Rights & Democracy
Chapter 4 – The Promotion and Protection of Freedom of Expression in Africa: What Role for the Regional Special Mechanism?
“Let the whole world go to hell—if I have good reasons of closing down any newspaper offices I will do so.”1
Freedom of expression is a fundamental human right guaranteed by numerous international and regional instruments and national constitutions. The majority of African governments have now ratified international and regional treaties in which they pledge to uphold freedom of expression. While there have been some improvements over the last few years in Africa, the above quote is rather revealing, as it comes from the Head of State of the very country that hosts the Secretariat of the African Commission on Human and Peoples’ Rights (the African Commission). It is not surprising then that cases of arbitrary arrests and disappearances of media practitioners, closure of media outlets and adoption of legislation that falls short of recognized standards are still all too common in the region.
Following a brief overview of the main applicable international and regional standards, this chapter describes how the African system for the promotion and protection of human and peoples’ rights has addressed the situation of the right to freedom of expression in Africa. Particular attention is given to the work of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, established by the African Commission in December 2004. The chapter finally explores the relationship between elections, freedom of expression and access to information, demonstrating how this issue has become central to the mandate of the Special Rapporteur.
Freedom of expression and information is guaranteed by the Universal Declaration of Human Rights (Article 19), the International Covenant on Civil and Political Rights (Article 19), the European Convention on Human Rights (Articles 9 and 10), the American Convention on Human Rights (Article 13), the African Charter on Human and Peoples’ Rights (Article 9), as well as other international and regional instruments and national constitutions.
Freedom of expression and information as enshrined in Article 9 of the African Charter is a fundamental individual human right, a cornerstone of democracy and a means of ensuring the enjoyment of other rights guaranteed by the Charter. However, in reality, the African Charter actually provides the weakest formulation of freedom of expression of any major international human rights instruments. Article 9 of the African Charter reads: “(1) Every individual shall have the right to receive information; (2) Every individual shall have the right to express and disseminate his opinions within the law (emphasis added).”2
The African Charter’s protection of freedom of expression hence differs from the protection afforded by other treaties in that it does not explicitly protect the freedom to hold opinions without interference or the right to impart information or to receive opinions and ideas. Moreover, the protection afforded to the right un-der the African Charter has been watered down by the so-called clawback clause—also discussed in Chapter 2—inserted within the same Article.
The phrase “within the law” opens the door, at least theoretically, to its reinterpretation by some states in a manner that unreasonably restricts freedom of expression.3 By contrast, most international human rights conventions contain specific derogation clauses under which certain rights are declared non-derogable un-der all circumstances while precise conditions and legal requirements for permissible derogation are laid out for others, leaving little room for arbitrariness.4
This cautious wording in the African Charter can be explained by the timing and circumstances that characterized its drafting.5 Admittedly though, with the necessary political will, a vague or weakly-worded treaty can be developed or interpreted broadly over time, with a view to rectifying omissions emanating from the drafting process. Unfortunately, in the years following the adoption of the African Charter, such political will to interpret the wording of Article 9 broadly did not appear to be present. Particular attention to the situation of the right to freedom of expression and efforts to strengthen its protection on the continent would only come several years later, in large measure due to the involvement of civil society organizations, notably non-governmental organizations (NGOs).
Freedom of Expression and the African Commission
In view of the limited protection afforded to freedom of expression in the African Charter and the rather marginal role played by the African Commission in the years following its creation in protecting the right, there was an obvious need to strengthen it. As was the case for other rights entrenched in the African Charter, NGOs have played a central role in enhancing the protection of the right to freedom of expression in the regional system. The “Article 19: Global Campaign for Free Expression” as well as other NGOs concerned with freedom of expression have consistently advocated for the inclusion on the African Commission’s agenda of a permanent item on freedom of expression and for the establishment of a special mechanism on the subject.
Over time, the African Commission addressed the right to freedom of expression through a variety of ways, for instance: recommendations made in the context of individual communications (i.e., complaints), through resolutions and declarations, by promoting dialogue with member states during consideration of state reports, and during promotional and fact-finding missions undertaken by Commissioners. Following the eventual recognition by the African Commission and its partners of a lack of continental strategies for the effective protection of the right to freedom of expression, and faced with an increasing number of reports alleging violations of the right received by the Secretariat, the African Commission eventually addressed the issue more systematically.
