Hanciles’ Allegation is Groundless

By John Lansana Musa, USA.

Oswald Hanciles, a contributor to the Patriotic Vanguard and other mass media, has alleged in a parenthetical allegation that Winstanley R Bankole Johnson(photo), Mayor of Freetown or the Chairman of the Freetown City Council, has committed defamatory libel in the course of making his case in the municipal function of cleaning the Capital. The purpose of this rejoinder to Mr. Hanciles is to clarify the basis of his allegation against the Mayor on the fallacious grounds he has made them. From the tenor of his claims of defamation, it is for nought that he has stoutly charged the Mayor. Mr. Hanciles, reportedly a fine writer and analyst of some acclaim, fell down this time in an adventitious posting to the Patriotic Vanguard in which he canvasses notions of seditious libel, defamatory libel among a battery of legal matters he did not clearly explain to his readers. It is now the present writer’s turn to take exception to his bald assertions against the Mayor of Freetown in the public interest.

Mr. Hanciles has claimed that he was defamed by the Mayor. His allegations of defamation are strewn throughout the article but Mr. Hanciles never tells us the elements of the crime or tort which forms the basis of his claim. Mr. Hanciles builds a strawman argument for defamation, then he kicks it down and concludes without proving the allegation, that the Mayor has defamed him. But how does one reach such a sedate conclusion against a Mayor or another person so charged? Or to properly address the matter, how does an apparent journalist/commentator or a common Sierra Leonean make charges of defamation against a Public Official explaining his tangle with the central government under the charter of a local council?

These queries shall be the purport of the rejoinder we are about to undertake against Mr. Hanciles’ allegation of defamation. It appears from Mr. Hanciles’ article that his charges are cut and dry as he has assailed the Mayor with a sprinkle here and a dash there of legal terms and definitions to make his case against the Mayor, but nary a lightening from the thunder of his blast. In matters of public discussion we must be clear to the reader that we not merely waging a war of nerves but we must be certain there is built inside such matters coherence, relevance in the public interest. That will be our touchstone in the following confutation against Mr. Hanciles’ claims of defamation.

It is conclusive from the assertions of the Mayor in retort to Mr. Hanciles’ activism in the interest of cleaning Freetown of refuse that he has not defamed Mr. Hanciles for three reasons: (1) The Mayor asserted a fair comment; (2) Mr. Hanciles is a Public Figure; (3) The Mayor is a Public Official who enjoys Absolute Immunity from Suit as a local legislator.

DEFAMATION OR FAIR COMMENT?
First, the fair comment defense of the Mayor. Mr. Hanciles who enjoys more avenues to canvass his views in the mass media and the internet than the Mayor, is alleging that he has been defamed when the Mayor mentioned him in a public statement relating to his municipal function as mayor or Chairman of the Freetown City Council. Under the existing law on defamation in Sierra Leone, a person is guilty or liable in defamation if the following circumstances accompany his alleged remarks:

KNOWINGLY PUBLISHING A FALSE DEFAMATORY LIBEL.
“Any person who maliciously publishes any defamatory matter knowing the same to be false shall be guilty of an offence called libel and liable on conviction to imprisonment for any term not exceeding three years or to a fine not exceeding one thousand leones or both.”

DEFAMATORY LIBEL
“Any person who maliciously publishes any defamatory matter shall be guilty of an offence called libel and liable on conviction to a fine not exceeding seven hundred leones or to imprisonment for a period not exceeding two years or to both such fine and imprisonment.”

Do the remarks made by the Mayor come under the pair of circumstances mentioned above to constitute defamation of Mr. Hanciles? Mr. Hanciles has not made his allegation based on groundswell legal support, nor has he stated the essential facts which would lead a judge or jury to convict the Mayor that the latter defamed the former with malice and Mr. Hanciles as a result suffered damage to his reputation in his profession.

Second, there are extenuating circumstances under which an allegation of defamation as made by Mr. Hanciles will fail. For instance.

CASES IN PUBLICATION IS CONDITIONALLY PRIVILEGED.

