ARTICLE 19 is deeply concerned by the arrest and detention of the Directors of publication of the newspapers “L’Alternative” and “Fraternité”, Ferdinand Ayité and Joël Egah, on 10 December, 2021. They are accused of “defamation” and “outrage of authority”. These sanctions follow a complaint filed by two government ministers, the Minister of Justice, Pius Agbétomey, and the Minister of Commerce, Kodjo Adedze, who are also pastors. Isidore Kouwonou, another journalist, is being placed under judicial control. ARTICLE 19 calls for their immediate and unconditional release and for the lifting of the judicial control.
On 10 December, 2021, the journalist Ferdinand Ayité was summoned by the Research and Investigations Brigade (Brigade de Recherches et d’Investigations – BRI) to answer questions about his remarks during the program “L’Autre Journal” which was broadcasted on YouTube. The summoning followed complaints from two government ministers. After being questioned, Ayité was arrested and placed under detention order. He is being prosecuted for “defamation” and “outrage of authority”. These prosecutions are made on the basis of the provisions of the penal code in its articles 490, 491, 492 and 497 and the code of the press and communication. The Public Prosecutor, Mr. Talaka Mawama, qualified these charges as arising from common law (droit commun). In fact, articles 3 and 156 of the code of the press and communication excludes from its scope the activities of cinema production including social medias. If convicted, the accused could potentially face a prison sentence of six (06) months to two (02) years and a fine of five hundred thousand (500,000) to one million (1,000,000) CFA francs or one of these two penalties.
The next day, 10 December, 2021, two other journalists who had participated in the program, Joel Egah, Director of Publication of “La Fraternité” and Isidore Kouwonou, host of the debate program “L’Autre Journal”, were also summoned by the BRI. They were also questioned for the same reason as Ferdinand AYITE. Joel was arrested and placed under a detention order, and Kouwounou was placed under judicial control.
Contacted via telephone by ARTICLE 19, the lawyer of the three journalists, Mr. Elom Kpade, denounced: “The absence of a legal basis, and a legal gap in this case. Journalists are bound by the press code in Togo and the government has decriminalized press offenses since 2004. Underlining the fundamentals of criminal law, he emphasized that the prosecutor cannot prosecute an individual if there is no legal basis for the offense for which the person is being prosecuted”.
“Despite the decriminalisation of press offenses, the Togolese authorities through other means, continue to silence journalists and media critical of them. ARTICLE 19 deplores the instrumentalization of the judiciary and the repression of dissenting voices to stifle freedom of expression and the press.” said Fatou Jagne Senghore, Regional Director of ARTICLE 19 West Africa
The Togo press code only provides for fines for press offenses such as fake news and defamation. No prison sentences should be applied.
In addition, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the Organization of American States (OAS) Special Rapporteur on Freedom of Expression stated in a joint declaration that: Custodial sentences for defamation are not justifiable; all laws that provide for criminal penalties for defamation should be abolished and replaced, if necessary, by appropriate civil defamation laws.
In addition, the Declaration of Principles on Freedom of Expression and Access to Information specifically emphasizes that public figures should tolerate more criticism than ordinary citizens and that penalties for defamation should never be so severe as to interfere with the right to freedom of expression. States are also reminded that custodial sentences for defamation violate the right to freedom of expression and that criminal defamation laws should be repealed. It goes further by stating that: states shall not infringe upon the right of individuals to seek, receive and impart information through any medium of communication and digital technologies.
In addition, The African Court on Human and Peoples’ Rights and the ECOWAS Court of Justice unequivocally condemn the use of custodial sentences against journalists for defamation. This is complemented by serious concerns from the former Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, who in his report in 2017 called on states to ensure their obligation to protect and promote freedom of expression online, stressing that states may not interfere with, or in any way restrict, the freedom of opinion.
Furthermore, arbitrary arrest and detention are violations of international human rights law, including Article 9(1) of the International Covenant on Civil and Political Rights, which states that “no one shall be subjected to arbitrary arrest or detention,” as well as Article 9 of the Universal Declaration of Human Rights, which states that “no one shall be subjected to arbitrary arrest, detention or exile.
ARTICLE 19 urges the Togolese government to respect its commitment to freedom of expression and press freedom.
