Preliminary observations by the United Nations Special Rapporteur on the right to freedom of opinion and expression, Mr. David Kaye at the end of his visit to Liberia

Monrovia (9 March 2018): At the invitation of the Government, I spent the current week in Monrovia, Liberia, in order to assess freedom of expression in the country, in particular issues of press freedom, media independence and diversity, and access to information. The visit has taken place as part of my mandate, by appointment of the UN Human Rights Council, to assess the Government’s protection and promotion of the right to freedom of expression under international human rights law. 

I would like to thank the Government of Liberia for inviting me to undertake this official mission, as well as for its cooperation in arranging official meetings. During my visit I met with President George Manneh Weah, the Chief Justice of the Supreme Court, the President of the Senate, the Speaker of the House of Representatives, the Minister of Foreign Affairs and several senior Foreign Ministry officials, the Minister of State, the Deputy Minister of Internal Affairs, the Minister and Deputy Ministers of Gender, Children and Social Protection, the Minister and Deputy Minister of Information, the legal adviser to the Human Rights Protection Division of the Ministry of Justice, the Members of the National Elections Commission, the Chairperson of the Independent National Commission on Human Rights, the Chairperson of the Independent Information Commission, and other officials throughout the Government. 

I also met with the President of the Press Union of Liberia, the associate dean, students and faculty at the Arthur Grimes Law School of the University of Liberia, and many others in civil society and the media. I would like to thank all the journalists, lawyers, civil society representatives and members of the diplomatic community who met with me, providing detailed information about the situation in the country. 

I also express my gratitude to UNMIL for its assistance during the visit. 

These preliminary observations are based on information gathered before and received during the visit. I will be presenting my final mission report to the Human Rights Council. While this sets out initial recommendations, I hope to continue the dialogue initiated during the visit with stakeholders throughout Liberian society. 

Introduction

The freedom of expression serves a fundamental role in democratic societies. Adherence to fundamental norms of free expression ensures space for innovation in politics, enables investigative reporting of issues of the highest public interest, and demonstrates a commitment to the rule of law. It guarantees the public’s participation in their own governance, promising that everyone has a right to information held by public authorities.  

Since the end of the civil war in 2003, Liberia has embarked on a remarkable path of progress towards building and strengthening its democracy. Part of this progress has been the establishment of a society whose members enjoy the right to exercise freedom of expression and where the media is vibrant and often critical. Across my many meetings, Liberians in government and civil society celebrated the country’s openness to freedom of expression and its people’s tolerance for open debate. Many celebrated the free press, though the celebration came with words of concern about its sustainability in the midst of such economic duress. This open space for expression places Liberia at an extraordinary level given where it started just fifteen years ago. 

Yet, as much as Liberians should celebrate the progress that has been achieved, now is the moment to lock in the gains that have been made. Indeed, this is the message that I understood from President Weah’s inauguration speech in January. In that speech, President Weah expressed a strong commitment to freedom of expression. With a nod to the role of the legislative branch, he noted, “Together, we owe our citizens clarity on fundamental issues such as . . . freedom of speech.” He added that the tolerance of free speech by his predecessor, President Ellen Johnson Sirleaf, made possible the debate and campaign that led to his election. He added, “Now, in my turn, I will go further to encourage and reinforce not only freedom of speech, but also freedom of political assembly.”

The President’s commitment to freedom of expression – and the commitment I heard throughout his Government – deserves the support and encouragement of all sectors of Liberian society and the international community. Their commitment to guarantee in law what Liberians have been enjoying in recent years is critical and must be pursued as a matter of the highest priority, demonstrating Liberia’s commitment to rule of law. Part of this can be achieved through the adoption of laws that would bring the legal framework into compliance with international human rights law. On a foundation of the Constitutional protection of freedom of expression, Liberia’s commitment to observe international human rights law, and specific statutory assurances, Liberia could move to the next level of promoting a strong and independent media throughout the country.

With the purpose of engaging in a constructive dialogue with the Government, with civil society and with the international community, I identify below recommendations in law, policy and practice that would support the strengthening of media and freedom of expression in Liberia. 

Modification of speech laws consistent with international standards

In order to consolidate the gains made for freedom of expression over the past decade, a series of specific steps would enable Liberia to align its law with international standards. I am pleased to note that many of these steps are already a part of the conversation for freedom of expression in Liberia and that Government officials expressed strong support for several of them. The first two involve guaranteeing in law the protections to which the Liberian Government has committed in practice.

