December 12, 2009

V. Freedom of Expression

“Overall, it’s true, we have more freedom of expression. Before, we wouldn’t even try to express ourselves. Now we’re taking risks.” 
—Libyan journalist, Tripoli, April 2009
 “Things are much better but there can be a regression because there is no liberalization in the law.” 
—Libyan journalist, Tripoli, April 2009
“The four red lines are the application of Islamic law, the Koran and its requirements, security and stability of Libya, its territorial integrity and Mu’ammar Gaddafi.”
—Saif al-Islam al-Gaddafi, August 2007

The past five years have witnessed a gradual opening of a new, still vulnerable but nevertheless measurable, space for freedom of expression. The government retains control over most of the media in Libya and monitors and censors the new private media.  The establishment of two private newspapers and a satellite TV station in August 2007 was initially embraced by journalists with great enthusiasm as they explored new boundaries of critical speech. Later, however, as government pushed back, journalists became more cautious and less optimistic about the sustainability of this freedom. The continued existence of repressive laws, which criminalize free speech, casts a heavy shadow over the press. The Press Prosecutor, one of Libya’s specialized prosecutors who also covers narcotics, the General Prosecutor and the State Security prosecutors have been playing an increasingly active role by initiating criminal investigations into cases where complaints of slander were brought against journalists. Many people Human Rights Watch met argued that there have been small but tangible developments in Libya over the past 5 years, with one lawyer telling Human Rights Watch “I couldn’t have spoken to you in 2005 the way I can today.”[44]

The establishment of two new private newspapers Oea[45]and Quryna[46] on August 20, 2007 created new avenues for a certain amount of criticism of officials which would have been unthinkable in previous years. Both newspapers are owned by Al Ghad, a company closely affiliated to Mu’ammar al-Gaddafi’s son Saif al-Islam al-Gaddafi, which also established satellite TV station Al Libeyya. Libyan authorities nationalized the latter in June 2009 and a new TV station Al Wasat.  Articles have appeared criticizing the General Prosecutor for corruption, violating the law and failing to investigate complaints and the Benghazi local authorities for corruption.[47] On September 3, 2009, lawyer Mohamed Allagi wrote an article in Oea criticizing the lack of judicial independence in Libya.[48] These newspapers act as mouthpieces for the so-called ‘reform’ groups closely affiliated with Saif al-Islam al-Gaddafi’s political position, but the fact that these criticisms have been voiced in a public forum reflects the existence of some tolerance towards limited political diversity. 

 Independent Libyan news websites based abroad, such as Libya Al Youm, Al Manara and Jeel Libya, which publish information that is critical of the government, are accessible in Libya and their correspondents are allowed to operate, though not without harassment. Libya Al Youm, an independent United Kingdom-based news website, is one of the primary references for anyone seeking news about what happens in Libya. Despite the fact that it frequently publishes articles critical of the government and news on the most sensitive of issues such as the Abu Salim demonstrations, it maintains two correspondents in Libya, based in Tripoli and Benghazi, respectively.  The Tripoli correspondent, Fathi Ben Eissa, told Human Rights Watch that he has a press card and is able to interview Libyan officials and go to high-level press conferences despite the fact that Libya al-Youm is not registered in Libya and continues to publish articles critical of the political system and the authorities.[49] 

On November 22, 2008 Agence France-Press was the first global news agency to formally open a bureau in Tripoli with an accredited foreign correspondent and on February 24, 2009 international newspapers and magazines such as the International Herald Tribune and Newsweek became available for sale in Libya for the first time in a quarter of a century.

These changes have occurred in spite of the continued repressive legal framework and take on more significance when viewed in that context because journalists take significant risks by writing critically of government policies and abuses. The 1969 Constitutional Proclamation on December which guaranteed some rights, such as the right to work, health care and education, provides for freedom of opinion only “within the limits of public interest and the principles of the Revolution.”[50] Article 178 of the Libyan penal code orders life imprisonment for the dissemination of information considered to “tarnish [the country’s] reputation or undermine confidence in it abroad.” Article 207 imposes the death penalty for “whoever spreads within the country, by whatever means, theories or principles aiming to change the basic principles of the Constitution or the fundamental structures of the social system or to overthrow the state’s political, social or economic structures or destroy any of the fundamental structures of the social system using violence, terrorism or any other unlawful means.” There are still political prisoners imprisoned under these provisions which criminalize free speech, such as the case of Abdelnasser al-Rabbasi discussed below in Section VII.

