New law on the protection of national symbols: a threat to freedom of expression on social networks in Mauritania

On December 2, 2021, seven human rights organisations issued a joint letter the undersigned Mauritanian, regional and international civil society organisations, express our deep concern about the adoption, by the Mauritanian parliament, of the Law on the protection of national symbols and criminalisation of offenses against the authority of the state and the honour of the citizen on November 9, 2021. We fear that the entry into force of this law will negatively impact the exercise of freedom of expression in Mauritania.

Context

This bill “on the protection of national symbols and criminalisation of attacks on the authority of the state and the honour of the citizen,” was introduced in July 2021 by the executive, in order to combat “anything that is likely to undermine national unity, respect for national sovereignty and the authority of the state and limit the inappropriate use of social communication platforms.”

The bill was passed by the National Assembly on November 9, 2021. The debates within the National Assembly were marked by a boycott of the bill by opposition members, who felt that the chairman of the Justice and Defense Committee had not taken their proposed amendments into consideration. The Mauritanian Journalists' Union (SJM) also called on the government to rework the bill by consulting all stakeholders, including journalists.

Although the explanatory memorandum within the bill refers to the main human rights instruments to which Mauritania is a party, including the International Covenant on Civil and Political Rights (ICCPR), the text contains several provisions that are contrary to international standards governing online freedom of expression.

On the attack on the authority of the state and its symbols

Article 2 of the law provides for two to four years’ imprisonment for anyone who “undermines the authority of the state and its symbols,” i.e, through the deliberate use of “information technology, digital communication and social communication platforms to undermine the constant values and sacred principles of Islam, national unity, territorial integrity, or to insult the person of the President of the Republic, the flag and the national anthem.”

The terms used –  including “constant values” and “sacred principles of Islam” –  are vague and imprecise. This provision complements existing provisions such as Article 21 of Law No. 2016-007 on Cybercrime and the controversial Article 306 of the Penal Code, which was recently amended to institute the mandatory death penalty for "blasphemous speech" and "sacrilege," with no possibility of repentance or appeal. These two provisions already contribute to restricting the activities of journalists and human rights defenders, and are more broadly incompatible with article 19 of the ICCPR.

Regarding contempt for the person of the President of the Republic, the flag and the national anthem, the UN Human Rights Committee expressed concern about “laws governing such matters as [...] offence to the flag and symbols, defamation of the head of state, and protection of the honour of public officials and public figures. The "insult to the person of the president” is similar to the laws against the crime of lèse-majesté. It is necessary to recall that public figures, including those who hold positions at the highest level of political power, are legitimately exposed to criticism and political opposition.

Similarly, the Human Rights Committee stated in its General Comment 34 that “the mere fact that forms of expression are considered insulting to a public figure is not sufficient to justify a criminal conviction.” Hence, Article 2 is in essence contrary to international standards of freedom of expression.

The offence of harming the morale of the armed and security forces

Article 3 makes any publication that “undermines [the morale] of the armed and security forces or destabilises their loyalty to the Republic” an offense punishable by one to three years in prison.

The law does not specify how the link between the publication of content and the deterioration of the morale of the armed and security forces or their loyalty can be established, nor does it specify how changes in morale are to be assessed. According to the wording of Article 3, it cannot be excluded that a journalistic report on social networks criticising a disproportionate use of force, for example, would fall within the scope of the law if it is deemed to “harm the morale” of the security forces.

We agree with the Human Rights Committee that states should not prohibit criticism of institutions such as the military or the administration and that imprisonment is never an appropriate punishment for this.

On the other hand, the law should be drafted in a clear manner so that individuals can foresee the consequences of their actions. The Committee stated that “the law cannot confer on those responsible for its application an unlimited power to decide on the restriction of freedom of expression.” However, the terms used in Article 3 give the executive and judicial branches broad discretionary power that could lead to arbitrary custodial sentences on activists, human rights defenders, opponents, and any individual who expresses views contrary to those espoused by the political or military power.

