What is freedom of expression? Without the freedom to offend, it ceases to exist: The case of illegal detention of John Madol panther
By Daniel Juol Nhomngek, Kampala, Uganda
March 4, 2017 (SSB) —- (If the one who arrested John Madol happens to be the government of Gok State, then the Government of Gok State will know from today that its days are numbered because we will never support it and we shall use all powers available in our means to expose every problems in the state to the public of South Sudan because the government that oppresses its citizens for no reason is no longer government of the people).
Human beings have mouths to talk and to express what they think is not going on well with them. Instead of arresting the person who talks against bad governance, the government should address the cause of bad governance.
Bad governance is the opposite of good governance. The reason why freedom of expression is protected by law even in our Constitution is the fact that the Government is supposed to allow people to talk provided they are within the limit of the confine as laid down by the law.
In allowing them to talk, the people are able to expose the bad side of the government and if the government does what people complain against then the government is considered to be founded on good governance.
Thus, as it has been pointed out by one of the writers, “freedom of expression and freedom of speech aren’t really important unless they’re heard; the freedom of hearing is as important as the freedom of speaking” in the process of governance and in ensuring the governance.
In that regard, this article is dedicated to John Madol Panther, the former minister of information in Gok State Government. He was arrested and there are many theories put forward why he was arrested but some of us believe that he was arrested due to the fact that he exercised his freedom of expression as provided for under the South Sudanese Constitution. This is because he published article against the government of Gok State sometime back when he was removed.
As it has become a culture in South Sudan, people are arrested as the authorities, wish, which is very dangerous. This is because in South Sudan, guns have become the court, they have become the police, they have become the prison and they have become everything. Therefore, if one does not have a gun then he or she has to be prepared for a big trouble as the owner of the gun can do anything against him or her at anytime with impunity.
In fact, the situation has even become worse in respect to freedom of expression. This is because there is no law to control the action of the authorities and the kind of expressions allowed and one which is not allowed by law and who should arrest in case the word which is not allowed by law has been expressed in breach of the law.
The reason why the freedom of expression has become a crime in South Sudan is that the authorities are operating outside the constitution as al laws are thrown in abeyance or suspended by everybody including the president of South Sudan.
In other words, all the governments in South Sudan beginning from the National Government to the county are not operating in accordance with the law. This is why the freedom of expression is under threat because the authorities do not know what kind of expression should be allowed and which one should not.
If the authorities of South Sudan were operating in accordance with the law, they would have known that in most cases, expression is completely harmless and protected under the right to freedom of expression from interference by the state except under some circumstances.
Circumstances under which the law controls the freedom of expression include—the protection of the rights or reputations of others, the protection of national security and to preserve the public order, public health and morals.
Hence, the above are the circumstances under which the right to freedom of expression can be limited. This means that the freedom of expression cannot be limited at the whim of a public official. In this regard, it implies that if the Public Officials want to control the freedom of freedom of expression, they must apply a law or regulation that has been formally enacted by the Parliament.
In addition, the law or regulation applied in controlling freedom of expression must meet standards of clarity and precision so that people can foresee the consequences of their actions. In this respect, vaguely worded laws, whose scope is unclear, cannot be used in punishing those accused of the violation of the law on freedom of expression. This is because they have not met the standard and are therefore not legitimate.
The example of laws that are vague are those laws which give different meanings when they are being interpreted in regard to the offence they prohibit or freedom of expression which they prohibit, which consequently causes discord in the society or painting a false image of the State. In such circumstances, laws that seek to control freedom of expression will fail the test and hence cannot be enforced or simply declared as unconstitutional.
The rationales for demanding precise law on any offence not only on the breach of the provision that prohibits freedom of expression are that—first, it is only fair that people have a reasonable opportunity to know what is prohibited, so that they can act accordingly; secondly, a situation where officials can make rules as they wish no matter how bad the law or rule is, is undemocratic; thirdly, decisions limiting human rights must be made by bodies representing the will of people; fourthly, vague laws will be abused.
