Ruling by the Press Ombudsman and an Adjudication Panel
October 23, 2013
This ruling is based on the written submissions of Stemela & Lubbe Attorneys, for Mr Lafras Luitingh, and Independent Newspapers (Cape Argus, Saturday Star, and Pretoria News Weekend), as well as on a hearing that was held on 17 October 2013 in Johannesburg. Luitingh was accompanied by his legal counsel (Jaap Cilliers and Wilna Lubbe); the reporter and his legal council (Jacques Louw) represented Independent Newspapers. The two members of the Panel of Adjudicators who assisted me were Susan Smuts (press representative) and Peter Mann (public representative).
THE TEXT IN DISPUTE
Luitingh, presently heading the South African security company Sterling Corporate Services (SCS) and formerly involved in a similar company called Executive Outcomes, complains about two stories in the Weekend Argus (the exact same text appeared in the Saturday Star in the form of three stories, and a section of that was published in the Pretoria News).
The front-page story in the Weekend Argus of 1 September 2012 was headlined:
· UN slams SA ‘private army’
o Security firm accused of breaking sanctions, torture
o SA failing in its obligation to clamp down on mercenaries, says report
A follow-up story was published on September 29 (on page 11), headlined SA-linked military firm loses anti-piracy contract.
The headline on the front-page story in the Saturday Star (published on the same date) was materially the same than that of the Weekend Argus. The story continued on page 4, headlined Claims of torture by SA company – Demands for firm action by UN Security Council. The follow-up story on September 29 carried the same headline that that of the Weekend Argus.
A shortened story of the first one in the Weekend Argus appeared in Pretoria News, headlined UN slams SA security firm in Somalia – Behaviour like a ‘private army’.
For the purposes of this finding, the panel shall use the reportage of the Weekend Argus.
The first story, written by Ivor Powell and Bianca Capazorio, said that a UN report had “slammed” SCS for mustering a “private army” in defiance of international agreements. The UN also reportedly condemned SCS for “brazen, large-scale and protracted violation of the Somalia sanctions regime”, and for allegedly torturing local recruits. The report had been authored by the UN’s Monitoring Group on Somalia and Eritrea (SEMG) and completed in July 2012.
The reporters also wrote that the report accused the SA government of failing to fulfil its international obligations “which include clamping down on mercenary activities”. According to the report, SCS operated as the private army of President Abdirahman Mohamud Faroole of the semi-autonomous region of Puntland (a region in northeastern Somalia).
They also reported that SCS had been actively involved in several operations against Faroole’s enemies, “though officially contracted only to train and provide military advice to the Puntland administration”. The story added that SCS had been mainly contracted to train an anti-piracy force – yet “the bulk of Sterling’s operations have been directed against villages in the hinterland with little connection to Somali pirates holding shipping routes to ransom”. The story mentioned examples of alleged torture and “murderous corporal punishment” in October 2010 (this was accompanied by a picture of a person who had been tied and beaten up at a Saracen camp, the forerunner of SCS, which appeared in the SEMG’s report).
The second story was written by Powell. He reported that SCS had lost a contract to train a paramilitary Puntland Maritime Police Force against piracy in the Horn of Africa, and elaborated somewhat on the first story.
COMPLAINT
First story
Luitingh complains that the:
· story omitted two important facts, namely that the:
o UN did not accept the allegations in the SEMG Report; and
o project, which was alleged to be in contravention of the embargo, was in fact
o permissible in terms of the UN’s Practice.
He adds that the:
· headline was misleading; and
· newspaper did not adequately try to verify the allegations levelled against him and his company.
Second story
Luitingh complains that the reporter did not correct the mistakes in the first story (as mentioned above), notwithstanding information provided to him.
Both stories
Luitingh complains that the references to “private army” wrongly suggested that he was involved in illegal activities.
General
Please note that:
· Luitingh does not complain about the content of either story – he accepts that the articles were correct in that they adequately reflected the content of the report that they reported on. This, of course, does not mean that he accepts the content of that report; and
· his complaint does not center so much around what was published (save for the headline), but rather focuses on what the stories omitted to state.
ANALYSIS
First story
Omitting important information
Luitingh complains that the story omitted to state that the:
· UN did not accept the allegations in the SEMG Report; and
· project (which was alleged to be in contravention of the embargo) was in fact permissible in terms of the UN’s Practice.
He argues: “The publications therefore conveyed an inaccurate and unbalanced portrayal” of him and the Puntland Marine Police Force (PMPF), which he trained.
The statements under the two bullets above are the crux of Luitingh’s complaint.
No acceptance of SEMG Report
Independent Newspapers say that Luitingh erroneously concludes that, while the Security Council did not accept the SEMG’s recommendations, it therefore rejected them.
The publications say that this interpretation was flawed as:
· the SEMG’s report was always submitted to the chairman of the Security Council Committee pursuant to the specific resolutions pertaining to this matter;
· the chair accepted this report and then submitted it to the President of the Security Council;
· this report was noted by the Security Council and this was recorded in the resolution;
· the Security Council made various resolutions based on the SEMG’s report, which included:
o condemning flows of weapons and ammunition supplies to and through Somalia and Eritrea;
o deploring all acts of violence, etc., in violation of acceptable international law; and
o requesting enhanced cooperation between interested groups.
