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V. Analyzing the Press Law

Criminal responsibility for certain conduct

1. Definition of crimes

The press law defines two specific categories of conduct that may constitute crimes: “crimes of abuse of freedom of press” and “crimes of disobedience”. Some of this conduct is also defined as a crime under the Criminal Code, but in the press law it is either formulated differently or made specific to situations where the crime is committed by media companies or professionals. 

The definition of “crimes of abuse of freedom of press,” in particular, does not meet international human rights standards on freedom of expression. According to article 74 of the press law, “crimes of abuse of freedom of press” include:

• “[S]preading information inciting secession”.
• “[S]preading information that causes disruption of public order and tranquility, social panic or distrust in the financial and banking system”.
• “[F]raudulent promotion (promoção dolosa) of persecution and defamation campaigns, through the systematic and continued publication of partially or totally false information about facts, attitudes, and professional, administrative or commercial performance of any person.”²⁶

Human Rights Watch takes the position that, as a principle, the criminalization of defamation is unnecessary and disproportionate and, in itself, a violation of the right to freedom of expression. The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (UN Special Rapporteur) has also recommended that defamation suits should give rise to civil and not criminal responsibility.²⁷

Article 74 of the law also frames defamation in terms that are overly broad and liable to a politicized application.  The UN Special Rapporteur has defined defamation as “an intentional false communication that injures another person’s reputation, being the communication without the consent of the allegedly defamed person”.²⁸ The concepts of “persecution” and “partially false information” go beyond this ambit and are undefined. Other crimes of “abuse of freedom of expression” outlined above are also defined in terms that are susceptible to over-broad interpretation (“disruption of public order and tranquility”, “social panic”, or “distrust in the financial and banking system”).

In light of Angola’s past record in suppressing press freedom, such rights would be better protected through the adoption of regulations detailing the content of such categories. This would also help ensure that the application of these provisions of the press law will not be contrary to the basic legal principle that a crime must be defined in the most clear and specific terms so that citizens know exactly what conduct may constitute a crime and what penalties they may incur by adopting such conduct (principio da tipicidade da lei).    

2. Penalties

According to the new press law, “crimes of abuse of freedom of press” are punished by penalties set forth in the Criminal Code. Such penalties should be financial “if higher penalties are not applicable”.²⁹ The law, however, does not define “higher penalties” or refer to the conditions that may give rise to them. The usual legal interpretation of this term is that “higher penalties” may include prison sentences if and when so envisaged in the Criminal Code. Prison sentences for both defamation and “injúria” are envisaged in the Criminal Code.³⁰ Although “injúria” is not listed in the press law as a “crime of abuse of freedom of expression”, publications can be suspended if they publish information that gives rise to conviction for this crime (see below).³¹

“Crimes of disobedience” are punished by financial penalties only, but the definition of these penalties is deferred to subsequent regulation.

Any media that publishes a text or image giving rise to three convictions for defamation, injúria, “disobedience” or “abuse of freedom of press” over a period of three years will be suspended by judicial order for periods that range from a few weeks to one year.³² The director of a media company who is convicted for three crimes committed “through the press, radio or TV” is barred from directing any media company for 3 years.³³ The circulation of foreign publications containing text or images “susceptible to incrimination” can be suspended by a court, at the request of the public prosecutor’s office.³⁴ 

The UN Special Rapporteur has stated that “suspension of the right to express oneself through any particular form of media or to practice journalism or any other profession…should never be available as a sanction for the breach of defamation laws.”³⁵ By these terms, the Angolan law provisions above are excessive. This is particularly the case with the suspension of foreign publications, for which the press law does not require a conviction for defamation or other crime, but merely a request by the public prosecutor’s office to suspend a publication on the grounds that it contains information that potentially fits a crime in Angolan law. This means that a foreign publication could be suspended before it has the chance to defend itself against a criminal accusation and before a court reaches a final decision on the case. In practical terms, this may also be economically devastating to publications that cannot wait out the time it would take to challenge such a suspension in the courts. Additionally, suspension for a potential infraction is more far-reaching in effect than even prior censorship, which is strongly disfavored under international law, other than in exceptional cases.

