Have you heard the one about the comedian and the Turkish President?

Turkish President Recep Tayipp Erdogan is world-renowned for being thin-skinned, sulky and vindictive.

courtesy of freerepublic.com

In this regard he reminds me of a fellow President based out of Nairobi. Nonetheless, those flaws in Mr. Erdogan’s character came out afresh when a German comedian made some unwise wise-cracks in an improvised poem that cut too close to the Turkish President’s skin.

Comedian Jan Boehmermann. courtesy of adadha.com

Now Mr. Erdogan and his lawyers are taking advantage of a long unused German legal provision banning defamation of organs and representatives of foreign states to seek the arrest and prosecution of the comedian in question. The section (s.103(1)) of the German Penal Code (as translated by my superb former criminal law lecturer, Prof. Michael Bohlander) reads as follows:-

“(1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.”

As you can see it is the type of broadly drafted offence that prosecutors in repressive societies would enjoy as it allows them interpretive lee-way as to what counts as an ‘insult’:-

  1. Is the ‘insult’ to be objectively judged based on what an ordinary reasonable person would find insulting?
  2. Is it to be semi-objectively judged based on what a reasonable person in the circumstances of the defendant would find insulting?
  3. Is the ‘insult’ to be judged based on the subjective test of whether the defendant actually believed him/herself insulted?
  4. Or, given that the offence is entitled ‘defamation of organs and representatives’, is the ‘insult’ to be judged in a similar way to defamation cases where the test (in Kenya) is whether there was (i) malice; (ii) publication to a third party; (iii) the information was false and (iv) it lowered the reputation of the victim in the eyes of other members of society?

Furthermore, does the defendant have a defence if the words deemed insulting are actually true, or they took steps to verify the truth of it? Do the other defamation defences (fair comment, absolute and qualified privilege etc.) apply? I’m not familiar with German law (or the German language!) so I don’t know how their legal system answers these issues. It doesn’t help that the last prosecution- apparently involving the late Shah of Iran’s wife- was in the 1970s (sorry I can’t find a link to this- but I heard it on DW TV news channel).

the last Shah of Iran and his wife, Empress Farah. courtesy of operafresh.blogspot.com

Although the ultimate decision about prosecution is in the hands of the German Government, the one problem that Erdogan will face is one that he is unfamiliar with- the independence of the German prosecutorial and judicial system. Unlike Turkey, where the Erdogan government can- through prosecutors and the judiciary- seemingly order the arrest, prosecution and detention of journalists, the blocking of Twitter and Facebook and the closing of news outlets at will, he will face an uphill fight to compel Germany to prosecute the comedian especially since in the opinion of at least one German lawyer, the offending poem was ‘within the limits of artistic freedom‘. Its the same old question of balancing the criminal law as an instrument of last resort with others’ fundamental rights and with individual autonomy.

All of this has led some Germans to ask whether the the old fashioned law should be repealed. Indians are asking the same thing about out-dated anti-free speech sedition provisions of their Penal Code (see here and here). Such laws are used to target those who offend political leaders. Shouldn’t Kenyans ask the same questions of our Penal Code? Shouldn’t we ask the same questions about the modern children of these 19th century repressive laws (like s.29 of the Kenyan Information and Communications Act: ‘improper use of a licensed telecommunications system’).

And if you’re wondering why I haven’t posted the German comedian’s offending video on this site, it’s because Kenya has a similar provision in its Penal Code (s.67)- the quaintly titled ‘defamation of foreign princes’ offence. And unlike Germany, Kenyan prosecutors are not shy about meeting their quotas on convicted bloggers (as I’ve discussed previously).

The relevant provision of Kenyan law reads as follows:-

 “Any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to degrade, revile or expose to hatred or contempt any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Kenya and the country to which such prince, potentate, ambassador or dignitary belongs is guilty of a misdemeanour.”

Henry the VIII, renaissance Prince and King. Courtesy of theanneboleynfiles.com

In modern times, ‘prince’ is usually interpreted to mean heads of state (usually monarchs and presidents), and- possibly- heads of government like Prime Ministers and Chancellors. Although both the German and Kenyan provisions are called ‘defamation’, it is clear that the Kenyan law is the one that is most similar in drafting to criminal defamation and offers the multitude of defamation defences to the accused.

The Kenyan law has another important qualification that may assist defendants. Unlike the German provision, to be culpable, an accused in Kenya must have the specific intent to ‘disturb peace and friendship between Kenya and the country to which such prince, potentate, ambassador or dignitary belongs’. So a comedian flinging gratuitous insults at a foreign head of state simply to test the boundaries of free speech might- surprisingly- get off the hook in a Kenyan court.

Furthermore, being a misdemeanour in Kenya, the maximum sentence on conviction is 2 years (Penal Code s.36) which compares favourably with the German maximum of 3 years or a proportionate fine (or 5 years if the insult is slanderous). And the recent sentencing guidelines in Kenya recommend a starting point of a non-custodial sentences for a misdemeanour.

So, strange as it might seem, if you must gratuitously insult President Recep Tayipp Erdogan, perhaps avoid doing it in Germany and karibuni Kenya!


courtesy typrogramlyrics.blogspot.com