Internationally and regionally, the important role by freedom of expression is recognized as it is critically important. It enables citizens at national level to express their views in the public matters that concern the Country and be able to determine the direction that the country should go. The common Article 19 of the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights (ICCPR) of 1966, Article 10 of the European Convention on Human Rights (ECHR), Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples’ Rights all guarantee the right to freedom of expression across the world.
At national level, Articles 24 and 77 of the Transitional Constitution, 2011 as amended provide for the enjoyment and protection of freedom of expression and media without prejudice to public order, safety or morals as prescribed by law (Article 24 (1)). The Constitution enjoins all levels of government to guarantee the freedom of the press and other media as shall be regulated by law in a free democratic society (Article 24 (2)).
The freedom of expression constitutes one of the essential foundations of the Revitalized Agreement, which explains the central aspect of the accountability and transparency that the Revitalized Agreement imposes on the public officials though majority of whom loath it. As we have witnessed in several instances, the public officials perceive demand for accountability nuisance and in the end criminalize it. The reluctance of the public officials to heed to the demands for accountability is further complicated by the fact that the public is ignorant of its duty and rights to force these public officials to account for the way they manage public resources.
As a result, the public officials have not only deliberately denied citizens access to information but they have also criminalized it. The demand for access to information is always met with threat to take legal actions or in some cases the actual legal actions in defamation against individuals that speak out against mismanagement of public funds. In other cases, they use institutional powers to discipline those who insist on the need for auditing of the institutions under them.
The fear of punishment on tramped up charges in defamation has sent citizens into self-censorship to avoid complicated problems that come with demand for accountability. This fear is justified because they are not protected by justice system as the public official can easily find their way out of court after being declared innocent and the one who criticises face consequences. The situations as explained above triggered the interest to write this article.
Thus, the title to this article is carefully chosen so that it suits the situation in South Sudan that can help explain the negative impact of fear of criminal defamation by the public and how such fear has become a major obstacle in the path of effective public finance management reforms in South Sudan. The article attempts to educate the general public and media houses on their rights and duties to protect public resources, which are common inheritance to all citizens. The article will help the public properly understand how the law on defamation is being abused by public officials whose right to sue under defamation law is highly restricted because they have a duty to account.
Coming to the subject of this Article, what we need to understand onset is that under defamation law, the public officials whose institutions are criticised or who are accused of corruption have the duty to prove their innocence by justifying their public expenditures through the presentation of the external audited report to show that they have managed the institution transparently and accountably. If the external audited report shows that there was no mismanagement or corrupt practices in the audited institution, at that point, the public official will be entitled to claim damages in defamation if the person that was making allegations fails to produce evidence to contradict the findings of the report.
The above explanation shows that the right of public officials or public servants to sue in defamation is highly restricted by public interest. It is for the same reason the plaintiff has a duty to prove the falsity of the allegations of corruption made against him or her. In the case of New York Times Co. v. Sullivan, 376 US 254 (1964), page 279, the Court held that in cases involving statements on matters of public concern, the plaintiff should bear the burden of proving the falsity of any statements or imputations of fact alleged to be defamatory. In this case, the Court re-sates the general principle developed by constitutional courts, including the US Supreme Court, which has made it clear that placing the burden of proof with the defendant will have a significant chilling effect on the right to freedom of expression.
In the confirmation of the burden of proof being on the plaintiff in matters concerning public interest, the European Court of Human Rights in Colombani v. France, 25 June 2002, Application No. 51279/99, paragraph 65 states that where a journalist is reporting from reliable sources in accordance with professional standards, it will be unfair to require them to prove the truth of their statements where the publication is based on a matter of public concern.
The Court has further made it clear that in matters of public concern, there is no defamation action as they receive full constitutional protection. The Court considers it to be unfair for the media to be punished as they are under a duty to satisfy the public’s right to know where matters of public concern are involved. The Court have further reached the extent of criticising the penalty imposed in defamation cases because of its impact on freedom of speech and expression. Thus, in the case of Lingens v. Austria, 8 July 1986, Application No. 9815/82, paragraph 44, the European Court of Human Rights held that unduly harsh penalties imposed in criminal defamation represent a breach of the right to freedom of expression even if the circumstances justify some sanction.
The positions of law on issues of defamation concerning public institutions and public officials is very clear. As a general rule, the public institutions cannot sue in defamation. This was held in Derbyshire County Council v. Times Newspapers Ltd [1993] 1 All ER 1011, page 1017 in United Kingdom that the common law does not allow a local authority to maintain an action for damages for libel as an elected body, which should be open to uninhibited public criticisms.
The Indian Supreme Court further made it clear in Rajgopal v. State of Tamil Nadu, (1994) 6 Supreme Court Cases 632, page 650 by ruling that the Government, local authority and other organs and institutions exercising governmental power cannot bring a defamation suit. A similar position has been taken in the United States, Zimbabwe and South Africa. The European Court of Human Rights in Castells v. Spain, 23 April 1992, 14 EHRR 445, paragraph 46 has also held that governments cannot sue in defamation simply to protect their honour.
