From September 2019 to May 2021, the American Bar Association (ABA) Center for Human Rights (Center) monitored the criminal trial of journalist Paul Chouta in Cameroon as part of the Clooney Foundation for Justice’s TrialWatch initiative. The prosecution and conviction of Chouta for defamation, publication of insulting language, and false reporting as a cyber offense constituted a severe violation of his right to freedom of expression. Additionally, the proceedings were marred by fair trial violations: in particular, violation of the right to be tried without undue delay, especially given that Chouta remained in detention for almost two years throughout the proceedings due to a lack of care and professionalism exhibited by the authorities. The Yaounde Court of Appeal, which is considering Chouta’s appeal, should overturn his conviction.
In June 2020, after the trial had been ongoing for over a year, the Center released a preliminary TrialWatch report raising concerns about potential violations of Chouta’s right to be free from arbitrary detention, right to trial without undue delay, and right to freedom of expression. Prior to issuing final reports on cases, TrialWatch routinely issues preliminary reports in response to noteworthy developments. The present report on Chouta’s case, which is based on the complete set of monitors’ notes, replaces the preliminary report. To the extent that anything in this final report elaborates on or refines the preliminary report’s conclusions, this report is dispositive. In November 2020, based on the Center’s monitoring of the proceedings, the Clooney Foundation for Justice and Debevoise & Plimpton LLP took Chouta’s case to the UN Working Group on Arbitrary Detention. The case remains pending before the Working Group.
Chouta is a prominent government critic and has written about, among other things, institutional corruption and abuses perpetrated by the police. He also served as administrator of the popular Facebook page Le TGV de l’info (TGV), an independent news and information platform that covers current events and has previously been critical of Cameroonian President Paul Biya’s government.
In the present case, Chouta was accused of posting a video and letter on TGV’s Facebook page about the personal life of Calixthe Beyala, a well-known French- Cameroonian author who has spoken out against opposition movements in Cameroon. Beyala filed a criminal complaint against Chouta alleging that he defamed her through these postings. Notably, the video had been widely shared on the Internet prior to any alleged publication by Chouta.
Chouta was arrested on May 28, 2019. He was detained in Cameroon’s notorious Kondengui prison from the time of his arrest to the conclusion of his trial before the Yaounde Court of First Instance nearly two years later, on May 18, 2021. Chouta was convicted, fined, and sentenced to time served (23 months). On May 20, Chouta was released.
The pretrial stage of the proceedings against Chouta was plagued by significant due process abuses, including violations of Chouta’s right to be informed of the reasons for arrest and right to judicial review of detention. Notably, a prosecutor – not a judge – issued a remand warrant that resulted in Chouta being detained for more than a year prior to any court assessing the legitimacy of his detention.
Further, Chouta’s pretrial detention for almost two years was arbitrary. As a baseline matter, Chouta’s detention pending trial was arbitrary because imprisonment is not an appropriate response to any but the gravest speech offenses. Where imprisonment is not an appropriate penalty for an offense, pretrial detention pursuant to such an offense is arbitrary. Even setting this aside, throughout Chouta’s time in prison the authorities either did not provide any justification for imposing detention or provided inadequately supported justification – that Chouta generally posed a flight risk despite no concrete evidence suggesting as much. The lack of any demonstrated need to keep Chouta in prison constituted an additional violation of his right to be free from arbitrary detention.
Meanwhile, the trial itself was marked by fair trial violations.
First, the trial was repeatedly and unjustifiably delayed despite the State’s heightened responsibility to expedite the proceedings because Chouta was in detention. These delays were generally frivolous: for example, on various occasions the trial was adjourned because of the prosecution’s failure to summon relevant parties to court; because Beyala or her lawyer failed to appear in court; because the judge was unable to locate the record of the proceedings; and because the judge forgot to return the case file to the registrar to schedule the hearing. On four separate occasions, the court failed to ensure that Chouta was brought to court. These delays were numerous and long, with the court adjourning for three to six weeks at a time in most instances. The result was a trial that lasted almost two years notwithstanding the fact that there were only six substantive hearings.