In general, criminal lawsuits follow a procedure described by the Code of Criminal Procedure. Such procedure sets forth procedural steps and deadlines aimed at guaranteeing due process and impartiality. According to the new press law, suits for “crimes of abuse of the freedom of press” are considered urgent (no justification for designating these suits as urgent is provided in the law). As urgent cases, all procedural deadlines set forth in the Code of Criminal Procedure are reduced to half expediting the procedure and cutting to half the total length of the lawsuit. Judicial procedures in Angola are generally considered lengthy, so this provision could be considered a positive measure. However, judges adjudicating such cases must ensure that, in applying this rule, they do not curtail the right of the defendant to have minimum adequate time to prepare his or her defense.

Under the previous press law, there was a provision that prevented a journalist accused of defamation from using the truthfulness of the facts (“veracity of facts”) the journalist reported in his or her defense in cases involving the Angolan president and other heads of state.³⁶ This was an exception applicable only to the president that permitted journalists to be subject to criminal charges, including prison sentences, for anything the journalist said which the head of state did not like—even if proven to be true. This section was eliminated from the new press law bringing it in line with the general rule of the Code of Criminal Procedure on this issue, which states that the admissibility of the ‘veracity of facts’ will be decided by the judge in each specific case.

However, there are still several provisions in the Criminal Code that award higher protection against defamation and injuria to public officials than to private citizens. Article 114 provides that the penalties defined for defamation cases will apply to any act that offends the respect (“consideracao”) owed to “public authority”.³⁷ Article 181 also provides for a prison term of one year for anyone who offends, through words, threats or acts, a variety of public officials, including ministers or state counselors, members of parliament and commanders of a public force.³⁸  

These provisions are contrary to the well established principle under international law that the media should be afforded higher protection of the law when covering matters of public interest and that politicians and other public figures must tolerate a higher degree of scrutiny and potentially criticism. Both the European Court of Human Rights and the Inter-American Commission on Human Rights have affirmed these principles in their jurisprudence.³⁹

Limitations to the exercise of freedom of press

The Angolan press law states that the exercise of the freedom of the press can be limited by “principles, values and constitutional and other legal rules” that “protect and ensure the right to good name, image and word, and the preservation of intimacy of the private life of citizens.”⁴⁰ On their face, these limitations do not violate international standards, which allow restrictions to freedom of expression when they are necessary for the respect of the rights or reputation of others or for the protection of national security, public order and public health or morals. ⁴¹ However, the practical implementation of this provision, in particular the definition or interpretation of the “principles and values” that may legitimately limit freedom of expression, remains a concern in light of the fragile capacity of the judiciary.

Additionally, the law states that journalists cannot obtain information through “disloyal” means.⁴² Since there is no definition in the press law of what “disloyal” means or what acts might constitute “disloyalty” and bearing in mind that no strong tradition of rights protection exists within the Angolan judiciary, a general word such as “disloyal” is an invitation to abusive criminalization of press speech.

Licensing procedures for private TV and radio broadcasting

Private broadcasting plays a crucial role in ensuring the dissemination of diverse and independent views in democratic societies. It facilitates the media’s role of publicizing and checking government action. Private broadcasting also contributes to guaranteeing freedom of expression by ensuring diversity of views on public policies and political issues and by making any abuses in this area known to the general public.