Section 30

“where the defamatory matter consists of fair comment wither on any matter the publication of which or on nay report which, is referred to in sections 26 to 29 or in this section”; or

“where the publication is made in order to answer or refute some other defamatory matter published by the person defamed, concerning the person making the publication”; or

“where the defamatory matter constitutes an answer to inquiries made of the person publishing it, relating to some subject as to which the person by whom or on whose behalf the inquiry is made, has, or on reasonable grounds is believed by the person publishing to have, an interest in knowing the truth, and if the publication is made in good faith for the purpose of giving information in respect of that matter to that person”; or

“where the defamatory matter constitutes information given to the person to whom the defamatory matter is published with respect, to some subject as to which he has, or is on reasonable grounds believed to have, such an interest in knowing the truth, as to make the conduct of the person giving the information reasonable in the circumstances.”

It appears that the Mayor’s remarks come within the ambit of the circumstances described above under the law of defamation in Sierra Leone. Simply put, the Mayor mentioning Mr. Hanciles in his public remarks was refuting a piece of writing which Mr. Hanciles earlier made or was clarifying the point asserted or correcting the public record where necessary. How then could an explanation in these palliating circumstances constitute any defamation if it falls within the purview of the Mayor’s duties as local legislator?

MR. HANCILES IS A PUBLIC FIGURE WITHIN THE LAW
More than this, Mr. Oswald Hanciles writes columns for newspapers and contributes articles to the internet blogs. He could be called a journalist within the meaning of writing and reporting news articles on the canons of professional journalism that he will be fair, neutral and detached while doing such writings. Mr. Hanciles could be called a commentator or analyst of public issues if he chooses to do so with a slant and partisan sway when not writing as journalist. In any of these roles, he serves the public trust. But what if Mr. Hanciles crosses the line of neutrality into activism, partisanship or politically tainted commentary as should be his constitutional right under Chapter III of the Constitution of Sierra Leone (Act No. 6 of 1991) and under other kindred human right traditions for freedom of expression, opinion and views, he ceases to be a journalist with a privilege?

This question impinges on the matter whether Mr. Hanciles ceases to be a journalist and forfeits the privilege which vitiates the writings of a writer who wanders into opinion-making, meanders into partisan commentary that draws him into controversy, thereby clothing him with the indicia of a PUBLIC FIGURE. Hence Mr. Hanciles the writer drawn into controversy is quite different from Mr. Hanciles the writer/journalist straddling the fence of objectivity of the canons of journalism.

Let us illustrate the point we are making about Mr. Hanciles as a public figure owing to his activism. Commencing his article, altogether replete with legal assertions that are not quite clear to the ordinary reader owing to dubious ellipses in his writing, Mr. Hanciles makes a hasty conclusion from weak premises,

“Since I was recently bitten by Mayor Winstanley Bankole-Johnson in a publication that smacks of Defamatory Libel against me, Dr. Blyden could be heartened that one more victim of Defamatory Libel could be fighting from her corner.....I have been boning on “Defamatory Libel”...and “Seditious Libel.”

Mr. Hanciles, a writer/commentator has admitted alluding to Mayor Winstanley Bankole-Johnson in connection with the municipal function of cleaning Freetown and even engaged in some form of public activism in congress with a youth organization called “Youth Arise”. To be precise, we shall let Mr. Hanciles himself tell us about his role as activist:

“For apart from writing many articles to promote the idea of making “Freetown the Cleanest City in Africa”; I actually got the youth group I am guru for - “Youth Arise!!!”- to meet with Mayor Winstanley, and to promote ideas that would lead to the cleaning of the city.
I signed letters to hundreds of schools, churches, mosques, all the leading international organizations in Salone, to solicit their support in 2004/2005 to make “Freetown the Cleanest City in Africa”. How can the Mayor imply that I wanted the city of Freetown to be filthy - to heap blame on the APC? Should the Mayor commit defamatory libel with impunity?”

In the statements made above, Mr. Hanciles has demonstrated that he is more than a writer, reporter or commentator on public affairs. He has accepted the role of ACTIVIST in the roles he has enveloped himself into as describes by his own hand above. To wit, in various community group activities he claims to be GURU, he consequently came down the fence of objectivity admittedly became a civic leader of some standing in the controversy over the removal of refuse in Freetown.