Second, the prosecution’s actions violated Chouta’s right to adequately prepare his defense. Near the end of the trial, more than a year and a half after the commencement of proceedings, the prosecution introduced wholly new allegations that entailed a new complainant and new set of charges. The prosecution did not present evidence on these new charges, as it had already closed its case, leaving Chouta in the dark as to the basis of the alleged offenses. This surprise tactic not only prevented Chouta from mounting an effective defense but violated prosecutorial ethics.
Third, the evidence put forth by the prosecution, as evaluated by a review of the prosecution’s presentation at trial, failed to prove that Chouta had authored the letter in question (Chouta admitted to reposting the video – more on this below). At no point did the prosecution attempt to explain the serious inconsistencies in the evidence, such as why the letter was signed by a different author or how screenshots that purportedly came from a Facebook page looked more like WhatsApp messages according to witness testimony. Although at the close of trial there were many uncertainties, which should have been resolved in Chouta’s favor, the court convicted Chouta for authoring the letter. This violated the presumption of innocence.
Fourth, the court’s conduct evinced bias, as it appeared to improperly promote the interests of the prosecution over the interests of the defense. Among other things, the court unjustifiably denied defense requests for bail, allowed the prosecution to make its evidentiary presentation despite the absence of Chouta’s lawyer at the hearing in question and Chouta’s request that the court not proceed without counsel present, allowed the prosecution to introduce the aforementioned new charges and new complainant, and dissuaded the defense from raising objections against questions posed by the prosecution during cross-examination. Further, in convicting Chouta, the court – as mentioned above – failed to address the gaps and inconsistencies revealed in evidence and witness testimony.
In addition to Chouta’s right to a fair trial, his detention, prosecution, and conviction violated the right to freedom of expression enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (African Charter). In accordance with those treaties, restrictions on the right to freedom of expression must: i) be prescribed by law; ii) serve a legitimate objective; and iii) be necessary to achieve and proportionate to that objective. Under the principle of necessity and proportionality, only the gravest speech offenses warrant criminal prosecution and penalties: namely, incitement to genocide, incitement to terrorism, advocacy of hatred, and child pornography.
Neither the video nor the letter (which, as mentioned above, there are serious doubts that Chouta authored) rise to the prescribed level of severity. As such, Chouta’s two years of detention, conviction, and sentencing to time served violated his right to freedom of expression.
More broadly, Chouta’s treatment is precisely the sort of disproportionate response that the UN Human Rights Committee, which monitors implementation of the ICCPR, and the African Court and African Commission, which monitor implementation of the African Charter, have consistently found to have a chilling effect on free speech, in contravention of freedom of expression standards. First, Chouta was found guilty for simply reposting a video that was already circulating on the internet. He admitted that he had reposted the video and the prosecution did not present any evidence that Chouta had anything to do with the making or original publishing of the video, other than being one of many who shared it on social media. The criminalization of the mere sharing of content provides the authorities with near unbounded charging discretion.
Indeed, that the authorities did not prosecute others who reshared the video indicates that Chouta may have been targeted for selective prosecution on the basis of his previous criticism of the government.
Second, the prosecution argued that Chouta should be found guilty even if he had not authored the letter about Beyala but had omitted to report other journalists’ posting of the letter to the authorities. In this regard, the prosecution noted that Chouta “will serve as a lesson to those who use the internet to hurt the image of others.”1 Criminal prosecutions, however, should not be used to intimidate others into self-censoring and refraining from the exercise of their right to free speech. Punishing journalists for not monitoring their colleagues’ work is sure to have this effect, creating a culture of fear in the profession.
Thrid, Chouta’s prosecution was facilitated by the expansiveness of the Criminal Code’s defamation and insulting language provisions and the Cybersecurity and Cybercriminality Law’s false reporting provision, which provide for imprisonment for the publication of speech that is not alleged to incite violence or advocate for hatred (the provisions respectively proscribe speech that is injurious, insulting, and untrue), falling short of the level of gravity required to impose criminal penalties for speech offenses.
The chilling effect of such laws and the potential of years in prison – either in detention or following conviction – cannot be overstated. In accordance with international and regional standards, Cameroon must revise or repeal these provisions.