Interview with Pr. Mouloud Boumghar on Freedom of Speech in Algeria
Professor Mouloud Boumgar
Professor Mouloud Boumgar, a legal expert and university professor in France who specializes in public law, has a broad array of publications and is a human rights activist specializing in Algerian legal and political affairs.
1. Algeria has witnessed an openness in freedom of opinion and expression imposed by the reality of the popular Hirak movement, but it seems that the dialogue could not achieve more than that. What do you think?
Algeria certainly witnessed a form of openness in freedom of opinion and expression during the first weeks of the Hirak movement in February 2019, but it was relative and did not last more than a few weeks. The openness was relative because, as you pointed out, it was imposed by the massive and very peaceful and popular Hirak protest movement against the regime. State television and radio that were under complete control of the executive authority and private television channels that were not under the complete control of the executive authority could not ignore evidence that the demonstrations brought together millions of people, men and women of all ages from all regions of the country and social backgrounds. We witnessed debates in public space, in the streets, in the capital, and other places as well as a great deal of activity on social networks. However, even during this relative openness, the regime’s propaganda did not stoppromoting the regime against certain demands and presenting the regime’s maneuvers as steps toward democratic reform. Regarding freedom of expression, since June of the same year, legal proceedings against people wearing the Amazigh emblem, a cross-border cultural symbol, began. This openness was relative, due to absence of any legislative reform toward openness in freedom of expression or freedom of the press. On the contrary, the effect of this openness was quite the opposite, as the broadband media only lasted a few weeks. Private media, which before the Hirak movement were small, fragile, and had limited spaces of freedom of expression, maintained the same approach after the Hirak movement but paid a grave price for it after the regime regained control.
2. Is the issue of excessive restrictions on freedom of opinion and expression in Algeria a matter of legal texts, practices, or both?
Both legal texts and practices are very restrictive of freedom of opinion and expression in Algeria and end up reducing these freedoms to nothing. For several years before the Hirak movement, private media enjoyed relative freedom of expression. The idea that Algeria has good laws that are not well implemented is a common misconception. This idea was not universal, but some political, economic, and social issues were covered in the press, including torture and forced disappearances during the conflict in the 1990s. However, it was always difficult dealing critically with issues related to religion or morality due to the state and its legislation, and further due to conservative or Islamist currents, inside or outside the state apparatus, which tend to denounce “attacks” on Islam or “national constants” at the slightest opportunity for little critical thinking. However, the relative freedom that prevailed in the two decades prior to the Hirak movement was only the result of the tolerance of the regime that provided itself with safety valves by maintaining the illusion of a truly free public debate. In legislative terms, Organic Law No. 12-05, issued 12 January 2012, on the media, was very restrictive. At that time, one of President Bouteflika’s “reforms” was to impose further restrictions on associations and the media.
These alleged reforms were nothing more than a further crackdown on political parties and associations. There has always been a form of military oversight of the press through a body that was transferred from the Intelligence Service to the General Staff in early 2010. Finally, advertising measures (distributed by a public body, the National Publishing and Advertising Agency) and taxes have always been used against media outlets that are too critical of it, while they have never been denied the right to access information, which has never been effective.
The Hirak movement showed that the relative freedom of expression that characterized the pre-Hirak period contributed to society’s awakening and rejection of the fifth term of an incompetent president and then of the army chief of staff who dictated to protesters what to do and openly directed state agencies without any legal basis or form of legitimacy. Today, legal texts and practices are extremely restrictive.
3. What about freedom of the press? How has it evolved since the Hirak movement?
Freedom of the press evolved in the same direction as freedom of expression. As the regime recovered from the initial destabilization caused by the Hirak movement, the regime attacked social media by prosecuting internet users for inciting unarmed gatherings. The regime’s ongoing crackdown was accompanied by restrictions of criminal legislation. In April 2020, the Penal Code was amended to increase the penalty for contempt of court, judges, civil servants, commanders, and law enforcement officers and to introduce an entire chapter on the publication and dissemination of information or news that undermines public order and security. The new Article 196 bis of the Penal Code punishes with imprisonment for a period of one to three years and a very large fine anyone who deliberately publishes or disseminates false or slanderous information or news by any means that could disturb public order and security. Article 95 bis of the Penal Code, introduced by the same law, penalized acts of receiving funding or assistance in the form of a gift or benefit to carry out or incite acts that may harm the security of the state, the stability and normal functioning of its institutions, national unity, the fundamental interests of Algeria, or public security and order.
