When freedom of speech does NOT guarantee freedom after speech

Abdulai Mansaray: Sierra Leone Telegraph: 27 July 2020:

The Parliament of Sierra Leone on July 23, 2020 unanimously approved the new Independent Media Commission (IMC) Act 2020 and repealed Section 5 of the 1965 Public Order Act (POA) that criminalized libel as seditious crime against the State. It has been hailed as a historic moment for the media and media practitioners in particular and for democracy in general.

To a lot of people, this is one of those “wow” moments; a moment that took the whole of our country’s independent life span to get there. From a layman’s perspective and at face value, the 1965 POA is one of the tools with which the government is empowered to maintain law and order.

But buried deep in the bowels and entrails of this Act, was the contentious and democratically allergic “seditious libel” organ of the political alimentary canal; which successive governments have used with surgical precision to scalpel away unwanted and undesirable “bits” of “dissent”. But what is “Libel”?

In simple terms, the act of libel is a legal term that can be found in law, journalism, ecclesiastical, etc aspects. In other words, it is defamation, which is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime (Oxon).

Like I said earlier, it’s my layman’s view which does not require your legal gymnastic rebuttal. Thanks for giving me the benefit of the doubt.  Defamation starts with false statements of fact, which gets published and attract public concern. This then leads to damage to reputation, if knowledge of falsity or malicious intent can be proven.

The POA was one of the heirlooms we inherited from our colonial masters; the British. Seditious libel was a doctrine that flourished in England during and after the Star Chamber. The Star Chamber was an English court that sat at the Royal Palace of Westminster in the 15th century.  Its main purpose among others, was to enforce the laws against socially and politically powerful people that ordinary courts would hesitate to convict them of their crimes. But as a closed society that was headed by the Monarch, criticism of the government was viewed as defamation and punished as a crime. Enough of the history lessons.

It is an open secret that the criminalisation of libel as sedition has been a perennially thorny issue and central reason for the love-hate marriage between our governments and the media. (Picture sketch – courtesy of The Monk – Ahmed Sahid Nasralla). 

As many would testify, successive governments have used this anvil of power to crush dissenting voices, muzzle the press, and stifle free speech. In effect, freedom of expression, and by extension democracy have suffered throughout the years.

But as ironies go, the 1965 Public Order Act was engendered under the watchful eye of the then SLPP led government of the late Prime Minister Sir Albert Margai in 1965. In recognition of this anomaly, every government under the Sierra Leone sun has made amendment of this Act a central and vote winning pledge of their respective manifestos. Nothing ever came of them.  But it took another SLPP leader Maada Bio to oversee the demolition job.

Does this sound like an act of political extreme unction or penance? Irrespective of your political persuasion, Maada Bio and all those who contributed to seeing Section 5 of the POA repealed, deserve to be applauded for taking this step.

But despite this volcanic shift by the government of Sierra Leone, there are some people who still  remain sceptical about this. Nevertheless, the chorus of “Talk and Do President” from the “Bio Brigade” continues to gain significant social and political bandwidth across board.

It might be a small step, but a journey of one million miles starts with a step; its worth applauding.

What brings this into sharp focus is the fact that Bio’s opponents accuse him of being allergic to the rule of law.

So, has Maada Bio three footed his detractors whose own political parties had promised and woefully failed to amend this Act in the past? Is it time to give to Caesar what belongs to Caesar? Or is it a case of our growing loss of capacity to acknowledge the good in others?

So, what does this mean for our journalists and media merchants? To all intents and purposes, we all have a collective national responsibility as citizens to recognise and uphold the tenets of this Act.

With the 1965 POA now replaced by the new Public Order Amendment Act 2020 and the IMC Act 2020, a sacred duty and responsibility has now been bestowed on the Independent Media Commission (IMC), the Sierra Leone Association of Journalists (SLAJ), and the Ministry of Information in particular. It is the responsibility to monitor, regulate and support the fourth estate respectively.

The SLAJ has a moral duty to demonstrate that it can self-regulate in a world that is littered by social media in overdrive, where all norms are up for debate, and the pressure for news production and consumption make up the modus operandi. This obligation cannot be overemphasised.

Our media houses and the press need no reminders that “a free press is not a privilege but an organic necessity in a great society (W. Lippmann). It is worth noting that the ultimate defence against libel is the truth.

So, in the midst of all this, we should recognise that an injurious lie and an injurious truth are uncommendable; both recognised by the law of libel. In their bid to educate, inform and entertain the public, media practitioners should always remind themselves that slander becomes the tool of the loser, only when the debate is lost.

Our practitioners may hail this moment as a eureka one. By implication, the amendment of the 1965 POA enshrines liberty.  Paradoxically, if liberty should have any meaning at all, it means the right to offend or tell people what they do not want to hear. But in doing so, our practitioners would need to ensure that they steer clear of any libel or defamatory acts; to protect the collective duty to defend to death everyone’s right to make an idiot of themselves; irrespective of the variances in views.

The issue of libel even has a biblical mention by Jesus Christ in Mathew 12: 36-37, “I tell you, on the day of judgement, people will render an account for every careless word they speak. By your words you will be acquitted, and by your words you will be condemned”. Even the messiah warned us about libel.

This does not, by way of implication mean that our media practitioners are generally negligent of their duties. Journalists should be able to hold power to account. In a bid to navigate the rough seas of journalism, the ethics of this noble vocation should not be adulterated.

Now that the POA has been amended to repeal criminal libel, the media will be under intense scrutiny and in the spotlight to hold its side of the covenant. How the media will keep the balance between the public’s right and insatiable appetite to know, and the need to get it right, first time, every time will be the topical conundrum. Perhaps now, Pademba Road prisons will not be the first lodge for journalists accused of libel, but the law courts.

There is an unspoken requirement for our practitioners to have a basic understanding of libel laws, the difference between public and private figures, the public’s right to know and the individual’s right to privacy.  With the POA now amended, the tension between freedom of the press and censorship in law, and the appropriate code of ethics that should guide their reporting and their publication’s content has never been more pivotal.

Media practitioners can insulate themselves against falling foul of libel or laws of defamation if they ply their trade on the main principles of accuracy, objectivity, impartiality, truthfulness and public accountability. (Photo: Author – Abdulai Mansaray).

But we should be honest with ourselves to admit that there are some rogue journalists and practitioners who use or misuse their sacred duty to bully, harass, blackmail and intimidate others.

Interestingly, is it any coincidence that the first act to follow the repealing of Section 5 of the POA was the quashing of the contempt of court charge against former journalist and owner of Awareness Times newspaper – Dr Sylvia Blyden? Though unrelated, and with other charges pending in the magistrate’s court, her supporters would be forgiven to be hopeful.

But is it not also ironical, that on the very day that Section 5 of the POA was repealed, the Peak Newspaper was issued with a letter of invitation from the IMC to a hearing, following a complaint  against it for its story titled “Youth Minister in Le 750M Corruption Scandal”?

The hope, however, is that this newfound licence to print will not sanctify reckless practice that will open the floodgates for libel lawsuits. Let the games begin but don’t make it difficult to free yourself from the chains you revere; for free speech does not mean the right to shout “fire” in a crowded theatre.

I thank God that I am not a journalist………I am just thinking aloud.

Don’t forget to turn the lights off when you leave the room.