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Today marks Paul Chouta’s 388th day in pretrial detention on speech-related charges. The American Bar Association’s Center for Human Rights has been monitoring the proceedings against Mr. Chouta as part of the Clooney Foundation for Justice’s TrialWatch initiative. To date, the court has failed to provide an adequate rationale for his ongoing detention or to hold a substantive hearing on the charges against him, in contravention of Mr. Chouta’s right to freedom from arbitrary detention and right to trial without undue delay. Mr. Chouta’s detention also violates his right to freedom of expression. These abuses are all the more egregious given the confirmed presence of the COVID-19 virus in Cameroon’s prisons.
Mr. Chouta is a Cameroonian journalist who works for the independent online outlet Cameroon Web and manages the popular Facebook Page Le TGV de l’info. He is a prominent government critic and has written about, among other things, corruption and abuses perpetrated by the police. As a result of his reporting, Mr. Chouta has received anonymous threats (causing him to move residence during the October 2018 elections). In January 2019, he was beaten and stabbed outside his home by unknown assailants.
On May 28, 2019, police officers arrested and detained Mr. Chouta on the basis of a complaint filed by French-Cameroonian author Calixthe Beyala. Specifically, Ms. Beyala alleged that Mr. Chouta had posted inaccurate and offensive information about her personal life on social media. On May 31, Mr. Chouta was denied bail and on June 10, charged with defamation, the publication of insulting language, and false reporting as a cyber offense. The defamation charge carries up to six months in prison; the insulting language charge carries up to three months in prison; and the false reporting charge carries up to two years in prison.
Following his arraignment, Mr. Chouta was transferred to Kongdengui maximum security prison in Yaounde to await trial. The proceedings have yet to begin due to the myriad delays described below. Ms. Beyala is serving as a civil complainant in the trial, in accordance with Section 157 of Cameroon’s Code of Criminal Procedure.
This preliminary report focuses on pretrial violations to date and does not examine or take a position on the merits of the charges against Mr. Chouta.
Criminal Prosecution of Speech Offenses
The International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (African Charter) guarantee the right to freedom of expression, subject only to limitations that are lawful, necessary, and proportionate to achieve a legitimate aim. Regarding the proportionality requirement, the UN Human Rights Committee has concluded that “imprisonment is never an appropriate penalty” for defamation. Similarly, the African Court has held that “violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences.” The UN Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression has further noted that only speech that constitutes child pornography, incitement to terrorism, public incitement to genocide, and advocacy for national, racial, or religious hatred should ever be criminalized. According to the Special Rapporteur, “all other types of expression … should not be criminalized” given the “significant chilling effect” that occurs.
In the present case, Mr. Chouta has been charged with defamation, publication of insulting language, and false reporting on the basis of posts made on various websites. Without examining whether the purported posts were false or defamatory, it is not alleged within the pleadings that they amounted to incitement to violence or another offense of sufficient gravity to warrant a custodial sentence. Mr. Chouta’s ongoing detention therefore impermissibly restricts his right to freedom of expression.
Mr. Chouta’s treatment is precisely the sort of disproportionate response that the HRC and African Court have consistently found in violation of the individual right to freedom of expression while undermining and chilling the right in society at large. Finally, to the extent the charges have been brought by a private person, Ms. Beyala, the HRC has highlighted States’ obligation to ensure that individuals “are protected from any acts of private persons or entities that would impair the enjoyment of the freedoms of opinion and expression.”
Under Article 9(1) of the ICCPR, “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.” Article 6 of the African Charter contains parallel guarantees. The HRC has noted that the concept of “arbitrariness” must be “interpreted broadly, to include elements of inappropriateness, injustice, lack of predictability and due process of law as well as elements of reasonableness, necessity and proportionality.” Not only should pretrial detention be the exception and as short as possible, but detention must be “lawful” (in accordance with domestic law) and “reasonable and necessary in all circumstances.” This means that pretrial detention is appropriate for only a limited number of purposes: to prevent flight, interference with evidence, and the recurrence of serious crime.
In evaluating the reasonableness and necessity of pretrial detention, courts must undertake an “individualized determination.” Vague pronouncements fail to meet this standard and reference to the severity of the charges is insufficient. Courts must additionally provide reasons for forgoing possible alternatives, such as bail and monitoring devices.