They often give officials discretionary powers that leave too much room for arbitrary decision-making; and fifthly, vague laws have a ‘chilling effect’ and inhibit discussion on matters of public concern. They create a situation of uncertainty about what is permitted, resulting in people steering far clear of any controversial topic for fear that it may be illegal, even if it is not.
In addition, the law must be enacted for a legitimate aim to limit the right to freedom of expression. The list of legitimate aims is not open-ended. They are provided for in Article 19(3) of the International Covenant On Civil and Political rights, which include—respect for the rights and reputations of others, and protection of national security, public order (ordre public), public health or morals’. They are exclusive and cannot be added to.
Moreover, any limitation of the right to freedom of expression must be truly necessary. Even if a limitation is in accordance with a clear law and serves a legitimate aim, it will only pass the test if it is truly necessary for the protection of that legitimate aim. If a limitation is not needed, why impose it?
In the great majority of cases where international courts have ruled national laws to be impermissible limitations on the right to freedom of expression, it was because they were not deemed to be ‘necessary’. In that regard, international courts have generally judged that any action by a public body that has an actual effect on people’s freedom of expression constitutes a ‘restriction’ or ‘limitation’.
The reason why law controls authorities from applying laws as they wish is that crime is a matter of public importance and it is connected to the stability of a nation. Therefore, any over-criminalization of law will always have impact on the people as people and because of that if the impact is negative, people may rebel against the law as it will become oppressive.
In the same way, failure of the state to enforce criminal law may lead citizens taking the law into their own hands. So, what is needed is the moderate application of the law, which must be applied fairly.
It is the same reason as I have given in the above paragraph the accused must not be detained beyond forty hours unless there is a reasonable cause which explains as to why the accused should be detained beyond the constitutional time limit. Thus, the arrest and detention of Madol Panther and other citizens detained by National security beyond a period provided for in the law is unconstitutional and it amounts to the violation of their rights to personal liberty.
The Government of South Sudan must know the meaning of the freedom of expression by posing a simple question as to: what is the freedom of expression? Freedom of expression is the right to express one’s ideas and opinions freely through speech, writing, and other forms of communication but without deliberately causing harm to others’ character and/or reputation by false or misleading statements as already discussed in the limit to the freedom of expression.
Therefore, freedom of press is part of freedom of expression and without the freedom to offend, it ceases to exist. Freedom of expression or press is one of the major tools used in ensuring transparency and accountability. This is because freedom of expression enables citizens to fight against misgovernment and consequently expose the vices in the government which shame public officials and as a result are able to stop stealing resources of the public.
Because of that the open government is established. Open government is the governing doctrine which holds that citizens have the right to access the documents and proceedings of the government to allow for effective public oversight. In its broadest construction it opposes reason of state and other considerations, which have tended to legitimize extensive state secrecy.
Among recent developments is the theory of open source governance, which advocates the application of the free software movement to democratic principles, enabling interested citizens to get more directly involved in the legislative process.
In summary as William Hague observes, governments that block the aspirations of their people, that steal or are corrupt, that oppress and torture or that deny freedom of expression and human rights should bear in mind that they will find it increasingly hard to escape the judgment of their own people, or where warranted, the reach of international law.
In simple words, where the state oppresses it citizens without reasonable justification as already explained above, such a state is resting on social time bomb and is liable to judgment irrespective of how long the time for it to be held accountable may take. In fact, where the state shies away from observing human rights or law one must know that such a state is corrupt socially, economically and politically.
To conclude this article, I must state that John Madol has not committed any crime and because of that his arrest and eventual detention is illegal. This is because if the person behind his arrest knows that he or she has a ground to arrest him, he or she would have produced him in or before the court of law.
Otherwise, failure to produce him before the court of law gives suspicion that he was maliciously arrested and must be released immediately. Madol and the public in general need to be informed for the reasons of his arrest.
If it happens that it is the government of Gok State that arrested him, then the Government of Gok State will know that its days are numbered because we will never support it and we shall use all powers available in our means to expose every problems in the state to the public of South Sudan because the government that oppresses its citizens for no reason is no longer government of the people.
NB//The author is Human rights lawyer residing in Uganda and can be reached through: firstname.lastname@example.org
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