The legislator used vague and broad wording for these articles, so they can be used in very different circumstances. In addition to the imprecision and severity of these articles is their deterrent nature. The purpose of these articles is to spread fear among those who wish to express themselves on any issue, even if it is not necessarily political, and foster self-censorship in society.
We referred to the repression of expression on social networks practiced by the authorities as part of a strategy aimed at putting an end to the Hirak movement and preventing any possibility of a return of popular protest of this kind, and preventing its demands for an independent judiciary, respect for freedoms and the establishment of a “civil, non-military state.” Authorities soon seized control of major media outlets to serve as its mouthpieces without any real pluralism. As for private media, Algerian authorities banned numerous Algerian online media outlets from entering Algeria in 2020 and 2021, including the French-language daily Liberté, founded in 1992, which was shut down by the Rebrab family that owned it. Issad Rebrab, businessperson and head of the country’s leading private group, spent eight months in pretrial detention in 2019 after the Hirak uprising, and this closure was seen as a political decision imposed by the authorities. Over the years, the leading newspapers El Watan (published in French) and El Khabar adopted a different, less critical editorial line. Radio M and Maghreb Arabe, owned by Interface Media, survived the 2021 legislative elections as the last bastion of free debate in the Algerian press. However, in June 2023, the director of Interface Media, the respected journalist Ihsane Elkadi, was sentenced by Court of Appeal to seven years in prison, five of which were not suspended. Both media outlets were blocked, and Interface Media was eventually dissolved in 2024. There is no better deterrent to show the limits of the profession. The message is the same, even if the “punishment” is not as severe when an Algerian journalist working for a foreign media outlet is banned from entering his country.
Going back to your question, about legal texts and practice, there is a huge gap between what the constitution stipulates and what happens in practice. The constitution clearly prohibits sentencing journalists to prison for press offenses. However, this did not prevent authorities from sentencing journalists like Khaled Drareni and Rabah Karèche to prison, using legal tricks such as the restrictive view of the concept of journalist (in the case of Khaled Drareni).
Numerous methods were further used to limit the interpretations of constitutional articles and empty them of their content. The Constitution provides that freedom of expression is guaranteed in its Article 52, paragraph 1. Article 55, paragraph 1 stipulates “Every citizen shall have the right to access, obtain and circulate information, documents and statistics.” Article 54, paragraph 1 stipulates “Freedom of the written, audiovisual and electronic press is guaranteed.” The Constitution contains a general clause limiting constitutional rights, allowing for restrictions on them for traditional reasons recognized in international human rights law, such as public order, and further for other, more vague reasons, such as the protection of national constants, as stipulated in Article 34, paragraph 2. Freedoms of expression and the press are subject to specific restrictions under the Constitution, which sometimes overlap with previous restrictions. These restrictions affect every citizen’s right to access and obtain information as “may not undermine privacy, the rights of others, the legitimate interests of companies or the requirements of national security,” as stipulated in Article 55, paragraph 2. The last two reasons in particular threaten the effectiveness of this right due to their imprecision and further pose a threat to the pluralism of expression, regarding the ability of unions to obtain information about certain companies or to raise a debate about military spending. These restrictions further affect the right to disseminate information, ideas, images, and opinions, falling within the freedom of the press, which must be exercised with “respect for religious, moral and cultural constants and the values of the nation,” as stipulated in Article 54, paragraph 2. This basis for restriction is broader than that contained in the general restriction clause in Article 34 of the Constitution, and radically limits the pluralism of information, culture, ideas, and opinions by making the exercise of the right to disseminate information conditional on religious, moral, and cultural conformity determined by the authorities themselves in an undemocratic framework.