According to counsel, the authorities have yet to demonstrate through an individualized assessment of Mr. Chouta’s circumstances that there is a risk of flight, risk of interference with the evidence, or risk of recurrence of crime. There is likewise no indication that the authorities have considered non-custodial alternatives. As such, Mr. Chouta’s ongoing detention is neither reasonable nor necessary and is thereby arbitrary.
Mr. Chouta’s detention also contravenes the requirement of proportionality. As of today, he has been incarcerated for almost 13 months, more than a third of the time he would serve if convicted of all charges. There is no end in sight. The disproportionate length of Mr. Chouta’s incarceration renders it arbitrary.
Mr. Chouta’s extended incarceration raises further concerns about respect for the presumption of innocence, protected by the ICCPR and African Charter. Pretrial detention can violate the presumption when it is unreasonably prolonged. In the words of the African Commission in the case of Haregewoin Gabre-Selassie and IHRDA v. Ethiopia, “long preventive custody [can] los[e] its purpose as an instrument to serve the interests of sound administration of justice … violat[ing] th[e] right to be presumed innocent in that it [is] meant as a sanction.”
The ICCPR and African Charter entitle individuals charged with criminal offenses to be tried without undue delay. The calculus as to what constitutes a “reasonable time” between arrest and the conclusion of proceedings entails consideration of factors such as the “complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.” States carry a heightened burden to expedite proceedings in cases where defendants are detained.
Additionally, as noted by the Human Rights Committee, “[i]t is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.”
As of the date of the present report, Mr. Chouta has been detained for more than a year without any substantive hearing on his case. This lag can partially be attributed to the Yaounde trial court’s permissiveness towards the dilatory conduct of Ms. Beyala and her lawyer. On June 11, 2019, for example, the court adjourned the proceedings for a month because neither Ms. Beyala or her counsel were present; on July 9, 2019, the court again adjourned the proceedings for a month because Ms. Beyala failed to appear in court; and on August 13, 2019, the court adjourned the proceedings for a month because of the purported illness of Ms. Beyala’s lawyer.
September 10, 2019 was the fourth time that Mr. Chouta appeared in court ready to proceed on the merits. He was informed that Ms. Beyala’s lawyer had applied for joinder of Mr. Chouta’s case with a second case filed against another individual alleged to have made false claims about Ms. Beyala. The state prosecutor supported the joinder. This application, however, could have been raised in the months following Mr. Chouta’s arrest. Instead, the belated request led to even more delay.
Ruling in favor of the joinder, the judge adjourned the case until October 8, 2019, another month behind bars for Mr. Chouta. At the hearing on October 8, 2019, the judge stated that the court could not proceed with the case because of an interlocutory appeal filed by the joined defendant. This appeal hearing was scheduled for March 9, 2020, meaning that Mr. Chouta was left to languish in prison for another six months. Subsequently, the March 9 proceedings were postponed for a month after Ms. Beyala’s lawyer requested additional time to secure her presence. Arguments were heard on April 13, and the ruling delivered on April 27. The court dismissed the appeal and ordered the resumption of the criminal trial. On June 10, 2020, proceedings reopened at the trial court. The authorities, however, were delayed in transporting Mr. Chouta to the hearing, and his co-accused were absent, having not been properly summoned. As a result, the trial was adjourned to June 24, 2020.
With respect to the factors deemed relevant by the Human Rights Committee and the African Commission and Court, Mr. Chouta is detained and the delays stem not from his conduct but that of the authorities. As such, while it is encouraging that the proceedings have resumed following resolution of the interlocutory appeal, their meandering nature thus far violates Mr. Chouta’s right to trial without undue delay.
The imperative to release Mr. Chouta and end his arbitrary detention is heightened due to the current COVID pandemic. Prisons in Cameroon are notoriously overcrowded. As of March 2020, the Kondengui prison in Yaounde, where Mr. Chouta is detained, was operating at 5 times capacity, making it impossible to enforce the social distancing measures required to stem the spread of the virus. Notably, there have already been reports of potential COVID-related deaths at the prison.
On April 15, 2020, President Biya ordered the release of certain prisoners to reduce overcrowding. This decree, however, excluded individuals in pretrial detention. Given that there are no lawful grounds for Mr. Chouta’s detention and prosecution, the ICCPR and African Charter mandate his release. As Cameroon acts to mitigate the impact of COVID-19 and decongest prisons, the liberation of Mr. Chouta should be at the forefront of such efforts.
As part of the TrialWatch initiative, the Center will release a full Fairness Report upon the conclusion of Mr. Chouta’s case..