Specifically, progress was made at its 26th Ordinary Session, when the African Commission decided to hold a seminar on “Freedom of Expression and the African Charter.” Organized in collaboration with ARTICLE 19 in South Africa from November 22 to 25, 2000, the seminar brought together representatives of states party to the African Charter, national human rights institutions, NGOs and the media. Participants examined the nature and content of the right to freedom of expression under Article 9 of the African Charter, reviewed its practical observance on the continent and made recommendations on strategies for enforcement with particular reference to the role of the African Commission.
A series of similar meetings followed, ultimately leading to the adoption by the African Commission at its 32nd Ordinary Session in October 2002 of the Declaration of Principles on Freedom of Expression in Africa (the Declaration). The Declaration is a result of combined efforts by many stakeholders working on freedom of expression, reemphasizing that a vibrant civil society has a crucial role to play in Africa’s regional human rights system.
The Declaration sets out important benchmarks and elaborates on the precise meaning and scope of the guarantees of freedom of expression laid down under Article 9 of the African Charter. In the Declaration, the continent has one of the most progressive documents on freedom of expression, albeit a non-binding one. This has compromised its effectiveness. Its adoption did not end the persecution of journalists, enactment of anti-media laws and other violations of the right to freedom of expression.
At its 33rd Ordinary Session, a Focal Person was appointed by the African Commission to oversee activities relating to the implementation of the Declaration. The Focal Person held a series of consultative meetings with various stakeholders, which would pave the way for the African Commission to appoint one of its members as Special Rapporteur on Freedom of Expression in Africa in 2004.
At its 40th Ordinary Session in November 2006, the African Commission adopted a resolution on the situation of freedom of expression in Africa in which, expressing its concerns over the current situation of the right to freedom of expression on the continent, the African Commission called on member states to “take all necessary measures in order to uphold their obligations under the African Charter” and to “extend their full collaboration with the mandate of the Special Rapporteur on Freedom of Expression in Africa, in order to strengthen the right to freedom of expression on the African continent and work towards the effective implementation of the principles enshrined in the Declaration.”6
Seeking to make the right to freedom of expression effectively binding on African states, civil society organizations recently adopted a resolution for the adoption of an additional protocol to the African Charter on freedom of expression.7 The process is ongoing and has been strongly supported by the Special Rapporteur on Freedom of Expression and Access to Information in Africa.
Special Rapporteur on Freedom of Expression and Access to Information in Africa
The African Commission initially appointed the Special Rapporteur on Freedom of Expression in Africa at its 36th Ordinary Session in December 2004. Commissioner Pansy Tlakula was appointed as Special Rapporteur at the 38th Ordinary Session in December 2005 for two years and was re-appointed at the 42nd Ordinary Session in November 2007, when her mandate was expanded to include access to information.8
The history of the mandate is similar to that of other special mechanisms of the African Commission. Frans Viljoen explains that “ [B]y establishing its first and second Special Rapporteurs, the African Commission went beyond its explicitly defined mandate, as the African Charter does not provide for the establishment of the position of Special Rapporteur. The legal basis for the establishment of the position of Special Rapporteur lies in Article 45.1(a) of the African Charter, which states the following: ‘The function of the Commission shall be to promote human and peoples’ rights and in particular to … undertake studies and researches on African problems in the field of human and peoples’ rights.’”9
Unlike UN Special Rapporteurs, who are independent experts, African Commission Special Rapporteurs are Commissioners appointed with a specific mandate, in some cases without a particular expertise in the areas in which they work.10 This has fuelled criticism and recommendations have been made to appoint independent experts, although there does not seem to be a trend in this direction. That said, the independence of the different Special Mechanisms from the African Commission itself greatly depends on the mandate-holder and his/her interpretation of the mandate. Commissioner Tlakula has been able to conduct her mandate “independently” from her role as Commissioner, striking a good balance between her views as Special Rapporteur and what could be referred to as the “views of the Commission” on certain subject matters that would still appear to be rather sensitive. In brief, the Special Rapporteur does enjoy a certain level of independence but will obviously exercise political judgment and carefully avoid taking any action which could jeopardize her close relationship with and role within the African Commission.