The new press law sets forth the basic rules for licensing private TV and radio broadcasters. Licenses are awarded through public tender, which must be proposed by the Ministry for Media Communication and the Ministry for Post and Telecommunications and launched by the Council of Ministers. The results of the public tender are also approved by the Council of Ministers. Following this, a license title (alvara) is granted by the Ministry for Media Communication but only after the Ministry for Post and Telecommunications issues a positive advisory opinion (parecer). Broadcasting companies must have a different license title (alvara) for each wave frequency they broadcast in.⁴³

The Declaration on Freedom of Expression in Africa stipulates that an independent regulatory body issue broadcasting licenses and monitor the fulfillment of license conditions.⁴⁴ Although specific criteria and procedures for licensing TV and radio broadcasters are to be established by subsequent legislation (see the section on the need of implementing laws and regulations below), the basic rules established in the press law have created an overly bureaucratic process and excessive reliance on governmental bodies, rather than independent bodies.⁴⁵ The press law establishes an independent regulatory body—the National Council on Media Communication—but it does not set forth its functions or powers, including with regard to licensing procedures.

Currently, no private TV broadcasters are operating in Angola. There are a few private radio stations operating in the country although none cover the whole territory.  One of these stations—Radio Eclésia—has for a long time had the technical means to broadcast nationally but the government has failed to authorize such broadcasting. ⁴⁶ According to the press law, radio companies presently broadcasting have six months to “adjust to the law”,⁴⁷ but there are no provisions setting up the procedure for such adjustment.

The need for implementing laws and regulations

Several provisions of the press law are formulated in general terms and are left to be detailed through subsequent implementing laws and regulations.⁴⁸

According to article 87, “the present law should be regulated by the government within 90 days.” This regulation will detail many principles and procedures that, in the absence of a regulation, remain ineffective. At the time of publication of this paper the deadline had expired and no such regulation had been issued.⁴⁹

In addition, many articles establish new bodies, codes, statutes, and procedures that will be, according to the press law, further detailed by specific laws (lei propria or lei especial). No deadline is set for enacting these. The lack of such legislation renders several provisions of the press law inoperable.

Article 2 of the ICCPR states that a party to the Covenant should “adopt such laws or other measures as may be necessary to give effect to the rights recognized in the…Covenant.”  According to its international obligations, therefore, the government of Angola should enact implementing laws and regulations as a matter of urgency.

Since the new press law revokes previous legislation on the matter but does not establish transitional arrangements to be applied pending the adoption of its regulation and further specific legislation, a legal void was created in relation to many aspects of freedom of press, which are detailed below. Implementing laws and regulations on these matters, once adopted, must reflect international standards on freedom of expression.

1. Public Broadcasting Service

Article 9 of the press law states that the government ensures the existence of a public broadcasting service, the creation and functioning of which will be detailed through a specific law. The establishment of this service aims to guarantee the “right of citizens to inform, seek information and be informed”⁵⁰. Although similar public broadcasting services have been created in many countries around the world, it is crucial that safeguards are put in place to guarantee that such service is impartial and independent. This is especially true in Angola where the public TV and radio service are awarded, respectively, to the existing Public Angolan Television (Televisão Pública de Angola, TPA) and the National Angolan Radio (Rádio Nacional de Angola, RNA), through concession agreements.⁵¹ TPA and RNA are both currently state owned media and, in the case of TPA, a state monopoly. Serious concerns remain about balance in the broadcasting of news and information in both vehicles, with disproportionate attention given to activities of the government and ruling party.

These concerns about political bias are exacerbated by the fact that, currently, the directors of both TPA and RNA are appointed by the government. The implementing legislation should be urgently enacted to define the principles and functioning of the public broadcasters and the guidelines for concession agreements. Its text should include provisions on funding, accountability and rules of membership. Powers and responsibilities should be clearly stated and independence explicitly guaranteed. In particular, public service broadcasters should be governed by a board which is protected against political, economic or other interference, its editorial independence should be guaranteed and they should be protected from arbitrary interference by the government in their budgets. Public service broadcasters should contribute to plurality of opinions, provide accurate and impartial information and be widely accessible to the population. They should ensure that the public receives politically balanced information during election periods.