Under the modern elements of the law of defamation, Oswald Hanciles is a PUBLIC FIGURE in accordance with a leading case. In determining who is a public figure in the context of all the facts, Mr. Hanciles has averred, the rules arising from the landmark case of New York Times Company v. Sullivan, 376 U.S. 254 (1964), provide two specific categories:

(1) GENERAL PURPOSE PUBLIC FIGURE: a "celebrity," whose pervasive fame or notoriety has made his or her name a "household word."

(2) LIMITED PURPOSE PUBLIC FIGURE: someone who has voluntarily assumed a leading role in a particular public controversy.

From Mr. Hanciles’ acknowledged activism in the controversy surrounding the cleaning of Freetown, writing, analyzing, commenting, engaging with community and leading youth organization, he was thrown into the threshold of a limited purpose public figure who “voluntarily assumed a leading role in a particular public controversy.” In doing so, Mr. Hanciles ceased being a neutral, detached writer or journalist with no axe to grind.

To now hear Mr. Hanciles, sitting on the cutting edge of a controversy as an ACTIVIST/LEADER, complaining he has been defamed belies the elements of the allegation he has baldly asserted.

In contrast to being a PUBLIC FIGURE, the Court defined a PUBLIC OFFICIAL. The Supreme Court has said that a public official is one who, at the very least, has or appears to the public to have, a substantial responsibility for or control over governmental affairs. In this matter under review, the Mayor is a public official. There lies the rob of the matter, a public FIGURE making allegations against a public OFFICIAL.

But let us continue examining Mr. Hanciles’ case against the Mayor. In the publication referred to by Mr. Hanciles, the Mayor mentioned Mr. Hanciles in the following passing remarks:

“But Sa Lone Times contributor Oswald Hanciles knew far better, when in an article of 2nd July, 2004 - barely two days after our inauguration - he intimated that “......as long as it is Bankole Johnson that the APC has made Mayor, the SLPP must do all in its power to stifle him, failing which they should forget about the 2007 elections”. How disappointed the SLPP will be come post 28th July.”

And in making his allegations from that paragraph adverting to Mr. Hanciles’s earlier assertion about the choice of the Mayor by the APC, Mr. Hanciles says this:

“Mayor Winstanley Bankole-Johnson recently published a widely circulated document (published in several local newspapers) that I wrote an article in this Column on July 2, 2004, that the SLPP government should “stifle” him...I wrote nothing about Mayor Winstanley on the said July 2, 2004.”

We must not forget that while Mr. Hanciles denied he had written certain words in his July 2, 2004 column, he failed to mention the exact text of what he then said. Instead of Mr. Hanciles attempting to syntactically analyze or complain about what said in his column, he should quickly have supplied a verbatim transcript of what he had hitherto written in that column. So why did Mr. Hanciles fail to juxtapose his exact words with those allegedly defaming him? A panel of jurors in a jury trial, or a judge in a bench trial would more likely than not request that Mr. Hanciles supply his column of July 2, 2004 to compare with the Mayor’s alleged misrepresentations of Mr. Hanciles’ column.

Witness the circumlocution of Mr. Hanciles in explanation of his own case: Instead of providing his readers with quotations from his July 2, 2004 column, Mr. Hanciles chose to syntactically analyze what the Mayor said in this indignant paragraph quoted below:

“What I wrote on the matter on July 6, 2004 has no word like “stifle”. What Mayor Winstanley could be saying is that the city of Freetown was kept filthy for almost three years because of writers like us whose ‘literary ammunition’ was used by the SLPP government to marginalize the APC-elected city council. This is criminally libelous!!”

By now the reader would be asking with me, where are Mr. Hanciles’ exact words which the Mayor of Freetown misrepresented? But Mr. Hanciles gives us only an interpretation of what the reader has not seen.

THE MAYOR ENJOYS AN ABSOLUTE IMMUNITY FROM SUIT
Apart from the Mayor’s statement concerning Mr. Hanciles being a fair comment or Mr. Hanciles himself turning into a public figure by his activism, the Mayor may enjoy an absolute immunity from the claim of defamation by Mr. Hanciles. Let me elucidate the point. When the APC won the majority in the City Council elections, the new members of the Council acted in accordance with Section 125 of the Local Government Act 2004, viz - that

“A Chairman shall be elected by a simple majority of all councillors from among the elected councillors.”

