Author
By Nancy Sesay
The recent alleged rape of a university student by Sierra Leone’s erstwhile Deputy Minister of Education, Mahmoud Tarawallie, has rekindled the debate for protecting the identity of rape victims in Sierra Leone. Tarawallie, who served in President Koroma’s cabinet as deputy Minister of Health and subsequently of Education, is accused of raping a 24-year-old student on the pretext of awarding her a government scholarship to study abroad.
The case received wide
spread media publicity after the victim filed a rape complaint with the police. The Minister was subsequently arrested, detained, relieved of his position and subsequently charged to court. This type of case is not unprecedented, and it raises the issue of a rape victim’s rights to privacy versus freedom of the press in the context of the media’s disclosure of the identity of a rape victim.
As soon as the victim filed a rape complaint, her identity was broadcast over the radio and splashed across the pages of various local newspapers. It did not take long for other papers and radio stations to follow suit in the name of freedom of the press. Some journalists argued that they had a right to do so, on the grounds that the victim had granted an interview to a local radio station and because it was a high profile case. This barrage of media attention was immediately and roundly condemned by a range of civil society actors, including women activists. The Independent Media Commission (IMC) called for adequate and continued protection of the rights of the victim. The IMC, which is Sierra Leone’s media regulatory body, called the publications “a gross violation” of the Media Code of Practice. The Code prevents the media from publishing the identity of victims of sexual violence unless there is “adequate justification”, as deemed by law.
The right to privacy and freedom of the press are both rooted in Sierra Leone’s laws. However, negotiating the balance between where one right ends and the other begins can be controversial and problematic. On the one hand, the 1991 constitution guarantees privacy rights, which includes an individual’s private and family life. And yet on the other hand, it ensures freedom of the press and expression.
In 2012, the Sexual Offences Act was passed. The Act protects the rights of rape victims. In particular, it bans publications that identify a rape victim when the case is before a court. Considering both constitutional and legislative provisions, the question that one may ask is whether one right takes precedence over the other? While the Constitution guarantees both rights, it limits how individuals can enjoy or exercise them. Freedom of the press, for example, is subject to the protection of the rights of others—such as the rights of rape victims as contained in the Sexual Offences Act. In the same way, the right to privacy is also made subject to respect of the rights of others and for the public interest. Despite the ‘give and take’ manner in which the constitution provided for rights and freedoms and given their occasionally conflicting nature, the Supreme Court of Sierra Leone is yet to decide on such paramount, but conflicting, rights.
In the United States, this question has been resolved in a way that arguably favours the press. The American Supreme Court in a number of landmark cases has consistently ruled that freedom of the press is paramount over privacy rights, and the US Constitution prohibits the enactment of any state legislation that tries to limit that freedom, including disclosing identity in rape cases. Sierra Leone’s stance is much more progressive, especially at this stage of its development. Rather than allow press rights to overrule individual rights, freedom of speech is subject to the stipulations outlined in the Sexual Offences Act of 2012.
This Act forbids the disclosure of victims’ identity and may exclude from court proceedings all persons not having direct interest in the case, as well as conduct the proceedings in another place, such as in the magistrate’s chambers and away from public view. In addition, though it is not unusual for adult victims of rape to testify in open court, the Sexual Offences Act requires the court to use screens or other arrangement to shield the victim’s identity or to keep the proceedings (or any part of it) from being filmed.
Sadly, many of these provisions were not complied with in the Mahmoud Tarawallie case. The victim testified in open court in the public’s full view, without any screening. The case has now been committed to the High Court for trial. It is hoped that it is not too late for the victim to enjoy protections provided under the law. Both civil society and women activists deem the failure to provide these protections to the victim as undermining the great strides already made in the country towards protecting and promoting the rights of women and girls. Considering the government’s international obligations under the UN Convention on the Elimination of all forms of Discrimination Against Women, United Nations Security Council resolutions 1325 and 1820, the African Charter, the AU Decade Declaration and the Maputo Protocol to protect women, there should be a holistic approach to promoting the rights of women.
Concrete and practical steps must be taken to ensure that the provisions of the law protecting victims are complied with. It is not enough for the law to contain these provisions. They must be implemented. Current data shows that almost half of the reported cases of violence against women are rape cases. Few end up in court and even fewer are successfully prosecuted. This situation will remain unchanged until we take the necessary steps to implement the letter and spirit of our current laws and protect victims from further intimidation and trauma.
Nancy Sesay is Program Coordinator at OSIWA's Sierra Leone office in Freetown.
Follow Nancy on Twitter @yainkainmaria5
Culled from OSIWA website
