Moroccan authorities should drop the case against a leading independent journalist charged with "harming territorial integrity." Parliament should amend the draft press law currently before it to abolish this offense, designed to punish anyone who questions Morocco's claim to Western Sahara.
The trial of Ali Anouzla, editor-in-chief of the Arabic news site Lakome2.com, which is due to open on February 9, 2016, is based on an interview in the German daily Bild, which quoted him as calling the Western Sahara "occupied." Anouzla risks up to five years in prison and a fine under Article 41 of the current Press Code, which makes it a crime to publish anything that "harms the Islamic religion, the monarchic regime, or territorial integrity."
"Anouzla's upcoming trial is a reminder that Morocco's most notorious speech-chilling law is no outmoded relic, but a tool ready to use against critics," said Sarah Leah Whitson, Middle East director. "While the draft press code contains significant positive provisions, lawmakers should remove the 'harming territorial integrity' offense from this and all other laws."
Morocco claims sovereignty over Western Sahara, a territory it seized in 1975 when the Spanish colonial power withdrew. Moroccan authorities shun the term "Western Sahara," referring to the place instead as "the Moroccan Sahara" or the "southern provinces." The United Nations does not recognize Moroccan sovereignty, refers to the territory as "Western Sahara," and considers it a "non-self-governing territory" entitled to hold a referendum on its political future.
Anouzla denies referring to "the occupied Western Sahara" in his interview with Bild, published online on November 14, 2015. He said the publication had mistranslated his reference to "the Sahara" from Arabic. In early February, the daily published a correction amending the text to say "the Sahara." The trial is nevertheless scheduled to proceed in the Rabat Court of First Instance, Anouzla told Human Rights Watch.
The draft Press Code (No. 88-13), which the Government Council approved on December 23, eliminates prison terms and fines for all nonviolent speech offenses, including "harming territorial integrity," but stipulates in article 71 that a court may still suspend a publication for this offense. Moreover, those convicted of that offense may still be sentenced to prison under both the current Penal Code and its draft revisions. The Penal Code provides in article 190 that "any Moroccan or foreigner who undertakes by any means to harm Morocco's territorial integrity is guilty of harming external state security," punishable by 5 to 20 years in prison in peacetime and by death during wartime.
Morocco fought a war with the Polisario Front, the Algeria-backed Sahrawi independence organization, from 1975 until 1991, when the UN brokered a ceasefire premised on a plan to hold a referendum on self-determination in Western Sahara. It has not taken place.
A draft addendum to the Penal Code (No. 73-15), which the Council of the Government approved on December 23, stipulates a prison term of up to five years in prison and a fine for "insulting the Islamic religion or the monarchic regime or inciting against the territorial integrity of the country."
The remarks by Anouzla that triggered the charges were in the context of explaining constraints on the media in Morocco:
There is no law that prohibits concrete subjects. This is why journalism in Morocco is a minefield. The dangerous subjects for example are any criticism of the palace, corruption within government institutions, human rights violations, torture, unfair judicial procedures or the situation in the Sahara. I have written about all of these subjects. But our state prefers PR-[public relations] journalism.
The judicial police summoned Anouzla on November 24 and questioned him about the term "Occupied Western Sahara" in the Bild article, Anouzla said.
Anouzla has been under investigation in an earlier case since 2013, without the case proceeding to trial or being dropped. He was held in pretrial detention for a month in 2013 while being investigated for "justifying" and "providing material support" for terrorism, because of an article on his website, known as Lakome.com at the time. It said that Al-Qaida in the Islamic Maghreb had put a video online in which it directed its wrath at the monarchy for the first time and urged Moroccans to join the jihad. The article contained a link to the website of a major Spanish daily that featured the video.
In the nearly two and-a-half years since Anouzla left jail, the investigating judge in the case has questioned him only a few times, most recently on November 26.
The International Covenant on Civil and Political Rights, in article 19, allows governments to impose restrictions on freedom of expression if they are "provided by law and are necessary... for the protection of national security or of public order." The UN Human Rights Committee, which provides authoritative interpretation of the covenant, has written, in General Comment 34, that "restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected."
In other words, prosecuting someone who peacefully express dissenting views on the Western Sahara issue, or who uses officially rejected nomenclature for that territory, constitutes curbs on speech that cannot be justified under international human rights law.
"Even if Anouzla had used the phrase he denies using, he should face public debate, but not prosecution," Whitson said. "Instead, a journalist is facing trial for mentioning the red lines that constrain journalists in Morocco."