The Conflict Between the Right to Freedom of Expression and the Law of Defamation in South Sudan
The Right to Freedom of Expression and the Law of Defamation in South Sudan: A Juristic Analysis
By Tong Kot Kuocnin, Juba, South Sudan
I. Introduction
Tuesday, July 02, 2019 (PW) —- Freedom of expression is one of the fundamental rights, which are universally recognized and protected. Indeed, the Constitutions of most countries of the world, including South Sudan, have expressly provided for the protection of this right because of its importance and relevance to the enhancement of personal liberty and democracy. The right to freedom of expression is also protected under the Universal Declaration of Human Rights and the various regional Instruments and Conventions on human rights, including the African Charter on Human and Peoples Rights. Obligations and duties are imposed on the State or its agencies and on individuals to protect and promote human rights and fundamental freedoms.
However, the right to freedom of expression, like most other rights, is not absolute. There are recognized restrictions and exceptions to this right; one of which is to be found in the law of defamation. Thus, the enjoyment of the right to freedom of expression must take into consideration the right of other citizens to protect their reputation. The courts therefore have an important role to play in balancing the conflicting interests between freedom of expression and protection of reputation. This article aims at examining the legal and constitutional guarantee of the right to freedom of expression in South Sudan and the extent to which the law of defamation has restricted the enjoyment of this right. The effectiveness of the South Sudanese courts in striking an acceptable balance between the two conflicting rights and interests in this regard is also examined.
II. Nature and the Scope of the Right to Freedom of Expression
Generally, freedom of expression connotes the liberty of every person to openly discuss issues, hold opinions and impart ideas without restrictions, restraints or fear of punishment. It is undoubtedly, a right to be enjoyed by every person who is not under any bondage on disability.
In every human society, South Sudan not being an exception, the desire and freedom of an individual to hold an opinion and share the same with a receiver and or listener of his choice is such a fundamental one. This is because a person has the right to have a perspective of the world, the circumstances around him and the people he interacts with.
Indeed, true freedom of a person or persons would be elusive if it is not possible to ventilate ones viewpoint or share ones opinions with others in the society. Therefore, freedom of expression is one of the essential ingredients of every democratic society.
Accordingly, Nwabueze maintains that free speech and a free press are instruments of self-government by the people because they enable the people to be informed and educated about affairs of government, thereby enabling them to form and express intelligent opinions on such matters. He therefore concludes that free dissemination and discussion of ideas and opinions is indispensable to democratic government. Freedom of expression is also regarded as a basic condition for the progress of the society and the development of mankind.
The European Court on Human Rights in Handyside Case, confirmed this position when it held that the right to freedom of expression is one of the essential foundations of a democratic society and the basic condition for its progress and development.
In the same vein, Osita Eze (1999) asserts that freedom of expression is of great importance to human race, as free exchange of ideas tends to promote harmony and societal development; while suppression of the freedom of expression often leads to conflict and instability6.
The freedom of expression guaranteed in the South Sudanese Constitution and the various International Instruments on human rights and fundamental freedom, has three constituent elements; namely, the freedom to (1) hold opinions (2) receive ideas and information (3) impart ideas and information?
The freedom to hold opinions can only be manifested when the opinions are communicated without adverse consequences. This is therefore inseparable from freedom of speech. It can be said that it incorporates the right to hold and express dissenting views, and the right to comment on matters of public interest.
However, the negative effect of such actions is no longer felt as there are so many privately owned media houses in South Sudan today, which are ready to air or carry views which are contrary to those of government. The freedom to receive ideas and information is also an aspect of the right to freedom of expression and the press.
It prevents the government and individuals from preventing a person from receiving information and ideas that are available to the public. Thus, where there is a riot and journalists have taken notes or filmed the incident, the seizure or destruction of such notes or films by government security agents will be a violation of the constitutional right of the citizens to be informed.
The right to impart information, whether in oral or written form and through any medium is indeed the actualization of freedom of expression. Thus, any individual is free to own, establish and operate any medium for the dissemination of such opinions, ideas or information.
It is obvious that to compel a journalist to disclose his source of information will reduce considerably the amount of information members of the public would be prepared to give to him. This situation, no doubt, would constitute an interference with the right to collect and disseminate information.
