Penal Code Amendment Bill touches criminal defamation, age of criminal responsibility and bomb hoax |07 October 2021

Vice-President Ahmed Afif and Attorney General Frank Ally yesterday presented the Penal Code Amendment Bill (2021) to the National Assembly, which was approved by 24 votes.

The Bill has two main objectives; the first of which is to remove criminal defamation, and to increase the age at which a child can be charged for an offence from 7 years to 10 years old.

In relation to criminal defamation, VP Afif explained that the Bill seeks to remove criminal defamation, by removing Section 184 and Section 191 from Chapter 19 of the Penal Code.

As per his explanation, the Office of the Attorney General (OAG) has advised that criminal defamation is an outdated concept, and is inconsistent with the norms and practices of international agreements which Seychelles has signed, including Article 19 of the International Convention on Civil and Political Rights and the provisions of the Universal Declaration of Human Rights, which condone the limitations of criminal defamation on freedom of expression.

“Everywhere around the world, criminal defamation poses a big problem. Here in Seychelles, it is rare for someone to be charged with this offence, and in the past ten years, only one person was charged and judged,” he said.

“Yes it is rare for someone to be charged with this offence in Seychelles, but the law can be used to silence the media, which is a threat to liberty of expression. It must be made clear that the law on criminal defamation is not used to protect the reputation of anyone, but it is used only to silence those who oppose government and government officials,” VP Afif stated.

The approval of the Bill signals a “new chapter in a new direction and a positive signal for the media and international community,” added VP Afif, who also highlighted the international obligations to abolish criminal defamation. As was evidenced by Ramkalawan V Parti Lepep, and Ernesta V Bastienne, both civil defamation cases, individuals including politicians have other avenues through which to seek redress.

As for the age of criminal responsibility, as the law stands, a child can be arrested, detained and charged with a criminal offence as from 7 years, considerably lower than other countries across the globe. It must be noted that the law dates back to 1952 and with the developments over the years, 7 years old is not an appropriate age to expose a child to the strict and severe judicial system and criminal proceedings.

As such, it has been proposed that the age for criminal responsibility in Seychelles be set at 10 years, despite the norm in some jurisdictions at 14 years old.

Presently there are no facilities to accommodate minors in detention, or who have been sentenced in a correctional facility. Establishing such facilities is among government’s plans for the future, on account that Section 94 (1) of the Children’s Act which dictates that any child under the age of 14 cannot be sentenced to an imprisonment term.

“In brief, the policy of this amendment is to better protect children from adverse effects which are associated with criminalisation of actions and activities against the law, to ensure that any unacceptable behaviours committed by any child is investigated, to know the cause, and to take remedial actions to correct the behaviour of the child and reduce risks of this occurring again,” VP Afif added.

Moreover, the Bill introduces the offence of bomb hoax, making provisions for persons to be charged in the event of written and verbal bomb threats. The maximum penalty for bomb hoax will be at R125,000, and 5 years imprisonment.

Among the other amendments proposed by the Bill are to increase penalties which are no longer relevant to the Penal Code, such as Section 173 (A) of the Penal Code, driving a vehicle under the influence of alcohol be increased to R25,000.

Furthermore, the definition of ‘money’ is to also include virtual currencies such as crypto-currencies.

Remove the concept of Justice of Peace, to be considered when the National Assembly debates on the Statute Law Revision Miscellaneous Amendments (2) (2021), to be tabled before the assembly in the near future.

Hon. John Hoareau recommended that the age of criminal responsibility be set at 12 instead of 10 years. Hon. Hoareau was joined by United Seychelles (US) representative Wallace Cosgrow who also recommended the age be set at 12 years.

Hon. Gervais Henrie, Linyon Demokratik Seselwa (LDS) representative for Mont Buxton, afforded his support for the Bill, deeming it as a bold move on government’s part.

For her part, LDS elect for Perseverance, Desheila Bastienne, launched a plea to parents to be more responsible in raising their children and instilling in them the correct values.

She asserted the urgency in having proactive parents, and expressed her satisfaction at the proposed age of 10 years for criminal responsibility.

Among the other members who voiced their opinions on the Bill were Hon. Wavel Woodcock, and Hon. Audrey Vidot.

VP Afif in rounding up assured the assembly that the proposed age was set after much consultation, and concerning defamation, he said it is important that all citizens and institutions should be able to express themselves freely without fear. He agreed with Hon. Henrie who had recommended a standalone Act to guide defamation, remarking that government is open to the idea.

A few amendments were made to the Bill.

Laura Pillay