the fact that section 11 is a provision of the Constitution under the rubric of Chapter 11 Fundamental Principles of State Policy and therefore places a duty on the State to uphold, implement and protect within the scheme of achieving the fundamental principles of state. For instance, section 13 talks about the duties of the citizen as a non-justiciable provision, nonetheless; the state has enforced this provision in instances of mere altercation between a state authority and a private citizen. Viewing the Public Order Act, 1965 in the light of section 11 and 25 of the Constitution of Sierra Leone 1991 and the Right to Access Information Act, 2013 and all collateral issues highlighted, there is the dire need for the review and subsequent repeal of Part V of the Public Order Act, 1965 as a giant step towards achieving freedom of expression and right to access information for the purpose of information sharing via publication.
Concluding therefore, contrary to claims that the Right to Access Information Act, 2013 is a milestone achievement, the above analysis suggests that right from its inception, the Public Order Act has slammed an unbearable and a debilitating restriction on the use of information accessed under the new law. That said, I concede, however, that the Act, to a certain extent, allows direct access to information thereby saving journalists from the risk of speculative journalism. However, it does not state that information accessed under the Act and used as a source for publication of a researched work or by way of investigative journalism is protected from prosecution under the criminal libel law. The right to access information can only be celebrated where there is freedom of expression. Therefore, the continued use of Part V of the Public Order Act of 1965 is an impediment to the use of information accessed under the Act. The Truth and Reconciliation Commission (TRC) Report is supposed to be the road map for post war reconstruction and democratic governance and describes the Public Order Act of 1965 in the following words: “Many provisions in the Public Order Act of 1965 undermined basic rights.\provisions relating to seditious libel and the grossly arbitrary powers of the government during a state of emergency were typical examples…” (TRC Report Vol. Three, Chapter Two Page 60).
Musa Mewa, Esq.
Wednesday October 08, 2014