Tripoli — Libyan judicial authorities should immediately drop all criminal charges against two Libyan politicians accused of "insulting religion" and "instigating division." Authorities also should drop criminal charges against a newspaper editor accused of "insulting" members of the judiciary.
Both cases are expected to be heard in separate sessions at the Tripoli Courts Complex on December 15, 2013. All charges violate the international protection of freedom of expression, Human Rights Watch said.
"It's disappointing that the prosecutor is still able to use old Gaddafi-era laws to muzzle free speech," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. "Anyone in Libya who wants to discuss corruption or other sensitive issues in public apparently still needs to look over their shoulder to see if they will be arrested."
Ali Tekbali, the Libyan National Party's policy and campaigns manager, and Fathi Sager, its secretary general, face multiple charges, including "insulting Islam" and "instigating division," for using allegedly offensive posters during the 2012 election campaign for the General National Congress. Two of the charges carry a possible death sentence.
In a separate case, the editor of al-Ummah newspaper, Amara al- Khatabi, is on trial for "insulting" members of the judiciary after publishing a "black list" with 87 names of allegedly corrupt judges and prosecutors. Al-Khatabi could face up to 15 years in prison.
Libya National Party members placed posters relating to social issues, including women's role in society, in public spaces in Tripoli in June 2012, during the election campaign. The posters depicted several characters, including an elderly bearded man with a turban and protruding nose. The prosecution claims the character was transmitted from a controversial cartoon depicting the Prophet Muhammad that appeared in the French magazine Charlie Hebdo, in 2011 and 2012.
The General Prosecutor's Office charged the two men on March 6 under article 203 of the penal code with "instigating division," under article 207 with "insulting Islam and the prophet," under article 291 with insulting religion by "publishing satirical drawings in public spaces," and under article 318 with "publicly instigating hate" and "harming national security." Articles 203 and 207 are among at least 30 articles in Libya's penal code that carry a maximum sentence of death. The prosecution also invoked article 76, which states that "[i]n the case of multiple charges, the highest punishment will be prescribed."
Members of an armed formation under the Supreme Security Committee, a quasi-official body operating under the Interior Ministry, raided the party headquarters in Tripoli on November 30, 2012. The defendants told Human Rights Watch that the security officials confiscated posters related to the election campaign and sealed the party office by order of the general prosecutor. It has not reopened.
Public Prosecutor Naema Al Ajeili charged al-Khatabi over publication of "The Judiciary Black List," in the November 21, 2012 issue of al-Ummah. The article listed 87 judges and prosecutors, alleging they had illicit earnings, had accepted bribes, and remained loyal to Muammar Gaddafi. The preface to the article stated that al-Ummah had received this list from an unnamed source and was reprinting it as received.
Al-Khatabi was arrested on December 19, 2012, and spent close to six months in pretrial detention. He was charged on January 1 by the fifth district criminal court with "defaming" members of the judiciary. He was transferred to a hospital on April 6 because his health was deteriorating from a hunger strike to protest his detention, his lawyer, Ramadan Farag Salem, told Human Rights Watch.
On April 15, the case was referred to a specialized court at the Tripoli Appeals Court, which ordered his release on bail because of his health condition, but barred him from traveling. On August 21, the specialized court president, Judge Ali Zwai, ordered the return of al-Khatabi's passport to allow him to get medical treatment abroad. Al-Khatabi left Libya in August for medical treatment and has since returned.
The prosecutor charged Al-Khatabi under article 195 of the Gaddafi-era penal code, which says that, "[..] any person who may launch what may be regarded as an attack against the Great Fateh Revolution or its leader shall be punishable by imprisonment ... . The same penalty shall be levied against any person who insults the popular authority, a judicial, defense, or security body [... ]"
In June, al-Khatabi appealed to the Supreme Court, contesting the constitutionality of article 195. The Supreme Court has yet to reach a decision on the appeal.
Libya's provisional constitutional covenant, which is binding for state prosecutors, says, in article (14), that the state "shall ensure freedom of opinion, freedom of speech for individuals and groups, freedom of scientific research, freedom of communication, freedom of press, media, printing, and distribution," so long as it is not "contrary to public order."
"The list that al-Ummah published may or may not have been fair, but the right way to confront false allegations is with civil remedies," Whitson said. "Libyans can criticize the publisher and stop buying this newspaper, but criminal law should stay out of it."
Articles 195, 203, 207, 291, and 318 of the Libyan Penal Code, all of which prescribe prison terms or the death penalty for speech-related offenses, violate Libya's constitutional declaration and international human rights law and should be repealed or amended, Human Rights Watch said.
To protect the right to freedom of speech as explained by the United Nations Human Rights Committee and others, Libya should eliminate all laws that provide penalties for "insulting" public officials and institutions, and eliminate laws criminalizing defamation, Human Rights Watch said. While everyone has a right to redress when their reputation has been impugned, the remedies should be limited to civil suits, with penalties other than imprisonment. Moreover, to protect the public's interest in free-ranging debate on matters of governance, courts should apply a very high threshold before imposing sanctions on people deemed to have defamed public figures.
On June 14, 2012, the Libyan Supreme Court declared a law that criminalized free speech unconstitutional. Law 37/2012, which the National Transitional Council had passed on May 2, 2012, criminalized a variety of types of political speech, including speech that "glorifies the tyrant [Muammar Gaddafi]," did "damage [to] the February 17 Revolution," or insulted Libya's institutions. The court's reasoning should similarly apply to penal code provisions criminalizing speech, including insults to religion or public officials.
Libya is a party to the International Covenant on Civil and Political Rights and the African Charter on Human and People's Rights, both of which protect the right to freedom of expression.
Human Rights Watch opposes capital punishment in all countries and in all circumstances as a matter of principle, because the inherent dignity of the person is inconsistent with the death penalty. This form of punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error. International law requires countries that retain the death penalty to apply it only for the most serious crimes.