(Tunis) – An appeals court on October 17, 2013, overturned the conviction of a rapper on charges of “insulting the police”. But Tunisian legislators should abolish laws that criminalize defamation and “insulting” state officials and institutions.
A district court had sentenced the rapper, Klay BBJ, to six months in prison for performing lyrics it deemed “insulting” at a summer music festival. Laws criminalizing peaceful criticism and even “insults” to public officials and institutions violate international standards on freedom of expression, Human Rights Watch said.
“It’s great to see Klay BBJ free, but meanwhile he spent three weeks in prison and never should have been charged in the first place,” said EricGoldstein, deputy Middle East and North Africa director at Human Rights Watch. “Tunisia needs to stop arresting people for offending government officials or institutions and get rid of the laws that criminalize that kind of criticism.”
Since the Tunisian revolution in 2011, authorities have repeatedly used these and other repressive laws of the previous government to prosecute speech they consider objectionable. The National Constituent Assembly, which is also the legislature, has made no move to abolish these laws.
During the appeal before the Grombalia First Instance Court, the defense argued that Klay BBJ had not insulted the police and that in any event,his song is an artistic creation protected by the right to freedom of expression under Tunisian and international law. The defense also said that the penal code article on insulting a public servant applies only to insults to individuals, whereas the song addresses the police as an institution. The court will announce its reasoning for overturning the conviction when it publishes its judgment.
The charges against Ahmed Ben Ahmed, who is known as Klay BBJ, and another rapper, Alaa Eddine Yaakoubi, better known as Weld El 15 (“The 15-Year-Old Boy” in Tunisian Arabic), stem from their performance on August 22 at the International Festival of Hammamet, which included songs critical of the police and of the authorities.
Shortly after the performance, police assaulted the two rappers, arrested them, and held them for several hours, and then released them pending an investigation. The district court of Hammamet convicted them a week later on charges of “insulting the police,” defamation of public officials, and harming public morals, under articles 125, 226 bis, and 247 of the penal code.
The court had failed to notify the two of their trial in advance and convicted them in absentia, Ghazi Merabet, a lawyer for the rappers, told Human Rights Watch. On September 18, Klay BBJ exercised his right to have a new trial with him in the courtroom. At that trial, on September 26, the same tribunal sentenced him to six months in prison on the same charges. He spent three weeks in prison before his October 17 release.
At the October 17 appeal session, officials initially barred the media, a Human Rights Watch researcher, and supporters of the rapper from being in the courtroom, in an encroachment of the principle of public hearings. Police officers told those attempting to enter the courtroom that the prosecutor of the tribunal had instructed them not to admit the public, but after two hours, officers allowed them inside.
At the appeal hearing, the rapper’s lawyers invoked a case in France in which the Criminal Chamber of the Rouen Appeals Court acquitted members of the rap group Sniper of the charge of incitement to violence. That court concluded that rap songs are by their nature provocative and sometimes crude and that they must be respected and protected as a form of freedom of speech.
Six defense witnesses who attended the August 22 performance in Hammamet testified at the appeal that they had not heard the rapper pronounce words or expressions insulting the police or other state institutions. Klay BBJ’s songs denounce injustice, police violence, and what he calls the authoritarianism of the current government.
In March, Weld El 15 released a video for his song “Cops Are Dogs” containing a montage of scenes showing the police hitting people. After he went into hiding, the First Instance Court of Manouba initially sentenced him to two years in prison in absentia. He later surrendered and asked to have the case reopened. On July 2, the Appeals Court of Tunis reduced his sentence to six months, suspended.
Article 125 of the Tunisian penal code punishes by up to one year in prison anyone who insults a public servant in the course of the performance of the person’s duties. Article 247 provides for up to six months in prison for defamation of public officials, and article 226 bis prohibits hampering public morality or decency through acts or words.
Since early 2012, judicial authorities have prosecuted numerous journalists, bloggers, artists, and intellectuals for peaceful expression.
International standards prohibit applying the notion of defamation to state bodies and institutions. Governments and their institutions should not be able to file defamation suits or have such suits filed on their behalf. In his April 20, 2010 report, the United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, stated: “Criminal defamation laws may not be used to protect abstract or subjective notions or concepts, such as the State, national symbols, national identity, cultures, schools of thought, religions, ideologies, or political doctrines.”
The Johannesburg Principles on National Security, Freedom of Expression, and Access to Information, a set of principles that many experts agree upon and is widely used, states in principle 7(b):
No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies or public officials, or a foreign nation state or its symbols, government, agency, or public official unless the criticism or insult was intended and likely to incite imminent violence.
“An artist should be able to offer critical and provocative work without fearing arrest and prosecution,” Goldstein said.