First, Liberia’s Criminal Code contains provisions that are not in line with the country’s obligations under international human rights standards. Sections 11.11, 11.12 and 11.14 of the Penal Law criminalize defamation of the President, sedition, and defamation of public authorities. Article 11.11 makes it a crime to publicly disseminate an accusation against the incumbent President regarding criminal conduct, provided that the person making the accusation knows that the accusation is untrue and intends to damage the President’s reputation.  Article 11.12 contemplates the offense of sedition through overbroad wording that can be subject to arbitrary interpretation. The section defines sedition as advocacy for sectionalism, countyism, tribalism, parochialism, or rebellion, incitement or promotion of insurrection, or accusation of the incumbent President of conduct which constitutes a violation of his oath of office. Section 11.14 makes it a crime to accuse any executive authority, judicial authority, member of the Legislature or any other public authority of the commission of a crime, in line with the provision regarding criminal defamation of the President. 

Criminal defamation involves penalizing statements made by members of the media as well as others. It has no place in democratic society, susceptible as it is to abuse against reporting, criticism, and opposition. It is a disproportionate approach to the problem of defamation, which may be subject to civil actions when appropriately constrained. Sedition criminalizes expression, in that case expression of a political nature. Both should be removed from the Liberian criminal code. Landmark cases before the ECOWAS Court of Justice, just last month, and the African Court of Human and People’s Rights in 2014 have found that criminal defamation is inconsistent with international and African human rights obligations.

The previous government signaled an intention to embark on a repeal process by signing the Declaration of Table Mountain in 2012, which calls on African governments to abolish criminal defamation laws. In 2014, President Sirleaf’s administration tabled a bill to repeal the above-noted sections of the Criminal Code. The bill is pending. Nearly every official in the administration and legislature with whom I met understood that it was time to remove the anachronisms of criminal provisions governing the press. Thus, as a matter of priority, I would urge the Government to finalize the already initiated process to repeal these provisions, in order to bring the legal framework into compliance with international human rights standards. 

Second, I learned from a number of sources about the implications of Liberia’s libel law on journalists. In particular, it allows for large financial awards in civil suits, which may cause self-censorship and severe economic difficulties for journalists and media outlets. In recent years, there have been several cases in which public authorities have filed civil libel lawsuits against local newspapers and journalists, seeking high damage awards. In 2013, the editor-in-chief of the investigative newspaper FrontPage Africa was imprisoned for libel because he could not pay USD 1.5 million in damages following a judgment. The current legal framework provides no limitation on the amount of damages that a defendant may have to pay. To avoid excessive fines and de-facto criminalization of libel, I strongly recommend that the existing legal framework be amended to provide for a reasonable cap on the amount of damages that can be sought in civil libel lawsuits. This would also be in line with the Liberian Constitutional provision in article 21 that prohibits excessive penalties.

Recommendations

1. Enact the bill to decriminalize defamation.
2. Develop legislation, in consultation with international standards, to establish strict limits on damages available in civil defamation suits.

Promoting free and independent media 

According to our interlocutors, in both government and civil society, the sustainability of the media as a powerful democratic force may be at risk unless several steps are taken, both near-term and long-term, to ensure a diverse and professional corp of journalists throughout the country and through radio, print and television. The legal reforms noted above will go a long way toward promoting press professionalism and independence, not to mention the ability to cover key issues such as corruption and other matters that require long-term dedicated coverage. Still, journalists, public authorities, and donors in the international community have a role to play as well.

The media environment in Liberia has expanded rapidly. There is an extensive number of radio stations and newspapers. Only in Monrovia, I understand that there are approximately 40 daily newspapers and over 15 radio stations, at least two of which broadcast nationwide, and community radio has expanded across the country.  At the same time, an extraordinary number of Liberians live in extreme poverty or well below the poverty line. Many if not most Liberian journalists struggle to earn a living, putting severe economic pressures on them. The newspapers in particular suffer from an extremely competitive situation in which advertising is almost exclusively governmental (including, at least until recently, from UNMIL). 

Still, Government officials and members of civil society expressed concerns about media professionalism and training. Some raised allegations of a lack of ethical practice and even blackmail as journalistic ills. I could not confirm such practices, which in any event would appear to amount to a small number of cases compared to the vast amount of journalism in the country. But the existence of such concerns among stakeholders highlights both the potential support for dangerous rollback of press freedoms and the need for strong journalism training to strengthen the profession. 