The Special Rapporteur’s terms of reference are directly derived from the resolution establishing her mandate, as can be seen in her so-called Plan of Action, included in her activity report presented to the 40th Ordinary Session.11 In a nutshell, her role is to monitor the situation of freedom of expression and access to information in Africa and report to the African Commission accordingly. This involves monitoring violations of the right to freedom of expression, recommending to the African Commission measures to address the violations and assisting AU member states to review their national media laws and policies with a view to complying with freedom of expression standards in general and the Declaration in particular.
When deciding on the appropriate course of action, the Special Rapporteur must take into account several concerns, including whether there is a pending communication on the same situation before the African Commission. She must clearly identify the objective of her action and determine whether a particular situation would be better addressed by way of public statement, for instance. The Special Rapporteur can also undertake fact-finding missions, although the current Rapporteur has of yet not undertaken any, notably due to a lack of funds.
Part of her mandate is also to take action on behalf of alleged victims of violations of the right to freedom of expression, including by sending “Urgent Appeals” to member states asking for clarifications on reports forwarded to her from reliable sources. As one seasoned observer notes:
Urgent appeals functions outside the rigors of legal formalism, depending on a more informal and quicker process. Lawyers need not be involved, local remedies need not be exhausted, information is submitted not by the victim but by an anonymous source and there usually is less delay. Similar to the formal communications procedure, its scope is however rather restrictive, focusing on individuals.12
Submitting Urgent Appeals is challenging, given difficulties in corroborating reports or a lack of resources to follow up on accusations. Nevertheless, there have been some positive outcomes. Indeed, while none of the Appeals sent by the Special Rapporteur have received any formal response, they have triggered reactions from government officials. This is especially the case during Ordinary Sessions, after the presentation of the Special Rapporteur’s activity reports, which summarize such appeals, and underlines the lack of response from certain states. While this has led to welcome dialogue between the Special Rapporteur and state representatives, it is very rare that promises of providing the Special Rapporteur with written replies are met in practice.13
The Special Rapporteur’s achievements so far includes raising public awareness of her mandate, which highlights, by the same token, the situation of the right to freedom of expression and access to information in Africa. She has also strengthened her network of NGOs and media stakeholders collaborating with her mandate, claiming her place as “regional focal point” in the African system for the promotion and protection of the right to freedom of expression.
The Special Rapporteur has also strengthened her relationship with her UN counterpart, with whom she has discussed possible joint activities, and with her other regional counterparts, with whom she has, for instance, issued joint public statements.
One of the mandate’s greatest achievement to date lies in the recognition of the intrinsic link between elections, freedom of expression and access to information and the importance that these issues take within her mandate, as well as their gradual inclusion on the agenda of the African Commission, which will be addressed in the next section of this chapter.
The Special Rapporteur and the Question of Elections in Africa
Dr. Ndulo recalls that “Democracy involves three central rights: the right to take part in government, the right to vote and to be elected, and the right to equal access to public service” and that “Good governance furthers the protection of human rights at both the international and national levels.” 14 The development of democracy requires the availability and access of a wide range of news and information sources emanating from a plurality of service providers. Unfortunately, the media is still being harassed in Africa, and journalists are often arbitrarily arrested and detained in many African states.
There could be no independent and fair elections without a free media. The right to information is central to seeking accountability of officials and also in exposing otherwise hidden issues to the public in order to encourage democratic debate. Legislation enabling the public and media access to information held by governments and public institutions are therefore essential. There is also a need for countries to review their media laws and practices in order to foster equal and free access by all parties and candidates to the media during elections. Without the free flow of news, information and opinion, the population cannot be adequately informed and cannot therefore exercise its democratic rights. Through the media, citizens are better able to make informed choices before, during and after elections. Free media is simply critical to the survival of democracy in Africa.
Drawing on international covenants and declarations, Article 13 of the African Charter provides that: (1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law; (2) Every citizen shall have the right of equal access to the public service of his country; and (3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
The importance of the right to freedom of expression has also been mentioned in other instruments relevant to the electoral process in Africa. For instance, by adopting the African Union Declaration on the Principles Governing Democratic Elections in Africa in 2002, member states committed themselves to safeguarding the human and civil liberties of all citizens, including the freedom of movement, assembly, association, expression, and campaigning as well as access to the media on the part of all stakeholders during electoral processes.15 Member states have also reaffirmed several rights and obligations under which democratic elections shall be conducted.16
Another important development is the adoption of the African Charter on Democracy, Elections and Governance by the Eighth Ordinary Session of The Assembly of Heads of State and Government of the African Union (AHG), in Addis Ababa, Ethiopia on January 30, 2007.17 This Charter emphasizes the significance of good governance, popular participation, the rule of law and human rights and aims to enhance the relevant Declarations and Decisions of the OAU/AU, including the above-mentioned Declaration on Principles Governing Democratic Elections in Africa.