The publications also argue that no member state of the UN actively backed or endorsed the SCS operation.
The panel studied Resolution 260 (2012) by the UN Security Council, dated 25 July 2012, and note that the:
· newspaper’s presentation of that document (as argued above) was correct;
· code number for this document was an official one, as it had an “S” in front of the rest of the code (in this case, “S” denoted that it was a Security Council document);
· heading to this document read: “Adopted by the Security Council…” (emphasis added).
We conclude that the newspaper was justified in calling the SEMG’s Report a “UN report”, as a document that was “adopted” by the Security Council becomes an official document (report) of the UN.
Project permissible
Luitingh complains that the project (which was alleged to be in contravention of the embargo as stated/implied in the stories) was in fact permissible in terms of the UN’s Practice.
At the hearing, he argued that the project was legal as it was endorsed by both the governments of the UAE and that of Somalia.
While that may be true (the panel has no grounds to disbelieve this), in terms of Resolution 2060 (and other similar resolutions) of the UN Security Council it is clear that the flow of weapons and ammunition supplies to Somalia were in violation of the Somalia arms embargo pursuant to UN Resolution 1907 (2009).
Luitingh did not bring any relevant UN document to the panel’s attention to substantiate his claim that the UN in fact permitted his actions in Somalia.
Headline misleading
The headline in question read: UN slams SA ‘private army’
o Security firm accused of breaking sanctions, torture
o SA failing in its obligation to clamp down on mercenaries, says report
The panel shall return to the use of the words “private army”. At stake at this stage is the statement that the “UN” had “slammed” the security company.
The argument above whether the UN (Security Council) had accepted the SEMG’s report or not, now becomes relevant.
We note that the main headline did not use the phrase “UN report” (as the story did), but merely referred to the “UN”. The panel submits that it would have been better if the main headline contained both words (“UN” and “report”).
However, we also take into account that:
· a report that was adopted by the Security Council from a UN-appointed Somalia and Eritrea Monitoring Group (SEMG), is indeed the UN in action; and
· the word “report” did appear in the second sub-headline.
Due to the limited space available for the headline, and combined with the arguments above, we conclude that this part of the complaint fails.
No adequate verification
Luitingh says that the reporter phoned him a day before publication, but as he was driving he was not able to comment. He complains that “no further attempt was made to verify the allegations”. On this basis he argues that the newspaper did not adequately try to verify its information with him, and notes that the publication also did not contact his legal representatives. He said that he believed the reporters were biased and that they had given him inadequate time to respond, so he had elected not to do so.
At the hearing, Louw argued that the newspapers were not obliged to get comment from Luitingh as the matter was before the UN Security Council – which meant that it enjoyed qualified privilege (as is the case with matters that are put before Parliament). He cited a finding by a South African court to substantiate his argument.
Powell added that he had tried on numerous occasions to solicit comment from Luitingh, who consistently refused to talk to him (a statement that Luitingh did not deny at the hearing). He said that his newspaper nevertheless tried once more – but yet again, its attempt was fruitless.
The panel finds that the newspaper did contact Luitingh and ask for his comment and that, in addition, they had published comment from a number of other involved parties. Luitingh had it within his power to provide comment and had chosen not to do so.
The second story
Not corrected
Luitingh says that his attorney informed the editor of Independent Newspapers of the legitimacy of the project and that the UN Security Council had not accepted any recommendation by the SEMG Report to act against him. “A copy of the UN Security Council Resolution containing the decisions of the UN, was attached (…with a copy of the letter by the President of the State of Puntland as well as the final Resolution).”
He says that, from this documentation it is clear that the:
· Puntland Government objected to the SEMG actions;
· PMPF was effective in its mandate to eradicate piracy; and
· project was fully transparent, that the international community was informed and that UN notification requirements had been complied with.
Luitingh adds that his attorney responded by email on 28 September to questions posed by Powell, in which it was reiterated that the UN did not find any violation of sanctions or the embargo – yet no correction was published. Instead, the newspapers reported that the UN Security Council did not “immediately” make a formal resolution about the SEMG’s recommendations and that nobody had “thus far” been designated for further action were inaccurate and unfair.
He also says that the publications distorted the facts by not mentioning the “crucial aspect” that the required notifications were provided to the UN.
His attorney concludes: “Even after receipt of the proof that no UN Resolution was contravened, that the President of Puntland endorsed the project, that the project and our client’s involvement was hugely successful, that the UN received proper notification as required, none of these facts were published in the Second Publication.”
The panel accepts that Luitingh and his council were convinced that the second story should have reflected their views (which, for them, meant a correction). However, based on our arguments above, the panel does not believe that such a “correction” would have been appropriate.
Both stories
‘Private army’
Both the headline and the story used the phrase “private army”, and on each occasion it was accompanied by inverted commas.
Luitingh complains that this phrase portrayed an “immense negative image” of him, as a “private army” would have been a contravention of the UN embargo. He argued further that it wrongly suggested that he was involved in illegal activities.
However, the SEMG’s report used this phrase, and the newspaper was therefore justified in using it as well.
FINDING
The complaint is dismissed.
APPEAL
Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Susan Smuts (press representative)
Peter Mann (public representative)
Johan Retief (press ombudsman)