Prominent rights advocate Jamal el-Haji arrested
The detention stems from a five-page complaint that el-Haji, writer and rights advocate, sent to the Justice Secretary on May 24 about violations of his basic rights while he was in custody from 2007 to 2009, including torture and inhumane conditions, and a travel ban on international travel since his release. He also criticized Libya's lack of judicial independence, the interference of the security services in the judiciary, and the arbitrary detention of hundreds of persons.
"Jamal el-Haji is in jail for speaking out about human rights abuses in Libya," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "His arrest not only violates his rights, but it will also deter others from sending complaints of abuses to the judiciary."
El-Haji is one of the bravest Libyans willing to risk publicly criticizing the government. He writes regularly online about sensitive human rights issues such as the Libyan government's responsibility in the death in May of a prominent political prisoner, Fathi el-Jahmi. On September 1, el-Haji told BBC World television: "It is disaster for Libya to have this regime for 40 years. There is no freedom here; there is no democracy. The UK, France, Italy, I don't know why they support this dictatorship. But we will never forget."
On November 5, the prosecutor summoned el-Haji to respond to a criminal defamation complaint filed against him on June 4 by the Justice Secretary. On December 8 the prosecutor ordered el-Haji's detention in Jdaida prison in Tripoli pending trial. His family has not been able to visit him since his arrest.
On December 9, the office of General Prosecutor Abdurahman Elabbar released a memorandum stating that it had "investigated the allegations in (el-Haji's) complaint and proved that they were untrue and therefore slanderous, which is punishable by law under article 195 of the penal code."
El-Haji's arrest for "insulting officials" violates his right to freedom of expression under international human rights law, Human Rights Watch said.
Elabbar told Human Rights Watch on December 12 that his office had investigated el-Haji's claims by visiting Ain Zara Prison, where el-Haji had been held, and obtaining his medical files from the Internal Security Agency, in which there was "no evidence of ill-treatment." Elabbar said that since el-Haji had no evidence to prove his allegations, his complaint amounted to insulting public officials.
"A government that is serious about reform encourages citizens to alert them to possible human rights violations," Whitson said. "The authorities can close an investigation if it finds no evidence of wrongdoing after a serious inquiry, but to punish those who make allegations is to deny the victims of abuse the right to a remedy."
Many of the general allegations made in el-Haji's letter were raised in the annual report of the quasi-governmental Gaddafi Foundation, run by Libyan leader Mu'ammar al-Gaddafi's son, Saif al-Islam al-Gaddafi, issued on December 10. The Foundation's report criticized and called for abolishing the State Security Court, and said that the Foundation had "documented a number of flagrant violations of the law in 2009, of torture and inhumane treatment cases and arbitrary detention" and that "it appeared that this phenomenon, which had appeared to have ended, now continues to increase because of the immunities enjoyed by security agents."
The report also criticized the executive branch's failure to implement court orders, saying that the failure to respect the rule of law calls into question the "legitimacy of a government that is unable to implement court decisions."
El-Haji spent two years in prison as a political prisoner, convicted of "attempting to overthrow the political system" and "communication with enemy powers," for planning a demonstration in February 2007. The demonstration was to mark the anniversary of a violent clash in 2006 between demonstrators and police in Benghazi, Libya's second-largest city, in which at least 11 people died. The State Security Court sentenced el-Haji, who holds both Libyan and Danish citizenship, to 12 years of imprisonment for "attempting to overthrow the political system" and "communication with enemy powers." Prison authorities placed el-Haji in solitary confinement in November 2008 after he refused to end a hunger strike to protest his detention.
The Human Rights Watch report, "Truth and Justice Can't Wait," released at a December 12 news conference in Tripoli, found that Libyans had become more outspoken about the government, but that they continued to risk arbitrary arrest because of laws that criminalize critical speech. The 2009 proposed draft penal code reduces some of the harshest sentences but maintains provisions that violate freedom of expression. The Secretary for Justice, Mostafa Abdeljalil, told Human Rights Watch that the revised draft would be presented to the Basic People's Congresses, the first step in the legislative process, in late December.
Article 198 of the new draft penal code states that offending a public official shall be punishable by imprisonment. Article 155 provides prison terms for insulting Leader Mu'ammar al-Gaddafi and article 167 provides for life imprisonment for promoting "anti-state theories and concepts" that aim to change, through the use of illegal means, the Jamahiriya system, Libya's system of government. The restrictions on freedom of expression found in articles 155, 156, 159, 167, 198, and 230 go beyond what is permitted under the International Covenant on Civil and Political Rights, which Libya ratified in 1970, and create an atmosphere that stifles free speech and criticism.
"Jamal el-Haji's case is a classic example of why the penal code needs to be reformed," Whitson said.
The right to criticize one's government has particularly high priority in international law because its exercise is highly likely to be met with harassment, abuse, and denial by many governments. The Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples' Rights in 2002, says states shall ensure their laws on defamation comply with the standard that "public figures shall be required to tolerate a greater degree of criticism [than the average citizen]."
El-Haji was well aware of the risks he was taking when he gave an interview to the BBC in September.
"Yes it is dangerous, I am not safe," he said. "I am not afraid. There is nothing else to lose."
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