There are four main reasons for the courts rejecting the suit in defamation brought by public bodies. These are—(a) criticism of government is vital to the success of a democracy as defamation suits inhibit free debate on matters of public concern; (b), though defamation laws are designed to protect reputations, elected bodies are however not allowed to sue in defamation because any reputation they might have would belong to the public as a whole, which on balance benefits from uninhibited criticism; (c) the government has ample ability to defend itself from harsh criticism by other means, for example by responding directly to any allegations; and (d) allowing elected public bodies to sue in defamation is, therefore, an inappropriate use of taxpayers’ money, one which may well be open to abuse by governments intolerant of criticism.
The courts have also extended the same rule that the elected public officials cannot sue in defamation to public bodies which are not elected as it was held in the case of Die Spoorbond v. South African Railways [1946] AD 999, pages 1012-1013. In this case, the national railway was denied the right to sue in defamation because of being a public body. The Public Officials are also restricted from suing in defamation as they are required to tolerate more, not less, criticism, in part because of the public interest in open debate about public figures and institutions.
The policy behind the rejection of criminal defamation brought by public institutions generally and restricted right to sue in defamation by public officials or public servants is that defamation law has an inhibiting effect on freedom of speech, which is important in public debate and democracy. Moreover, the government institutions or public bodies have the duty under the Constitution to promote rights to freedom of expression and speech and they cannot be allowed to breach such a duty. It is also part of their duty to observe the principles of transparency and accountability, which are behind every criticism.
In reference to South Sudan, the principles of accountability and transparency are central to the Revitalized Agreement. They place an absolute duty on political leaders and all stakeholders to establish transparent and accountable system with legal, institutional, policies and procedures fully functional for sustainable development (Read; Article 4.1.1 of the Revitalized Agreement). This further involves establishing effective leadership and commitment in fight against corruption (read; Article 4.1.2) and where a leader at any level of government is found to have condoned or engaged in corruption he or she must be held accountable and consequently banned from holding public office in accordance with the Agreement and the law (read; Article 4.1.2).
The Revitalized Agreement further places premium on ethics and integrity that requires public officials to observe values of honesty and integrity in South Sudan (read Article 4.1.3 of the Revitalized Agreement). The constitution also imposes the duty on government officials to be transparent by providing unobstructed access to information under Article 32 of the Transitional Constitution, 2011 as amended. Though Article 32 restricts access to some information, which is prejudicial to public security or the right to privacy but disclosure of public expenditure and finances does not fall within the restriction imposed by Article 32.
The disclosure of public finances and expenditures by public officials or public institutions is allowed under Article 180 (2) of the Transitional Constitution, 2011 as amended read together with section 15 (3) of the Public Financial Management and Accountability Act, 2011, which provide that revenue and expenditure under the control of all public institutions at each level of government must be on-budget operations and made public as the case may be. As the part of the protection of the right of access to information, the citizens cannot only criticise the government officials but he or she can also demand for the information by filing a complaint against a government institution or a government official that deny them their right of access to the relevant information. The foregoing analysis of case law and legislations of South Sudan shows the following:-
- That the public institutions or the public body that delivers essential public services cannot sue in defamation;
- That all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.
- That unduly harsh penalties in criminal defamation represents a breach of the right to freedom of expression even if the circumstances justify some sanction.
- That public officials bear the burden of proof in defamation cases by justifying their management of public finances through external audited report or other standard reports as part of accountability to show that the statement he or she challenging was made with ill intention against him or her;
- That where the opinion whatever respecting the conduct of a public servant in the discharge of his or her public functions or respecting his or her character so far as his or her character appears in that conduct and no further was made in good faith (Section 289 (3) (b) of the Penal Code Act, 2008);
- That the opinion whatever respecting the conduct of any person touching any public question and respecting his or her character so far as his or her character appears in that conduct and no further was made in good faith (Section 289 (3) (c) of the Penal Code Act, 2008); and
- That the imputation on the character of another person was made in good faith as the one who made statement made it purposely to protect his or her interests or for the protection of the interests of any other person or for the public good (Section 289 (3) (h) of the Penal Code Act, 2008).
In summary, all discussions above can help us fight the tendency of public officials managing resources in obscure way while threatening citizens who criticize them of bring lawsuit in defamation against as a way of protecting their reputation. What the public officials or public servants are doing is an abuse of law and legal process that can be challenged in Courts of law or even referred to the East African Court of Justice to determine the question whether their actions or conducts are consistent with the provisions of the East African Community Treaty on the rule of law, accountability, and human rights standards.
The writer is a member of the National Parliament (TNLA) representing Cueibet County in Lakes State on the ticket of the SPLM-IO. He is lawyer specializing in the Constitution law and human rights. He can be reached through: nhomngekjuol@gmail.com.
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