2. National Council for Media Communication

Article 8 of the press law states that “[t]he National Council for Media Communication is an independent body aimed at safeguarding the objectivity and impartiality of information, as well as the freedom of expression and thought in the press.” The very establishment of a statutory body to regulate the media is in itself a concern. International practice indicates that self regulation in the media is highly preferable, especially in countries where rule of law and democracy are still not consolidated. The Declaration of Principles on Freedom of Expression in Africa affirms that “[e]ffective self-regulation is the best system for promoting high standards in the media.”⁵²

Article 8 further states that the composition, competences and functioning of the Council will be regulated by a specific law (lei propria).⁵³ Currently, there is a similar council in operation but its mandate has formally expired. While the new council awaits activation by a specific law and executive appointment, the status of the existing council remains unclear. A new law should be urgently drafted and tailored to avoid this uncertainty and to provide the specific principles and powers under which the new council will operate. In this regard it is important to include provisions in the new legislation to safeguard real independence of the new council. The current body, for example, includes members which represent political parties and this may render the body vulnerable to political interference.

3. The regulation of journalism: the Journalists’ Statute, the Journalists’ Code of Conduct, and the Commission on the Press Card and Ethics

Article 21 of the press law establishes that the practice of journalism shall be regulated by the Statue of Journalists (Estatuto do Jornalista) and the Journalists’ Code of Conduct (Codigo Deontologico). Both the statute and the code of conduct are important to protect journalists’ rights, as well as to ensure professional responsibility. The law states that the Statute of Journalists will be approved by the government and that journalists’ unions and associations should be consulted in the process of drafting the statute. The law, however, does not specify the nature and extent of their participation. The government should ensure meaningful participation of these representative associations in all phases of the drafting process and that their concerns and recommendations are duly taken into consideration by legislators. According to the press law, the statute should define who is a journalist, a journalist’s rights and duties and the conditions for issuing, renewing, suspending and confiscating the press card.⁵⁴ The government should also set up, without delay, the Commission on the Press Card and Ethics, the body comprised of journalists and responsible for issuing the press card. Finally, it is also vital that the government fully respects the provisions of the press law stating that it is the role of the professional associations to draft and approve the Code of Conduct.⁵⁵

4. Broadcasting licenses

The criteria and procedures for applications for radio and TV broadcasting licenses will be defined by a special law (see section on licensing procedures above).⁵⁶ This law should include provisions that guarantee that license applications are assessed in a transparent manner, according to clear and precise criteria and that, whenever denied, refusals should be accompanied by written justification.

5. The use of national languages and the establishment of community radios

Other provisions of the press law could be better clarified by implementing regulations, although the current absence of such regulations does not render these provisions ineffective as in the cases mentioned above.

The press law regulation should require the government to make efforts to remove any obstacles to the circulation of print media to Angola’s inland provinces. This is an essential step towards guaranteeing access to information in rural areas, which has been consistently reported as a problem in the country.⁵⁷ At the moment the circulation of private newspapers outside the capital city, Luanda, is very limited. High printing and transportation costs are, for example, an obstacle to the broad circulation of newspapers. The government could change this situation through measures such as reducing taxes on paper for print media or facilitating the transportation of newspapers to other provinces in the state owned air company (TAAG). Easy and broad circulation of information from diverse sources is crucial to ensuring the population makes informed decisions in the upcoming elections. The Declaration on Freedom of Expression in Africa states that “[e]fforts should be made to increase the scope of circulation of the print media, particularly to rural communities.”⁵⁸ 

Access to information could also be improved through the circulation of information in national languages spoken in different provinces of Angola. According to the press law, media companies should, in principle, convey information in national languages but this should be done in accordance with a regulatory framework that is not yet established.⁵⁹ Although the state owned TV and radio broadcast programs in national languages⁶⁰ there is currently no incentive for private media to also do so.

The future regulation of the press law should also clarify the procedure for the setting up of community radios which, for the moment, do not exist in Angola.⁶¹ Although the establishment of such radios is foreseen by the press law, absent implementing laws and regulations outlining the criteria and procedure for the granting of licenses, these radios can not yet be created. Community radios could play a crucial role in disseminating information to rural areas in advance of the elections. This is particularly important in Angola where illiteracy rates are very high and radio is the media vehicle that reaches the widest proportion of the population.