In a speech in August 2007, Saif al-Islam al-Gaddafi spoke openly of the limits to freedom of expression in Libya identifying four “red lines” which are “the application of Islamic law, the Koran and its requirements, security and stability of Libya, its territorial integrity and Mu’ammar Gaddafi.”[51] The existence of these four lines was confirmed to Human Rights Watch by journalists and by officials such as the acting General Prosecutor. [52] In November 2008, an unidentified caller on a live program on Benghazi Local Radio criticized Saif al-Islam saying “Who is this Saif al-Islam on whose behalf Libyan youth are demonstrating? And where were they when people were being publicly executed in the 1980s?”[53] As a result of this call, Younis al-Magbari, the director for Press and Broadcasting at the General People’s Committee for Media and Culture, ordered disciplinary measures to be taken against the broadcaster and producer of the program. In an interview to Al Jazeera, however, al-Magbari said he’d revoked that decision and apologized to the journalists. This came after the intervention of Saif al-Islam who said that since he was not a “red line” he could be criticized.[54] As one journalist told Human Rights Watch “the problem is that you can never tell when a particular line is red.”[55]

Human Rights Watch met with a group of journalists at the Tripoli Journalists’ Association, the largest section of the Journalists’ Syndicate, to discuss the state of freedom of expression in Libya. One journalist told Human Rights Watch that “there is a margin of freedom, but it’s not real freedom because it depends on the mood of the ministers. This freedom goes up and down.”[56] Another journalist interjected that “there are clear boundaries, and you lose your job if you go beyond them, or they will freeze your salary.”[57] The journalists, editors and even the acting General Prosecutor with whom Human Rights Watch met all spoke matter-of-factly about the four “red lines” identified by Saif al-Islam al-Gaddafi in August 2007. Nevertheless, one journalist said that “overall, it’s true, we have a bit more freedom of expression. Before, we wouldn’t even try to express ourselves. Now we’re taking risks.”[58]

Prosecution of Journalists

This limited expansion of freedom of the press has brought with it a corresponding increase in the number of defamation claims brought against journalists.  Overly broad provisions in the penal code criminalize free speech.  Under the penal code and the 1972 press law, a defamation conviction carries a sentence of imprisonment, which cements journalists’ tendency towards self-censorship. 

For example, journalist Tarek el-Houny, who writes for Quryna, wrote an article entitled “The Governor Is Not Governing” criticizing the lack of metal coins available in the country as a result of policies by the central bank of Libya. On November 30, 2008 the Press Prosecutor summoned him on charges of defamation after a complaint was filed by the central bank governor, Farahat Ben Qaddara, who claimed the article was slanderous. Tarek el-Houny told Human Rights Watch that he had criticized the financial policies of the governor and not the man himself but the prosecutor had questioned him about his article and subsequently told him to present himself once a week before the office of the prosecutor to sign in.[59] After two months of this he discovered that his case had been brought before a court. The trial was suspended after the intervention of Saif al-Islam al-Gaddafi. El-Houny told Human Rights Watch that such an experience would increase self-censorship even more, saying “this experience made me very nervous. I now think twice about every line I write and am very cautious.”[60] 

On January 11, 2009, the State Security Prosecutor summoned Garyounis University political science professor Fathi el Baaga on charges of “incitement against the Jamahireya system” for publishing an article on May 5, 2007 in Quryna entitled “Where is Libya Heading?” which criticized the current political system in Libya.[61] He was released on bail on condition he sign in at the Benghazi Press Prosecutor’s office once a week. On January 16, Libya Al Youm reported that Public Prosecutor Mohamed al-Misrati dropped all the charges against him after the intervention of Saif el Islam al-Gaddafi.[62]

On October 21, 2009, Mohamed al-Sareet, a Libyan journalist, wrote on Jeel Libya, an independent news website based in London, about a rare demonstration in Benghazi by women who live in a state-run care residence for women and girls who were orphaned as children, calling for an end to sexual harassment they said they had experienced in the center. The demonstrators were also demanding the return of the center's former director. On October 22, local police summoned al-Sareet to the Hadaek police station for questioning. On October 26, the General Prosecutor's Office summoned him for further questioning and charged him with criminal defamation, which carries a prison sentence. Jeel Libya's director told Human Rights Watch that al-Sareet had received threats to burn down his house to intimidate him into retracting his article.[63] On October 29, however, the General Prosecutor’s office opened an investigation into the claims and on October 31 he charged the former head of the residence with sexual harassment. The Gaddafi Foundation also met with al-Sareet and assured him that the charges against him would be dropped.

Libya’s International Obligations and Libyan Law

The government’s strict control of the media contradicts Libya’s obligations under international law. Article 9 of the African Charter on Human and Peoples’ Rights, ratified by Libya in 1986, guarantees that, “[e]very individual shall have the right to receive information,” and that “every individual shall have the right to express and disseminate his opinions within the law.” Article 19 of the International Covenant on Civil and Political Rights, to which Libya is a state party, sets out minimum international standards for freedom of expression. It states: “Everyone shall have the right to hold opinions without interference; 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 in print, in the form of art, or through any other media of his choice.”[64] Any limitations to this right must be necessary, proportionate and established by law.