Hate speech not in line with international law

The fourth article considers “an attack on civil peace and social cohesion” any content “containing slander, insults or slurs against a region, the country or a component of the people, which advocates hatred between these components or incites them against each other.” Penalties range from two to five years in prison, 10 years for repeat offenses.

We are concerned by the lack of distinction between insult, slander, and libel on  one hand, and the promotion of hatred and incitement on the other. The combination of these terms in one article may have a chilling effect on the freedom of expression of journalists or other individuals, such as human rights defenders.

It is feared that the authorities will interpret these principles broadly, considering that any critical or discursive writing, such as that questioning national institutions, could be considered an insult. The term “component” mentioned in Article 4 is not defined in the law. It is therefore not clear whether it refers to ethnic, religious, socio-professional, gender or status components.

In its decision in Federation of African Journalists and Others v The Gambia, the Economic Community of West African States (ECOWAS) Court ruled that criminal defamation and libel laws should be repealed on the grounds that they disproportionately interfere with the rights of journalists.

Ethnicity and discrimination are politically sensitive issues in Mauritania. Current legislation includes several very broad provisions that have been used in the past to crack down on Internet users who denounce the marginalisation of certain communities.

In December 2014, a Mauritanian court sentenced a popular blogger Mohamed Cheikh Ould Mkhaïtir to death for apostasy over an article in which he criticised caste discrimination. Although an appeals court reduced his sentence to two years in prison, making him immediately releasable, he was subjected to arbitrary detention in an undisclosed location for more than 20 months before being exfiltrated to France, where he applied for refugee status.

In January 2018, activist Abdallahi Salem Ould Yali was arrested and prosecuted for inciting violence and racial hatred for his social media posts that criticised the country's racial discrimination before being released on February 1, 2019.

We, the undersigned Mauritanian, regional and international civil society organisations, express our deep concern about the adoption, by the Mauritanian parliament, of the Law on the protection of national symbols and criminalisation of offenses against the authority of the state and the honour of the citizen on November 9, 2021. We fear that the entry into force of this law will negatively impact the exercise of freedom of expression in Mauritania.

As the Rabat Plan of Action on the prohibition of any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence reiterated, the more broadly incitement to hatred is defined, as it is in this case, the more it opens the door to arbitrary enforcement of the law. Indeed, Article 4 does not distinguish between the different categories of hate speech as mentioned in the Rabat Plan. We are concerned that the use of vague terms may be used to punish views that differ from those of the majority or the government.

Right to privacy and freedom of expression

The law introduces in Article 5 the offense of “deliberate invasion of privacy”, which includes any sound or photographic recording made, deliberately, without the knowledge of the individuals concerned, as well as its publication and dissemination with a view to prejudicing those individuals or their honor.

The second paragraph of the article specifically prohibits the disclosure of personal secrets concerning public officials in the context of their private lives. Penalties range from one to two years in prison.

Regrettably, this provision makes no reference to any balancing of privacy and freedom of expression, particularly in the case of public officials, taking into account factors such as the contribution to a debate of public interest, the reputation of the individual, or how the information was obtained and its veracity.

Mauritanian journalists should be able to publish personal information in the context of a public interest debate, such as a public official’s abuse of public office for personal gain or the misuse of public funds, without fear of prosecution. With respect to the second paragraph, we believe that the right of public figures to have their privacy protected should be more limited.

Conclusion

While we are aware of the need to regulate the moderation of content on social networks, we question the added value of a specific law regulating social media. Indeed, the law on the protection of national symbols is the latest in a series of laws that place excessive limits on the content of speech both online and offline.

We therefore call upon the Mauritanian government to repeal the law. The executive should consult civil society organizations and professionals with the view of developing a legislative framework for the use of social networks that respects international standards.

Generally, we recommend avoiding a purely repressive approach and adopting positive measures that could guarantee the appropriation of democratic values by society, such as the development of media and information literacy, cooperation with social networks to bring more transparency and, finally, the promotion of fact-checking.

List of signatories

Access Now, ARTICLE 19, Association des Femmes Cheffes de Famille (AFCF), Forum des Organisations Nationales de Droits Humains (FONADH), MENA Rights Group, ODISSI, SMEX.