ARTICLE 19 warns of the threats to the rights to freedom of opinion and expression arising from the amendments to the Penal Code, adopted by the Senegalese National Assembly on 25 June 2021 under an emergency procedure. We are particularly concerned about the vague provisions dealing with terrorism. We fear that the amended provisions of the Penal Code will be used against citizens or organisations that support, or continue to support, actions that are more akin to citizen participation in the exercise of democracy than to insurrection and disturbance of public order. We urge the Government to urgently review the amendment and bring it into full compliance with international freedom of expression standards. In their current form, these provisions should be repealed.
Background
The revised Penal Code was submitted to the National Assembly for review and adoption under the emergency procedure by a decree of the President of the Republic on 15 June 2021. Only 10 days later, on Friday 25 June, the National Assembly discussed and adopted the amendment. This was preceded by a tense day marked by the arrest of pro-democracy activists and militants who were attempting to demonstrate peacefully in front of the National Assembly to oppose the adoption of the amendment.
The amendment introduces new offences categorised as terrorist acts and punishable by up to life imprisonment. These include the participation in an insurrectional movement and violence, theft committed against persons and destruction, or damage committed during gatherings.
ARTICLE 19 understands that the amendment was motivated by fragile security concerns at the sub-regional level, including political, security and social instability in neighbouring countries, especially in Mali, with the rise of jihadism and groups affiliated with Islamic State. While we acknowledge that States have a duty to protect their population from terrorist threats, particularly within the security context of the West African sub-region, we are concerned about the impact of the amendment on the legitimate exercise of the right to freedom of expression. Several provisions of the amendment go beyond permissible restrictions to freedom of expression under international freedom of expression standards. We are also concerned that, in adopting the amendments, the Senegalese authorities have failed to consult with a diverse spectrum of social actors about the amendments’ scope and the extent of the necessary restrictions.
ARTICLE 19’s concerns about the amendment
While States have a duty to protect their population from terrorist threats and acts and freedom of expression may be restricted to protect public order and national security, limitations imposed on individuals’ human rights must comply with a three-part test under international human rights standards. They must be provided by law with a sufficient level of detail for individuals to understand what acts constitute a contravention of the law and be necessary and proportionate to the aim to be achieved.
Nevertheless, we note that Article 279-1 contains a vague and broad definition of what constitutes terrorist acts. This failure to properly narrow down the scope of what constitutes terrorist acts leaves the door open to the risk that legitimate exercise of the right to freedom of expression and the right to protest could be criminalised. What is more, the vagueness is likely to vitiate the interpretation and application of all provisions under 279, or therein referred, that refer to acts of terrorism.
ARTICLE 19 has already flagged such risks in the past with regards to Article 80 of the Penal code, which unduly restricts the right to freedom of expression and has been used against journalists and human rights defenders, and called for its repeal. This provision contains vague terms regarding acts that could be considered to be acts of terrorism, thus threatening people’s freedoms. Against this background, the current version of Article 279-1(1), which makes explicit reference to, among others, Article 80, constitutes a concrete risk of criminalising people’s right to freedom of expression and right to protest.
In addition, Article 279-1(2) leaves a wide margin for enforcers to qualify participation in an insurrection movement as terrorism, while Article 279-1(3) provides that the destruction of property, violence or assault committed against people during gatherings also constitutes a terrorist act. Both provisions risk criminalising, under unnecessary and disproportionate grounds, what may amount to illegal acts resulting from individuals participating in gatherings and protests, for example, when individuals or specific groups destroy private property during a protest. However, these types of conduct require an individualised assessment that determines the necessity to protect public and private property from harm in the context of protests, instead of being categorised as terrorist acts outright. These forms of disturbance and violence do not meet the national security threshold under which terrorist grounds may be justifiable. On the contrary, the current formulation of Articles 279-1(2) and 279-1(3) allows authorities to qualify both the gathering and the conduct as terrorist acts, which can be punishable by life sentences.
Other parts of the amendment raise additional concerns because of their vague and overbroad formulation. Articles 279-1(15) and (16), among others, qualify technology-related ‘offences’ and ‘attacks’ against national defence as terrorist acts. They fail to define, on the one hand, the severity threshold that the technology-related offences should meet in order to be categorised as a terrorist act, and, on the other hand, what level of interference with national security is relevant to be applied as the norm. These provisions pose serious risks of being misinterpreted or abused and used against the exercise of freedom of expression online.
Furthermore, Article 279-2 criminalises the apology for terrorism as defined in Article 279. This provision fails to meet the incitement threshold under international human rights law that requires, inter alia, that the expression is intended to incite imminent violence, is likely to incite such violence and that there is a direct and immediate connection between the expression and the likelihood of occurrence of such violence.
In addition, Article 279-5 clearly states that any person who provides support to a group “to commit a terrorist act” will be sentenced to life imprisonment. Unfortunately, it does not define what type of support is required for the provision to apply, creating legal uncertainty.
