|Fully Authoritarian Regime|
|Restrictions must be provided by law|
|Law must be formulated with sufficient precision|
|a) Rights of others OR   |
|b) National security, public order, public health or morals|
|Necessary for a legitimate purpose (see legitimate grounds)|
|Only way to achieve protection|
|Restriction on expression should not be overbroad|
|Least intrusive instrument amongst those which might achieve their protective function|
|Proportionate to interest to be protected|
|Intent to incite discrimination, hostility, or violence|
|Direct & immediate connection between expression & threat|
Analysis – First prong: (1) Legality – Angola’s rebellion incitement law is formalized under sections 315 of the Angolan penal code. However, the provision is over broad and not sufficiently precise. For example, Section 315(1) states that “[w]hoever, by illegal means, performs any act which, directly or indirectly, modifies, in whole or in part, the constitutional law and subverts the state institutions established by it shall be punished....” Including the term “illegal means” in a statute designed to articulate prohibited behavior amounts to circular reasoning and permits unfettered interpretations of the statute. In this case, it is not clear how attending a meeting where “reading” occurred amounted to an “illegal mean” or led (directly or indirectly) to the subversion of state institutions. Under the statute and its application in this case, almost any act could be deemed to be a violation of Angola’s incitement laws. Angola’s incitement laws are not sufficiently precise and therefore, this prong fails.
Second prong: (2) Legitimate grounds – Following the arrests of the activists, Angola’s interior minister attempted to convey the legitimate grounds for their detention by postulating its necessity as a means of preserving “public order and security.” However, there is no indication that any of the activists engaged in any act that threatened public order or security. As noted the activists were simply attending a book club and were reading and discussing a book. Furthermore, while Section 315 of the Angolan penal code criminalizes “subverting” state intuitions, it does not articulate the types of behaviors that would threaten public order or national security and thus legitimize restrictions on particular forms of expression. Reports indicate that the activists were reading and discussing a book about peaceful democratic political activism. Criminalizing this “behavior” is not a legitimate ground for restricting freedom of expression, as it does not engender threats to public order or national security. Therefore, this prong fails.
Third prong: (3) Necessity – The arrests, arraignments, and eventual convictions of the activists were not based on legitimate grounds, therefore it follows that the actions of the Angolan government could not have been necessary. International law requires that in their incitement law, states only employ restrictive measures necessary for legitimate purposes, and that they be the only way to achieve the protective function. In this case, the Angolan government is restricting reading and discussion by imprisoning the activists. Even if public order and security were invoked, and there is no indication that they were, this cannot be the only way of maintaining public order and security. The actions of the Angolan government are therefore unnecessary and this prong fails.
Forth prong: (4) Proportionality – The arrests, arraignments, and eventual convictions of the activists were not based on legitimate grounds, nor were they necessary, therefore it follows that the actions of the Angolan government could not have been proportional. The activists were sentenced to lengthy prison sentences for simply reading and discussing a book. Moreover, the statute they were charged under calls for lengthy prison sentences for indeterminate acts open to broad interpretation by Angolan authorities. International law calls for states to employ the least restrictive measures when restricting expression. Even if the charges in this case sought to protect legitimate state interests (an unconvincing proposition) and detention was a necessitated corollary to “reading”, the length of the activists’ pre judgment detention and draconian convictions hardly satisfy the “least restrictive” test mandated by international human rights law. Therefore, this prong fails.
Fifth prong: (5) Intent – The intent requirement, namely the intent to incite discrimination, hostility, or violence requirement, is absent from Angola’s incitement law. In this case, there is no indication that any of those intentions existed. Angolan authorities failed to demonstrate that any of the activists had any intent to “incite violence”. Therefore, this prong fails.
Sixth prong: (6) Causation – In this case, the activists were charged and convicted based on the peaceful act of reading and discussing a book. There was no threat associated with their actions and the court failed to demonstrate any causation between their act and any threat to the public order. Therefore, this prong fails.
Conclusion – The fact that the Angolan laws and their application by the courts do not comply with the six-prong test analyzed above renders the Republic of Angola as non-compliant with the universal standard on incitement.
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