Constitutional restrictions are reinforced by referring the Constitution to the law to determine the terms and conditions for its exercise, as stated in paragraph 3 of Article 52 on freedom of expression, paragraph 3 of Article 53 on the right of all citizens to access and circulate information, and paragraph 2 of Article 54 on the right of journalists to access sources of information, the right to create television and radio channels, websites, and electronic newspapers, and the right to publish information, ideas, images, and opinions. Article 3 of Organic Law 23-14 of 27 August 2023 on the media sets out a long list of aspects that must be respected in the exercise of media activity, including respect for the Islamic religion, the national religious reference, other religions, national identity, the moral, cultural, and religious constants of the nation and its values, national sovereignty and unity, the unity of the national territory, the requirements of public order, security and national defense, state symbols, and the economic interests of the country. These conditions’ vague and imprecise nature severely restrict the exercise of freedom of the press and further negate the declared principle of freedom and freedom of expression. These regulations reduce the media to an activity of ideological conformity and harm pluralism. However, Article 3 stipulates that the media must further respect pluralism and the citizen’s right to be fully, impartially, and objectively informed. However, the latter cannot be realized under these conditions, since the law excludes the journalist’s right to access information that undermines “state security and/or national sovereignty and/or national unity and/or territorial integrity,” and “the legitimate interests of companies and threatens their stability,” as stipulated in Article 33 of Organic Law No. 23-14 on the Media.
4. Why do you consider that the reality of freedom of opinion, expression, and the press does not allow for a healthy and competitive electoral climate?
Since the spring of 2021, the prevailing climate has been, to say the least, a toxic one in which no one can express the slightest opinion without risking prosecution and possibly a heavy criminal penalty. The authorities clearly aim not to put anyone expressing their opinion freely in prison, but rather aim to dissuade anyone, regardless of their status, especially journalists and critical voices, from expressing themselves freely. The authorities’ aim is to leave room only for information controlled by them, not to mention the regime’s propaganda, to put an end to the demands of the Hirak movement and prevent any return of widespread peaceful popular protest. To better understand the situation, Article 87 bis of the Penal Code was amended in June 2021, expanding the definition of terrorism to include acts aimed at seeking to gain power or incite it by any means or changing the political system by unconstitutional means. This amended article criminalizes the demands of the Hirak movement. If we add the crime of terrorism, we understand what freedom of expression boils down to in the country’s political sphere. There is further a de facto ban on all demonstrations, the suspension of political parties, and the restrictions on the activities of their most critical members, the harassment of some opponents, the dissolution of major associations, such as RAJ (Youth Action Rally) and the Algerian League for the Defense of Human Rights, and the closure of the media sphere. When at least 200 prisoners of conscience remain in the country, the climate cannot be conducive to freedom of opinion. This climate does not nurture freedom of opinion and expression, or freedom at all. The conditions for a healthy and competitive electoral climate do not exist, and the conditions for a free and pluralistic public debate do not exist.
5. What are the implications for human rights on the 6 September elections? How will the authorities behave?
Personally, I do not see any improvement in the general situation of human rights and fundamental freedoms, including economic and social rights. The political situation seems to be at a standstill. The authorities do not seem to have any plan other than to rush forward, while society seems to be still reeling from the backlash of repression and tyranny after the tremendous hope generated by the Hirak movement.
6. With the Hirak movement, Algerian jurisprudence, whether administrative or judicial, has witnessed harmony, openness, and development in its rulings toward enshrining human rights, but that positive development has receded, as if the courts are reclaiming their role as an extension of the existing authority’s policy. How do you explain that?
There were signs of liberalization within the judiciary, as judges took a public position in favor of real and effective independence of the judiciary. However, this stance did not last more than a few months, just like the relative openness of the press. This was reflected in rulings or decisions to release opponents or demonstrators or not to convict them. I think these were isolated actions by judges and were not part of a fundamental movement within the judiciary. On the contrary, a review of the rulings and decisions in cases related to freedom of demonstration, association, opinion, expression, and the press, clearly indicates a broad and not strict interpretation of criminal provisions that are themselves very vague and very general.
In the case known as the Larbaâ Nath Irathen Court Case,[1] in which about a hundred people were accused of participating to varying degrees in the heinous murder of Djamel Bensmail in the summer of 2021, we have to question the quality of justice and respect for a fair trial when we see dozens of death sentences issued at the end of a swift trial.
7. Strict or repressive regimes of freedom of opinion, expression, and the press often work to develop penal code articles with vague content, wording, and structures to be utilized in accusing and pursuing any opposing or dissenting opinion and classifying it as a crime, and sometimes even a terrorist crime. Are there examples of this in the Algerian legal system?
There are many examples of this in Algerian law, ranging from undermining the morale of the army in peacetime, to defining and condoning terrorism, including insulting the president and challenging the teachings of Islam. The issue lies in the drafting of the legal texts and in their interpretation because the penal code is theoretically subject to strict interpretation.
8. Do you view the closure of media and press institutions and the restrictions on human rights activists in Algeria as a strategically effective policy to neutralize opposing and dissenting opinions? Is it only a tactical and circumstantial, given that repression generates an explosion? What are the prospects for the status of freedom of expression, opinion and the press in Algeria?