III. The Legal and Constitutional guarantee of the Right to Freedom of Expression
The right to freedom of expression is guaranteed and protected in Article 24 of the 2011 Constitution of South Sudan (Amended 2015) in the following terms:
- Every citizen shall have the right to the freedom of expression, reception and dissemination of information, publication, and access to the press without prejudice to public order, safety or morals as prescribed by law.[1]
- The Constitution provides further that “All levels of government shall guarantee the freedom of the press and other media as shall be regulated by law in a democratic society and all media shall abide by professional ethics”.[2]
The right to freedom of expression is also guaranteed under the various international instruments on human rights and fundamental freedoms. Thus, Article 19 of the Universal Declaration on Human Rights provides as follows:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information, and ideas through any media and regardless of frontiers”.
Similarly, Article 19 of the International Covenant on Civil and Political Rights provides for the right to freedom of expression as follows.
“Everyone shall have the right to hold opinions without interference and “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print in the form of art or through any other medium of his choice”.
Article 9 of the African Charter on Human and Peoples Rights also provides for the protection of the right to freedom of expression in the following terms:
“Every individual shall have the right to receive information and Every individual shall have the right to express and disseminate his opinion within the law”.
IV. Defamation and the Right to Freedom of Expression: The Link Between Defamation and Reputation
The primal purpose of the tort of defamation is to guard against injury to reputation and offers reparation for any injury incurred therein. The law on defamation is expected to always make a reference in the law that links defamation and the reputation of a person. The law should also explicitly provide that such a person has the right to seek legal redress for any injury incurred to their reputation.
In Nigeria for instance, just like in Kenya, Uganda and South Africa etc, defamation is both a tort and a crime. The tort of defamation (civil defamation) is regulated by the rules of common law, with few statutory interventions aimed at reforming certain aspects of the law. It seeks to protect a person’s reputation from unjustified attack either by the written or spoken words of others.
In Benue Printing and Publishing Corp. v Gwagwada, the Supreme Court defined defamation as any imputation which may tend to lower the plaintiff in the estimation of right-thinking members of the society generally, cut him off from society or expose him to hatred, contempt or ridicule. On the other hand, freedom of expression is a fundamental right of every citizen, which is guaranteed and protected under the Constitution. In the light of the foregoing, the court is saddled with the onerous task of striking an acceptable balance between the interest in protecting a person’s reputation and the interest in freedom of expression.
The position of the law is firmly established that in an action for defamation the plaintiff will only succeed if he is able to prove the essential ingredients of the tort, which are (1) that the words complained of are defamatory, (2) that the words referred to the plaintiff, (3) that the words were published.
And in the case of slander, the plaintiff must also prove special/actual damage, unless he can come under the exceptional cases where slander is actionable per se. Though, all these ingredients of defamation must be proved by the plaintiff in order to succeed, it has been held that the essential part of the cause of action in defamation is the publication of the defamatory statements complained of.
Publication is the communication of the alleged defamatory statement or matter to at least one person other than the plaintiff; which is effectively the exercise of right to freedom of expression. Thus, it is trite law that an action for defamation cannot be sustained, without proof of publication. If the alleged defamatory statements were communicated to the plaintiff only, then no action for defamation would be maintained.
The success of the plaintiff in action for defamation also depends on the absence of an acceptable defence from the defendant. When successfully raised, the defences of justification, absolute privilege, qualified privilege, and fair comment would completely exonerate the defendant from liability in an action for defamation.
The availability of these defences clearly confirms that the right to freedom of expression would not be denied easily and the restriction provided by the law of defamation is by itself not absolute. The entrenchment of the right to freedom of expression in the Constitution underscores its importance and the need for its protection and promotion in our constitutional jurisprudence.
However, as defamation is both a civil and criminal matter in most jurisdictions, defamation is assumed to both civil and criminal but as per the provisions of the Penal Code Act, 2008, defamation is only a criminal matter. Thus, criminal defamation is provided for in the South Sudan Penal Code Act, 2008. Thus section 289 of the Penal Code Act, 2008, criminalizes defamation in the following terms:
“Whoever, by words either spoken or reproduced by any mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, save as hereinafter excepted, to defame that person“.
Just as in civil defamation, the defences for criminal defamation include justification, absolute privilege and qualified privilege, amongst others. However, unlike in civil defamation, those accused of criminal defamation must establish not only that the words were true, but also that they were published for the public benefit. Ironically, it is difficult to appreciate the continued retention of criminal defamation in its present form in our statute books. Obviously, an attack on a person’s reputation is a civil matter, which is adequately addressed and redressed by the tort of defamation.
Criminal defamation should be restricted to those situations where defamatory matters are published with intent to defame, tarnish, destroy, blackmail, extort or commit other crimes. In such cases, the basis for the offence is not in the bare publication of defamatory matter but in the criminal intent to politically assassinate the character of a person, the good name and reputation of the person against whom the publication is made.