In accordance with the same Act, the Chairman may also be called the Mayor in the case of the Freetown City Council. According to Mayor Winstanley Bankole-Johnson’s statement mentioning Mr. Hanciles,

“But Sa Lone Times contributor Oswald Hanciles knew far better, when in an article of 2nd July, 2004 - barely two days after our inauguration - he intimated that “......as long as it is Bankole Johnson that the APC has made Mayor, the SLPP must do all in its power to stifle him, failing which they should forget about the 2007 elections”. How disappointed the SLPP will be come post 28th July.”

This is the statement that drew the wrath of Mr. Hanciles to charge the Mayor with defamation. The Mr. Bankole-Johnson was referring to Mr. Hanciles’ views on his alleged wayward election of as Mayor by the APC council members. Within that context, the Mayor was also making a statement concerning his ministerial duties as Mayor or Chairman of the Freetown City Council. In doing so, it is reasonable to assume he was not actuated to defame Mr. Hanciles at first blush. In explaining his role as Chairman and the attendant responsibilities of cleaning the city, he was speaking from his role as a local legislator about his duties within the Local Government Act against the claims made against him by the President in a press release.

In passing, we must say what constitutes the absolute privilege from suit means within this context we are discussing. In making statements within the Speech and Debate Clause of the Constitution of Sierra Leone, Parliamentarians are granted immunity to so speak without cause to worry of being sued in any place. More specifically, Section 98 of the Constitution grants that

“There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament. “

Section 99 clearly addresses the immunity:

“Subject to the provisions of this section, but without prejudice to the generality of section 97, no civil or criminal proceedings shall be instituted against a Member of Parliament in any court or place out of Parliament by reason of anything said by him in Parliament.”

The question that may be growing in the mind of the reader after reading these provisions will culminate into asking whether these references apply to the City Council or local legislative bodies. They in fact apply as many courts say it is axiomatic from Common Law that the Speech and Debate Clause of national constitutions apply to Parliamentarians as well as local legislators.

There is groundswell support for law suits such as Mr. Hanciles threatens that they will fail in tradition, substantive law, and Common Law. To wit, the United States Supreme Court has made many decisions and their precedents aboud in the Commonwealth absolving local legislators in matters such as we are talking about here. For example, legal treatises support the proposition as follows:

Leading treatises on municipal corporations explained that “[w]here the officers of a municipal corporation are invested with legislative powers, they are exempt from individual liability for the passage of any ordinance within their authority, and their motives in reference thereto will not be inquired into.” 1 J. Dillon, Law of Municipal Corporations §313, pp. 326-327 (3d ed. 1881).

Thomas Cooley likewise noted in his influential treatise on the law of torts that the “rightful exemption” of legislators from liability was “very plain” and applied to members of “inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like.” Cooley 376; see also J. Bishop, Commentaries on the Non-Contract Law §744 (1889) (noting that municipal legislators were immune for their legislative functions).

What is more, the United States Supreme Court has ruled on many occasions upholding such a tradition in law.
“The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege “has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries” and was “taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.” Tenney v. Brandhove, 341 U.S. 367, 372 (1951). The Federal Constitution, the constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U.S. Const., Art. I, §6; Tenney v. Brandhove.

The Court has also relied on the Common Law tradition to say,

“The common law at the time §1983 was enacted deemed local legislators to be absolutely immune from suit for their legislative activities. New York’s highest court, for example, held that municipal aldermen were immune from suit for their discretionary decisions. Wilson v. New York, 1 Denio 595 (N. Y. 1845). The court explained that when a local legislator exercises discretionary powers, he “is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done.” Id., at 599. These principles, according to the court, were “too familiar and well settled to require illustration or authority.” Id., at 599-600.”

Accordingly, were Mr. Oswald Hanciles to prefer charges against the Mayor of Freetown for defamation, he would be skating on thin ice with no support in the law of defamation because Mr. Hanciles is variously a writer/commentator, an activist who has been drawn into controversy that makes him a public figure. Also, Mr. Hanciles will be unable to lay a glove on the Mayor if he enters into a defamation law suit because the Mayor is clothe in the indicia of absolute immunity as a local legislator.

Mr. Hanciles clearly is a writer to behold because he attempts to be a fine journalist or commentator on public affairs in some of his writings we have seen from time to time. But as we stated in our opening paragraph, he is presently making his stout allegations of defamation against the Mayor on tenuous grounds.