Independent self-regulation: The Press Union of Liberia, which performs a number of important functions for the profession, can also perform an independent self-regulatory function based on its Code of Conduct and a National Media Council that deals with complaints about violations of professional standards. This is especially important to keep in mind as the Legislature moves to repeal speech laws inconsistent with human rights law. Thus, in an environment of legal change, it is critical that the Press Union have the support of journalists and that it take a strong, active role in driving the professionalism (and highlighting ethical lapses) of journalism in the country. The Press Union can serve to add value, particularly in a period of massive change in Liberian media, and serve as an alternative to the legal system in dealing with allegations of unprofessional conduct.

Independent public broadcasting: The proposed Liberia Public Broadcasting Service (LPBS) Act, first introduced in 2008, would transform the state-owned Liberian Broadcasting System (LBS) into an independent public service broadcaster. The enactment of this bill would also require the repeal of Decree no. 20, which establishes the structure and organization of LBS. At this time, the LBS is a central media actor in Liberia and, by all accounts, produces some strong journalism. 

However, it is also widely seen as a Government outlet, aimed at promoting Government views. There appears to be a growing consensus to transform the LBS into a public service broadcaster with public interest journalism as its primary mission. Its transformation into an independent public broadcasting service could make significant improvement in terms of establishing a standard for quality journalism, access to information and strengthening the democratic practices. 

As part of the creation of an independent public broadcaster, Liberia should also adopt a regime of regulation of the broadcast sector. Presently, a bill to establish an independent broadcasting regulator is pending before the legislature. 

The bill would constitute a broad regulation of the audiovisual sector, including the establishment of an independent regulator. Concerns have been raised that the bill has several deficiencies that need to be addressed, including overbroad or vague wording, lack of inclusion of digital media from regulation, and a lack of reference to the principle of proportionality in its regulation of sanctions for violation of terms of licenses.  The bill also includes a section on advertising, including maximum daily and hourly advertising, and the need to clearly differentiate between advertising and editorial content. However, this section of the bill would require further elaboration and development. 

In addition, in 2012 a bill on community broadcasting was submitted to the legislature, and has since 2014 been pending before the Senate for review. It has been perceived by stakeholders to be an important tool for the reform of the community broadcasting system by establishing a proper legal framework for community broadcasting in order to secure its presence as a main pillar of the Liberian communications system. In fact, community radio is an essential part of the Liberian media environment, and it is timely to begin strengthening it in law. 

Government advertising: Broadcast and print media rely upon government advertising, with very few companies outside of the telecommunications sector devoting ad resources to support the media. I understand from a number of outlets and journalists that Government departments often fail to pay for the advertising it asks the outlets to place, with some bills running well into the tens of thousands of U.S. dollars. As a matter of urgency, given the economic woes of the industry, the Government should pay its advertising bills. But there is also a broader concern expressed by a number of interlocutors. In short, many believe that Government departments tend to place advertisements in trusted outlets that support its point of view. Such actions, if true, would have a strongly distorting effect on the media’s willingness to cover Government activities critically. But even if such distortions are difficult to prove, the possibility of such distortion will, over the long term, have a negative effect on the trust that people can have in their journalism.  

Presently there appears to be a limited, if any, regulatory framework for government advertising (based, apparently, on Liberian procurement rules). In the absence of a clear framework, the risks of Government misuse of ad dollars -- and just as importantly, the fostering of distrust among readers, outlets, and officials -- will increase. I would urge the Government to consider adopting a set of rules that would regulate official advertising and eliminate the possibility of ad placements based on the point of view expressed by an outlet or its reporters.

The situation for women journalists: As with journalism worldwide, women face particular risks and opportunities reporting in Liberia. According to interlocutors during the week, those risks may be found in the newsroom or out in the field. There is a clear gender imbalance in the numbers of journalists active in Liberia. There is a sense among many that women journalists often need to work twice as hard as their male colleagues to get sources and stories, and they may face discriminatory attitudes from editors in their assignment of stories and equipment and from authorities in their request for information. Physical security on assignment may also be inadequate, and bad infrastructure and roads make reporting, especially in rural parts of the country, a serious safety issue.

