Freedom of Expression, Censorship & The Law
"Our lives begin to end the day we become silent about the things that matter." - Martin Luther King, Jr.
Overview
In this newsletter, we will discuss freedom of expression in Djiboutian society and why it is integral to our development as a nation. We will also take a critical look at the key laws that undermine free speech and the media in our country.
It has been documented throughout history that the first steps an increasingly authoritarian government takes to preserve its image & power is control of the media. For example, news and radio stations are often owned by the government, and some outlets, often critical of the regime in question, are blocked. In addition, activists and journalists who report negative news about senior officials or their policies are threatened and, in extreme circumstances, killed.
1 Party, 1 News Outlet, 0 Room for Criticism
Unfortunately, these strategies of media censorship & illegal detention of dissidents are observed in our country, all to project a positive image of the current government. Censorship of the media is institutionalised by strict laws on criminal defamation and through overcomplicating the requirements to set up a media outlet.
Currently, the main media outlet is "Radio Television Djiboutienne - RTD", a radio and TV station which falls under the Ministry of Communications & Culture and is funded by the government. Print media, controlled by the government, continues to be published, but it's not as popular and accessible as the RTD. Opposition parties also publish print media, although not widely distributed due to logistical issue, but suffer from poor funding as well as silencing from the government.
For example, Articles 423 to 427 of the national Penal Code (Le Code Pénal) discusses "Infringements of Honour" (Atteintes a l'honeur) and defines public defamation as:
"The allegation or imputation, expressed publicly, in any way and in any form, of an act affecting the honour and reputation of a person or body, even when not explicitly named, but identifiable."
The Penalty of Public Defamation
The penalty when charged with public defamation depends on if the act was carried out against a member or body of government and when carried out against a private civilian.
When the act is carried out against a member of the government, including members of armed forces, judges & civil servants, the penalty is a 1 Million DJF (approx. £4,300/$5,600) fine in addition to imprisonment for one year (Article 427). When carried out against a private civilian, the penalty is 500,000 DJF and 6 months of imprisonment (Article 426). However, according to Article 78 of Organic Law n°2/AN/92/2eL, when the offence is committed against the President of the Republic, the fine & prison sentence may vary from 300,000-1M DJF & 3 months to a year, respectively.
This allows the government to use these provisions to suppress opposing opinions based on the possibility that they may have committed “public defamation”. Moreover, the harsh criminalisation of defamation prevents journalists from doing their work thoroughly without fear of repercussions if they accidentally make a mistake in their reporting.
Criticisms
Furthermore, these provisions within the Penal Code (Articles 426-427) criminalises legitimate critics and violates their right to freedom of expression according to the "African Commission" and the NGO "Human Rights Watch". They suggest these provisions should be repealed because they stifle freedom of expression and allow the government to label journalists, activists and members of the opposition as criminals, even though they are well within their human rights.
These defamation laws contrasts with that of the UK legal system where public officials cannot sue for defamation over issues relating their government function.
However, in French law, where the bulk of the Djiboutian penal code was inherited from, has similar defamation laws (The Law of July 1881). But these laws have been amended & reformed since its first inception to promote free speech within the public and political space.
This is an example of how ex-French colonies adopted colonial laws and institutions following independence and used them to oppress their own people and exert control over them.
Barriers to Setting Up A Media Organisation
In addition to limiting the content of speech, the government also restricts who is able to establish and run a media outlet. Although Article 15 of the Constitution guarantees the right to freedom of expression, it is not applied in practice. Articles 14, 17 and 47 of Law n°2/AN/92/2eL - Relating to the Freedom of Communication imposes restrictions on who is capable of setting up a media body. Article 17 states that the leaders and directors must be of Djiboutian nationality and reside in the nation. Article 14 also indicates that all participants within the funding body of the institution should be of Djiboutian nationality. Article 47 stipulates that the director must be at least 40 years old, be of Djiboutian nationality and enjoy their civic and civil rights.
We can deduce from these provisions that the government has severely limited the people allowed to set up a media company. In addition, these laws are in direct contradiction to international law which protects the freedom of expression. Restricting the number of people authorised to create a media prevents plurality of thought and independence in the media and condemns the public to receive their news from an extremely limited number of sources. It should be noted that these provisions should be repealed to ensure the plurality and independence of the media and not to restrict speech as the government deems appropriate.
Conclusions
In summary, the right to freedom of expression and the media in Djibouti are institutionally suppressed and criminalized to an extent by the strict enforcement of defamation laws which facilitates the abuse of the rights of citizens and journalists by public officials. The freedom to establish a media outlet is also hampered by the fact that the government has imposed financial, nationality-based and age restrictions on those allowed to set up a media organisation. Therefore, such provisions must be repealed in order to ensure government transparency and to have a frank discussions on matters affecting our country without government restriction.