Hon. Ourveena Geereesha Topsy-Sono
Special Rapporteur on Freedom of Expression and Access to Information
African Union
London – Dakar, 11 January 2023
Request for intervention – Senegal ‘false information’ legislation and its problematic enforcement
Dear Madam,
I am writing to you on behalf of ARTICLE 19, an international freedom of expression organisation, to request your intervention with the Government of Senegal regarding the deteriorating situation for freedom of expression in the country.
In particular, we are concerned about the prosecution of activists and journalists for exercising their right to freedom of expression under Senegal’s repressive legislation. Several journalists reporting on matters of public interest have been prosecuted under problematic prohibitions on spreading ‘false information’. The most prominent cases include:
- The case of Pape Alé Niang, an investigative journalist, who published an article on judicial proceedings against the main opposition leader in Senegal. He was arrested on 6 November 2022 and detained on charges under Articles 64, 370, 255, and 430 (430 and 370 are related) of the Penal Code for ‘disclosure of information likely to harm National Defence’, ‘concealment of administrative and military documents’, and ‘dissemination of false news likely to discredit public institutions’. On 2 December 2022, Niang started a hunger strike to protest against his arbitrary detention. On 14 December, he was provisionally released and was placed under judicial control, along with the withdrawal of his passport and the prohibition to travel and communicate about the case. Niang was arrested again on 19 December. His lawyer, Mr. Khoureychi Ba, confirmed that the arrest was issued because Niang spoke about his case on a live broadcast and thus violated the conditions of his release. He then resumed his hunger strike and became so seriously weak that he was transferred to a special wing for prisoners at the main hospital in Dakar, where he refused all medical assistance. He was eventually released on 10 January, but remains under judicial control in line with a set of measures that include the obligation to hand over his passport, to report to the office of the investigating magistrate once a month, to not to leave the territory, and to refrain from speaking to the media about his case.
- The case of Abdou Bara Dolly, a member of parliament, who was arrested on 10 June 2022 following critical remarks he made against President Macky Sall during a demonstration by the two coalitions of the opposition (Yewi Askan and Wallu) in Dakar. He was charged and placed under a detention order for offences of insulting the head of state (article 80 of the Penal Code), dissemination of false news (article 255 of the Penal Code) and criminal defamation (article 258 of the Penal Code). Dolly was conditionally released on 8 July but he remains at the disposal of the court for his trial.
- The case of Outhmane Diagne, an activist, who was arrested and detained in August 2022 for spreading false news, and for deleting and modifying newspaper data. This happened after he shared the front pages of satirical newspapers on his Facebook page, along with three smiley-face emojis. He remains in custody at this time.
- The case of Abdou Karim Gueye and Cheikh Oumar Diagne, who were placed in police custody following remarks made after the death of an imam, Alioune Badara Ndao, during a TV programme on 8 September 2022. The two defendants accused the State of being the root cause of Imam Ndao’s illness. They were charged with ‘broadcasting false news’. After more than six months of detention, they were conditionally released on 10 January, 2023.
Although we welcome the release of Abdou Karim Gueye, Cheikh Oumar Diagne, Abdou Bara Dolly, and Pape Alé Niang, their freedom is conditional.
ARTICLE 19 notes that all of these activists have been prosecuted inter alia for disseminating ‘false or misleading information’, prohibited by Article 255 of the Senegal Penal Code. As long as these provisions and repressive legislation remain in force, these individuals’ cases can still progress, and they can be subject to prosecution. Furthermore, other individuals may be targeted. Under these provisions, an individual, organisation or company could potentially face fines of between 100,000 and 1,500,000 West African CFA francs and between one and three years of imprisonment. We are concerned about these provisions as they do not comply with international freedom of expression standards. In particular, we note that terms such as ‘false’ and ‘misleading’ information are not defined under international human rights law. Protecting persons from ‘false information’ is not, as such, a legitimate aim for justifying restrictions on the right to freedom of expression under Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR).
We also note that your predecessor, together with other special mandates on freedom of expression, cautioned in their 2017 Joint Declaration that the label of ‘fake news’ is increasingly being used by persons in positions of power to denigrate and intimidate the media and independent voices, increasing the risk of such persons to threats of violence, and undermining public trust in the media. An important point of principle remains that ‘the human right to impart information is not limited to “correct statements”, [and] that the right also protects information and ideas that may shock, offend or disturb’. The special mandates made clear that ‘general prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information”, are incompatible with international standards for restrictions on freedom of expression’.
In light of the problematic nature of the provisions of Article 255 of the Penal Code and the repressive application of these provisions by Senegalese law enforcement, we respectfully urge you to publicly intervene with the Government of Senegal. In particular, we hope that you will publicly condemn these prosecutions, and urge the Government to urgently abolish these provisions and drop all the charges against those who have been prosecuted under them.
We stand ready to provide further information about these cases or any other information you might need. Thank you for your consideration.
Yours sincerely,
David Diaz-Jogeix
Senior Director of Programmes
ARTICLE 19
cc Maateuw MBAYE
ARTICLE 19 Senegal – West Africa