Digital access and social media: Over the course of the week I came to understand that, despite figures showing low internet penetration rates in Liberia, people across the country are increasingly using digital tools to access the news and connect with others domestically and internationally. The internet, for instance, has become an important tool connecting people in the country and the Liberian diaspora. Moreover, as mobile technology has dropped in price in a competitive market, individuals in the cities and rural areas are gaining access to the internet through smartphones, as is happening across Africa. The result is that news sources throughout the country are increasingly using online platforms, especially Facebook, to share reporting.

Public authorities should nonetheless be mindful of the challenges involved with the spread of social technology, especially in a developing economy. In particular, I would urge authorities, including the international community and private business, to ensure that access to the full internet -- and not just specialized programs or individual platforms -- expands not only to those who can easily afford it but also to those in situations of extreme poverty. Such communities have just as much a right to access information as anyone else, and to the extent such access is denied, they will find it harder to gain access to sources of information, ideas, education, and so forth. At the same time, social platforms have done some damage to the sustainability of media in other environments; since Liberian media outlets already struggle to identify sustainable business models, the further degradation of advertising revenue could be extremely disruptive to their ability to persist in an active media market.

Recommendations

1. Enact the bill to transform the Liberian Broadcasting System into an independent public broadcasting network.
2. Enact the Community Broadcasting Bill.
3. Revise and move toward adoption of the Independent Broadcasting Regulator Bill.
4. Establish a regulatory framework for government advertising ensuring accountability and transparency.
5. For the media: Reinforce and strengthen the self-regulatory system of the Press Union of Liberia, including by addressing matters of widespread public concern.
6. For private companies and international donors: Advertise in broadcast and print media outlets in order to broaden the revenue base of competitive media.
7. For all stakeholders but especially private companies and international donors: Encourage and support the expansion of internet access throughout Liberia while monitoring the impact of social media, in particular to ensure that it does not do damage to a fragile but essential Liberian media industry.

Access to Information

Liberia adopted the Access to Information Act in 2010. The Act is a strong model for freedom of information globally, a critical tool to enable anyone, citizen and non-citizen, to access information held by public authorities. As important as it is, it also requires continued implementation and enforcement. The Act mandates all government agencies to have information officers who can respond to access to information requests. However, not all agencies have information officers and there is a need for continued attention to the implementation of the law and training of information officers, as well as in the legislature and the judiciary.  While the Act includes provisions on proactive dissemination of information by government agencies, this aspect of the Act is yet to be fully achieved. 

The Access to Information Act establishes the Freedom of Information Commission (IFC) which is mandated to enforce the Act and to handle appeals arising under the Act. In addition, it is tasked with sensitization of authorities and the public about the Access to Information Act, both inside and outside of Monrovia.  During a meeting with the chairman and staff of the IFC, I was impressed by the commitment to dissemination of information about how the Act works and how individuals may use it. I want to encourage the IFC to continue on its efforts and especially to continue to think creatively about how to broaden access to the Act and to deepen its use, especially by journalists.

I also encourage better dissemination of information by government agencies, as well as by the legislature and the judiciary, which would be their obligation under the law and which would also reduce the number of requests. Similarly, I encourage the Government to engage with the media through regular press conferences, in addition to the current practice of issuing press releases.

Following Executive Order no. 22 of 2009 on the protection of whistleblowers, known as the “Whistleblower Act”, an important step was taken to transform the executive order into law through the Whistleblower and Witness Protection Bill, which was submitted to Parliament for its consideration in August 2017. I urge the Parliament to enact the law, as it would constitute a fundamental step in creating an enabling environment for access to information, investigative journalism and in the fight against corruption.

Recommendations

1. Identify and train public information officers in all government agencies.
2. Establish systems for records management.
3. Engage in proactive disclosure, including regular government press conferences from the Presidency down to all departments.
4. Allocate the resources necessary for the IFC to carry out its mandate, including reaching out to all counties in line with the strategy of decentralization.
5. Finalize and adopt the Whistleblower and Witness Protection Bill.
   

Conclusion

After two democratic elections marked by increasingly active media and free expression on the campaign trail, Liberia enjoys a particular moment to savor its early post-conflict successes. It is a fraught moment, however, given the deep economic problems the country faces and the deep and legitimate demands of the Liberian people for an improvement in the economy and basic institutions of governance. In such a moment, strengthening the system of rule of law -- in particular, guaranteeing in law the practices of recent years and the commitments of the new administration -- would signal globally that Liberia is indeed, in President Weah’s phrase, “open for business.” The recommendations above are rooted in this reality of the need for the sustainability of human rights law in Liberia.