Applicable Libyan law is far from meeting international standards. The country’s Constitutional Declaration of 1969 includes a broadly worded limitation clause that opens the door to abuse. It states: “Freedom of opinion is guaranteed within the limits of public interest and the principles of the Revolution.”[65] The Great Green Charter for Human Rights, passed in 1988, does not explicitly enshrine the principle of free speech or the right to information. Law 20, On Enhancing Freedom, adopted in 1991, states that “every citizen has the right to openly express his thoughts and opinions in the People’s Congresses and in the Jamahiriya [mass] media,” unless “he uses [that right] in violation of the people’s authority or for personal motives.”[66]

The 2009 proposed draft penal code contains some overall improvement but still retains provisions that violate freedom of expression. Article 198 states that offending a public official shall be punishable by imprisonment. Article 155 provides for imprisonment for insulting Mu’ammar al-Gaddafi and Article 167 provides for life imprisonment for promoting principles with the aim of changing the Jamahiriya system using illegal means.  The restrictions on freedom of expression found in Articles 155, 156, 159, 167, 198 and 230 go beyond what is permitted under international law and create an atmosphere which stifles free speech and criticism. The right to criticize one’s government has particularly high priority in the protections of international law because it is precisely one of the rights most likely to be met with harassment, abuse, and denial by governments. The Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples' Rights in 2002, says states shall ensure their laws on defamation comply with the standard that “public figures shall be required to tolerate a greater degree of criticism.”[67]

 

[44] Human Rights Watch interview with Libyan journalists, Tripoli, April 21, 2009.

[45] See Oea, http://www.oealibya.com/ (accessed August 23, 2009).

[46] See Quryna, http://www.quryna.com/index.php (accessed August 23, 2009).

[47] See Osama al-Said, “Al Muftari Al Aam,” Quryna, February 10, 2009, available at http://www.quryna.com/

[48] Mohamed Allagi, “Justice is Harmed Oea, September 3, 2090, http://www.oealibya.com/oea-sections/articles-and-sections/5941-2009-09-03-01-11-26, (accessed September 5, 2009).

[49] Human Rights Watch interview with Fathi Ben Eissa, correspondent, Libya Al-Youm, Tripoli, April 26, 2009. For examples of such articles, see http://www.libya-alyoum.com/look/article.tpl?IdLanguage=17&IdPublication=1&NrArticle=18851&NrIssue=1&NrSection=14 (accessed Sept. 29, 2009).

[50]  The Green Book is available in English at http://books.google.com (accessed Sept. 29, 2009). The website of the World Center for the Study and Research of the Green Book, an important Libyan institution, is available at www.greenbookstudies.com (accessed Sept. 29, 2009).

[51] Saif al-Islam al-Gaddafi, speech given at the Second Meeting of the Youth of Benghazi, Benghazi, August 20, 2007, http://gdf.org.ly/index.php?lang=en&CAT_NO=114&MAIN_CAT_NO=9&Page=105&DATA_NO=252 (accessed August 15, 2009).

[52] Human Rights Watch interview with Acting General Prosecutor, Tripoli, April 22.

[53] Quoted in “Saif al-Islam Defends the Right of Libyan Citizens to Criticize Him,” Al Jazeera, November 15, 2009, http://www.aljazeera.net/News/archive/archive?ArchiveId=1161467, accessed July 18, 2009.

[54] Ibid.

[55] Human Rights Watch interview with Libyan journalists, Tripoli, April 21, 2009.

[56] Human Rights Watch interview with Libyan journalists, Tripoli, April 21, 2009.

[57] Ibid.

[58]  Human Rights Watch interview with a Libyan journalist, Tripoli, April 21, 2009.

[59]  Human Rights Watch interview with Tarek al-Houni, Tripoli, April 21, 2009.

[60]  Human Rights Watch interview with Tarek al-Houni, Tripoli, April 21, 2009.

[61]  “New Charges Against El Baaga,” Libya Al Youm, January 11, 2009, http://www.libya-alyoum.com/look/article.tpl?IdLanguage=17 (accessed July 3, 2009).

[62]  “After the Intervention of Saif al-Islam, Process Against El Baaga and Mehyar Cancelled,” Libya Al Youm, January 16, 2009, http://www.libya-alyoum.com/ (accessed July 3, 2009).

[63] Human Rights Watch phone interview with Adel Sunalla, October 26, 2009.

[64]   International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Libya in 1976, article 19.

[65]  Constitutional Proclamation of December 11, 1969, Libya, article 13.

[66]  Law 20 (1991), On Enhancing Freedom, article 8.

[67] Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples' Rights, 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia, Section XII.