In my view, shared by numerous analysts and observers, the repression is very systematic. Repression is clearly aimed to put an end to the Hirak movement and prevent any resurgence of such a peaceful mass movement with similar demands. It is only circumstantial insofar as it aims to respond to an unprecedented destabilization of a regime that, although never democratic, has been able to accommodate relative freedom of expression and relative pluralism, as long as its foundations are not questioned. The current campaign, therefore, aims to respond to a situation in which a large segment of Algerian society is radically challenging this regime through peaceful means and a clear rejection of violence. This has not prevented the regime from using the charge of terrorism in a country traumatized by the civil war of the 1990s, where the charge of terrorism is worse than anywhere else.
The peaceful nature of the Hirak movement posed a major challenge for the regime. The regime was unable to use force, as it did against the demonstrations of October 1988, which sometimes turned into riots and the destruction of public property and symbols of the former one-party state, or against the armed rebellion carried out by the Islamic Salvation Front in 1992. The authorities, starting with the military high command, resorted to systematic repression to question all the fragile gains of Algerian society in terms of associational and party pluralism, freedom of expression, and freedom of the press, which had until then presented itself at minimal cost as a non-authoritarian, if not truly democratic, regime. Since the authorities no longer enjoy any source of legitimacy, whether historical, associated with the National Liberation War, electoral, or even that which economic success can provide, and since it does not seem to have any political project other than to endure, the possibilities of moving toward a less isolated regime are not easy to determine.
9. The restriction and repression of freedom of opinion, expression, and the press are almost a common denominator among the regimes in North Africa. What are the specificities of the Algerian regime regarding that?
In other countries, restriction or even repression is part of the political project of the ruling authorities. These regimes are either satisfied with a relative level of freedom and hide the repression of critical voices with subtle tricks, such as accusations unrelated to the practice of journalism, and skillful communication abroad about the virtues of the country and its regime, or the repression of freedoms as an essential component of the political project being implemented. If the Algerian regime had not possessed the communication skills that some of its neighbors have, the Algerian regime would have endured the previous state of freedoms, which were not as bad as they are now, had the popular movement led by the Hirak not challenged its foundations. In fact, the current state of freedoms in Algeria is a sign of the regime’s lack of a political project.
10. If the Hirak movement inside Algeria was suppressed and experienced a setback, why did this dynamic not remain abroad, especially since numerous associations and activists played a pivotal role in supporting the movement?
I can only formulate some hypotheses or observations with no scientific value. Algerians residing abroad, especially those residing in Western Europe and Canada, participated in the movement in full, more than just supporting it. However, despite enjoying freedoms in their country of residence, they are like the rest of Algerian society, where the degree of organization of civil society, which is also divided, is relatively low. Several factors contribute to this, as the movement did not completely overcome the ideological divisions in Algerian society and the mistrust that existed in the past, but rather avoided and circumvented them, and they will continue to produce negative effects as long as they are not overcome and not put aside. Prior to the movement, Algeria’s remaining civil society had to face the constant undermining of the regime, so Algerian civil society was unable to develop as it wanted. Associations, except those promoted by the authorities, always faced difficulty obtaining legal status, and their funding was always limited. Independent civil society was always under pressure and surveillance.
The Hirak movement was a horizontal movement without central leadership and has been suspected of “organization” and personalization. This requires us to reconsider the organizational forms that have prevailed in the past. Algerians living abroad are further affected by a phenomenon common throughout the world: large horizontal mass movements that do not always find an outlet in the form of traditional organizations in society or in institutions, including in democratic countries. In conclusion, we must not overlook the pressures on Algerians living abroad, many of whom have been arrested or prevented from leaving the country while visiting Algeria. A few dozen cases have had an enormous deterrent effect, causing numerous Algerians to withdraw from the activist scene and beyond. Numerous Algerians censor their social media network activities to avoid any problems while visiting Algeria. Online campaigns in support of prisoners of conscience in the popular Hirak movement are no longer as popular as they were two years ago. Self-censorship is an important factor that should not be overlooked. However, nothing is inevitable and nothing is insurmountable, especially when there is a lot of room to maneuver without fear of arrest at home.
[1] Algeria’s Tizi Ouzou Governorate’s case concerning the burning of a citizen following his suspected involvement in major fires that hit the region.