In recent years the ranking of Guinea in Reporters Without Borders’ World Press Freedom Index has been declining losing six points since 2017 to rank 107th out of 180 countries in 2019[1]. Of the reasons, RWB cited the fact that public authorities “try to censor media critical of power under administrative or legal pretexts”.
In fact, there has been an ongoing trend of judges preferring to investigate and charge journalists under the 2016 Cyber-Security and Protection of Personal Data Law[2] for press offenses instead of the ones on the Freedom of the Press [3] and/or the High Authority for Communication[4]. since March of this year, half a dozen of journalists has been charged under the Cyber Criminality and Protection of Personal Data Law.
Investigating judges in particular started enforcing its provisions only this year, charging journalists under article 32 of Chapter X which states that “any person who produces, disseminates or makes available to others information that is likely to disturb public order or security or to infringe on human dignity by means of a computer system is guilty of an offense and will be punished by imprisonment from six months to 5 years…” Beyond the vagueness contained is this provision, equating practicing journalism to committing an offense is on itself a violation of the law and illegal for many reasons.
First, Press Freedom in Guinea is shrined and upheld first and foremost in the 2010 constitution[5], the supreme law of the country, which states that “the freedom of the press is guaranteed and protected” (art. 7) and mandates the High Authority for Communication (HAC) to “guarantee and ensure the freedom and protection of the press and all mass media in accordance with the law (art. 125). The Freedom of the Press Law is clear on how to deal with press offenses and nowhere it is mentioned that journalists should be put in jail for press offenses, rather, if found guilty of any press offense charge they should only be fined up to around 550 USD (art. 98) even for more serious offenses “against the security of the State” (art. 99). Regardless of such unambiguous provisions that decriminalize all press offenses, journalists have been held in preventive detention in police stations and put under judicial control for press articles they have wrote, published or for statements made on their radio stations.
Second, the preference by some judges to use the Cyber-Security and Protection of Personal Data is problematic given that there are some legitimacy and technical issues surrounding it and as such could not legally be enforced against citizens. In fact, only when a law is published in the national Gazette that it is enforceable. Given the fact that this has not been the case for this law then it is not enforceable. it must first and foremost be published in the national gazette where all legal official information must be published to take effect. An inquiry by a group of lawyers[6] found that only the ratification of the 2014 Convention on cyber security and the protection of personal data adopted by the African Union was published in the national Gazette not the Cyber-Security and Protection of Personal Data Law adopted by the National Assembly.
Consequently, it is not enforceable as the state used the same argument (nonpublication in the national Gazette) to delegitimize the 2010 Access to Information Law (ATI). A request by AGEPI[7] to demand the publication of the law was denied in a 2017 decision by the Constitutional Court[8] which stated that it is “impossible for the Court to order the publication of the law” given that the Court could not “prove the existence of the law”. That decision nullified the law and prompted the entire process to start over. Thus, the same argument could be used against the Cyber-Security and Protection of Personal Data Law and judges should not use its provisions against citizens including journalists in the first place.
Third, beyond the legitimacy question surrounding the Cyber-Security and Protection of Personal Data Law instituted a Computer Systems Security Center (art. 89) which has the authority to “investigate” all “infractions” made via “computer systems and electronic communications” in a clear violation and infringement on the mandate and competence of the High Authority for Communication. HAC is the only institution with a constitutional mandate to regulate “all forms of mass communication” in the country (art. 125 of the constitution). Therefore, even when the issues around its legitimacy are resolved the Center would be unconstitutional and article 89 would need to be amended.
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In conclusion, Guinea has one of the most progressive Freedom of the Press Law in the region and it should be the only legal ad legitimate law that journalists ought to be charged under for press offenses. Judges should not be allowed to cheery pick under which law to charge press offenses when the legislators have already decided the question let alone for a law that has legitimacy issues.
[2]https://www.arpt.gov.gn/sites/default/files/Documentation/loi_l2016037an_relative_a_la_cybersecurite_et_protection_des_do.pdf
[3] http://hacguinee.org/?page_id=410
[4] http://hacguinee.org/?page_id=412
[5] https://justiceguinee.gov.gn/a-propos/constitution-guineenne/
[6] https://www.africaguinee.com/articles/2019/09/07/poursuites-contre-des-journalistes-la-revelation-qui-accable-certains-juges
[7] Association Guinéenne des Editeurs de la Presse Indépendante
[8] Decision N° AC 028 of July 2017 following a request from AGEPI to order the publication of the ATI law