Under Article 45-1, legal persons other than the State and its components are criminally liable for offences committed on their behalf by their bodies or representatives, with penalties applicable including confiscation of property; permanent ban or a ban for a maximum of five (5) years from professional or social activities; as well as a fine at a maximum rate equal to five times that provided for physical persons by the law that punishes the offence, among others. Article 279-5 and Article 45-1 read in conjunction could result in organisations or foundations providing support, including financial support, to civic groups, having this support qualified as supporting a group alleged to have committed a terrorist act, even where they have no intention of supporting a terrorist act or group.
It is finally noted that the amendment provides for a life sentence as the sanction to be imposed in all cases listed under Article 279, apart from 279-2 to 279-8. However, the types of conduct that are punishable under the amendment are various, and certainly present different degrees of harmfulness and causal nexus with the terrorist act. To apply the same sanction to all, rather than to perform an individualised assessment, appears inherently disproportionate, especially considering that the one-stop-shop solution identified by the legislator is the most severe possible, which should on the contrary be reserved only for the most serious and harmful conducts.
Misuse of the terrorism provisions in Senegal against dissent and human rights standards
The African Commission on Human and Peoples’ Rights, in the Resolution on the Protection of Human Rights and the Rule of Law in the Fight against Terrorism, called on States to strengthen their cooperative action to prevent and combat terrorism. However, it reaffirmed that measures taken in this context must respect the provisions of the African Charter on Human and Peoples’ Rights and other international human rights treaties, including the right to life, the prohibition of arbitrary arrest and detention, the right to a fair trial, the prohibition of torture and other cruel, inhuman and degrading treatment and punishment and the right to seek asylum. This is reiterated in The Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, which state that: “States shall not use counter-terrorism as a pretext to restrict fundamental freedoms, including freedom of religion and conscience, expression, association, assembly and movement, and the right to privacy and property.”
A report by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism calls for added attention to the rights to freedom of association and peaceful assembly in the context of ensuring that counter-terrorism measures conform to human rights standards. The Special Rapporteur has further stated, “States should not need to resort to derogation measures in the area of freedom of assembly and association. Instead, limitation measures, as provided for in the International Covenant on Civil and Political Rights, are sufficient in an effective fight against terrorism.”
In consideration of human rights standards, Bulakali Alfred Nkuru, the Deputy Regional Director of ARTICLE 19 West Africa, expressed concern and stated:
“ARTICLE 19, as an organisation defending free speech, is very concerned about the possible misuse of the amended provisions of the Penal Code against critical voices in the society and the impact this could have on the civic space and freedom of expression and right to protest in Senegal. In some cases, we have seen restrictions on the right to protest ostensibly justified by the need to maintain public order. This has included activists taken into custody for allegations of taking part in an insurgency movement or disturbances to public order for the expression of their opinions through new technologies or protesting in public spaces. We remind the Senegalese authorities that the fight against terrorism must respect freedoms guaranteed by the national constitution and comply with international human rights standards. Some provisions of the amended Penal Code, however, are a real threat to freedom of expression and will discourage citizens from exercising their rights to assembly and to free speech due to fear of possible legal repression. The authorities must amend these provisions before the law is applied”.
Recommendations
In view of the above concerns, ARTICLE 19 calls on the Senegalese authorities to refrain from using the fight against terrorism to suppress human rights and freedoms, and in particular calls for them to:
- Tighten the definition of “terrorist act” in Article 279-1 to avoid capturing expression and types of conduct that do not pose an immediate threat to national security, but are rather fundamental components of individuals’ right to freedom expression and right to protest;
- Repeal provisions criminalising apology and incitement to terrorism, to include definitions of “intent” and “likelihood” of the action without merely targeting its expression. In particular, provisions need to explicitly require that the expression is intended to incite imminent violence, it is likely to incite such violence and that there is a direct and immediate connection between the expression and the likelihood of occurrence of such violence;
- Repeal the life sentence standard sanction for the variety of conduct under 279 with sanctions respectively proportioned to the level of severity and harmfulness of each of the relevant types of conduct;
- Repeal Article 80 of the Penal Code, which contains overly broad provisions criminalising ‘acts that compromise public security or cause serious political troubles’;
- Instead of moving forward with the law, the Government should organise a large consultation with interested stakeholders to come up with a law that will adequately respond to the need to fight terrorism, which is a legitimate mandate of the Government, and to the need to protect human rights and freedoms.
For more information please contact:
Aissatou Diallo Dieng, Executive Assistant, ARTICLE 19 Senegal/West Africa at E: [email protected] T: +221 33 869 03 22 or
Eliane NYOBE, Senior Program Assistant, ARTICLE 19 Senegal/West Africa: [email protected] Tel: +221 77 553 13 87 or +221 33 869 03 22
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