V. The Role of the Courts in resolving Defamation Cases in South Sudan
As the growth in the use of social network sites brought with it many challenges for lawyers, and as the current pieces of legislation are based on laws and precedents derived before the advent of social networking, South Sudanese courts are just starting to come to grips with legal issues arising from or involving social networking sites.
It is duty of the Court to ensure the protection of the fundamental rights of the citizens, and, in appropriate cases, to balance the conflicting interests of the parties involved as our jurisprudence is still developing in regards to how the courts have settled defamation cases brought before it.
The role of the court in settling defamation cases was confirmed in the case of Olawoyin v Attorney of Northern Nigeria, where it was held that the courts have been appointed sentinels to watch over the fundamental rights secured to the people of Nigeria by the Constitution and to guard against any infringement of those rights…
Similarly, Ayoola JSC, in Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo declared that the courts are the institution, society has agreed to invest with the responsibility of balancing conflicting interests in a way as to ensure the fullness of liberty without destroying the existence and stability of society itself.
In balancing the conflicting interests between freedom of expression and the protection of reputation, the courts would normally proceed from the principle that the right to freedom of expression, being a fundamental human right, must be given preferential protective consideration; and any claim to its restriction or derogation must be construed strictly.
But, it can’t go without saying that the right to freedom of expression is not absolute in the sense that where one’s right ends is equally where people’s rights begins and thus it attracts and carry with it certain duties and responsibilities that can equally attracts penal consequences.
The European Court on Human Rights confirmed this approach in the Sunday Times Case, when it ruled that where the principle of freedom of expression is subject to a number of exceptions, such exceptions must be narrowly construed.
Thus, a plaintiff in an action for defamation must satisfy the court that he is entitled to invoke the exception to restrict or curtail the defendant’s fundamental right to freedom of expression. This is why he bears the burden of proving the requisite ingredients constituting the tort of defamation.
The courts in South Sudan have always exhibited great courage, even when the most powerful individuals always wanted to subverts the cause of justice, in the discharge of its judicial functions, particularly in balancing competing interests and ensuring that justice is done to the parties and especially to the one that his/her character, good name and reputation has been damaged.
VII. Conclusion and Recommendations
Generally, the enforcement of fundamental rights, which includes the right to freedom of expression, is usually given paramount consideration by the courts not only in South Sudan but equally the world over.
Indeed, the courts have a duty to ensure that the fundamental rights of the citizens are upheld and protected at all times and are not whittled down except by the exceptions and provisions clearly enacted or identified in the Constitution itself or in existing statutes or regulations which are not in conflict with the Constitution.
One of the recognized exceptions or restrictions to the right to freedom of expression is the right to the protection of reputation as provided under the law of defamation. A person will therefore be liable if in the course of exercising his right to freedom of expression, he infringes the right of others to the protection of reputation.
However, the exception provided by the law of defamation also aims at promoting the interest of mankind and enhancing the dignity of the human person. It introduces discipline and self-control into the system and prevents the abuse of the right to freedom of expression.
Though the threat of liability for defamation may have a freezing effect on freedom of expression, the resultant discipline in the society and respect for the rights of one another would help in maintaining social cohesion and stability for the overall development of the society.
It is suggested that criminal defamation should be reviewed and reformed to suit the realities of the modern democratic south Sudan by having a separate defamation law which shall both be civil and criminal in order to meet the threshold of the global practices.
The danger that the individual defamed might be provoked to violent retaliatory action, while it passed as a justification for the criminal punishment of defamation in the old, more violent days, seems rather outworn in modern times, conditioned by more civilized ideas about the redress of grievance through the established process of the law.
Finally, it is important to stress that since the majority of South Sudan’s citizens are still ignorant of their rights, it has become necessary for the government at all levels, to embark on intensive programmes aimed at enlightening the citizens, not only on their fundamental rights, which include the right to freedom of expression but also on their right to the protection of reputation. An enlightened society where people know their rights and respect the rights of others would certainly be more conducive for social, political and economic development.
The author holds Bachelor of Laws (LL.B) Degree from the University of Juba and a Master of Laws Degree (LL.M), specializing in Law, Governance and Democracy from the University of Nairobi. He is a founding dean of law, College of Law, Starford International University College and an Advocate Before All Courts in South Sudan. He researches and writes on Constitutional Law and Human Rights, Transitional Justice, Access to Justice, Rule of Law and Good Governance. He can be reached via his email: Bullen Tong <tongbullen@gmail.com>
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[1] Article 24 of the Transitional Constitution of the Republic of South Sudan, 2011 (Amended 2015).
[2] Ibid.
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