In view of the above, the current Special Rapporteur has clearly indicated an interest in pursuing her mandate to protect and promote freedom of expression in Africa, in particular, its link to free and fair elections. This interest in part draws on her full-time job as the Chief Electoral Officer of the Independent Electoral Commission of South Africa. It is clear that her expertise in the electoral process has helped her to appreciate the need to develop strategies to bring different stakeholders together and consolidate the existing standards relevant to this important process. Following her reappointment and based on the work she did during her previous term, she has identified three major and highly interrelated issues on which she plans to focus for the duration of her new term as Special Rapporteur: the relationship between elections, freedom of expression and access to information; the need to enact access to information legislation; and the issue of broadcasting reforms.
To this end, the Special Rapporteur co-hosted a workshop on “Elections, Freedom of Expression and Information in the Southern African Development Community (SADC)” with the Electoral Commissions Forum of SADC Countries in Luanda, Angola, on August 20 and 21, 2007.18 The theme was a reflection of the imperative to explore how electoral commissions interface with media stakeholders in the conducting of elections in the SADC region. A total of 28 participants representing media stakeholders and 29 delegates representing electoral commissions from SADC countries attended the workshop. The topics discussed included media coverage of elections, freedom of expression and elections, electoral conflict management, access to information and elections as well as the relationship between media practitioners and political parties.
The workshop emphasized some very important points, including the fact that the relationship between elections, freedom of expression and access to information raises a myriad of complex questions. This further underlines the need for involvement of all stakeholders and that, while freedom of expression is indeed a fundamental human right, it also entails certain responsibilities.19 Media outlets play an important role, especially in election periods, and therefore must be aware of their duties and follow a strict code of conduct during elections. The very central role played by the media in delivering free and fair elections was reemphasized, as was the fact that political parties cannot do without the media, hence the need for an on-going partnership among all stakeholders.20
Building on this first and successful sub-regional meeting, the Special Rapporteur intends to organize similar workshops in the other regions of the continent, which would ultimately culminate in a continental conference on the topic. In the long run, the aim is to consolidate existing regional norms that address the freedom of expression, free media, and elections.
Two recent examples reinforce the need to seriously tackle these relationships, namely, the recent elections in Kenya and Zimbabwe. The media in Kenya was harshly criticized for its role in the election in December 2007, in particular for exercising a form of self-censorship.21 The first and now second round of elections in Zimbabwe, which are still going on as this chapter goes to press, also provide clear ground for further analysis in this regard.22
This chapter has traced the creation and entrenchment of a specific human right in the African regional human rights system, namely the right to freedom of expression. Despite hesitant beginnings, what emerges is a right that has progressively been better defined and expanded to include other elements, and as a result, is better protected. The key role of NGOs, the African Commission, and the regional Special Rapporteur were highlighted. While freedom of expression is not yet a reality for many individuals in Africa, the African human rights system as a whole is being strengthened through the committed actions of such individuals, organizations, and institutions.
As always, the two main challenges in implementing this system’s standards are political will and resources. states need to demonstrate their commitment to some of the Declarations cited previously. Furthermore, as argued in other chapters of this publication, African states must also be willing to submit themselves to the jurisdiction of Africa’s newest regional human rights institution, the African Court. With respect to resources, while the African Commission has recently received an increase in its core funding from the African Union, the Special Rapporteur on Freedom of Expression currently does not have a full-time jurist at the African Commission assigned to this mandate. The same holds true for most of the special mechanisms at the African Commission. Under such conditions, it is difficult for the Rapporteur and her colleagues to play leadership roles in their mandates, and in her case, promoting and protecting freedom of expression and access to information in Africa.
1- Dr. Yahya Jammeh, President of The Republic of The Gambia, after his re-election on September 22, 2006, when asked about reports by international media watchdogs alleging widespread abuse against journalists in Gambia, report available at www.irinnews.org/report.aspx?ReportId=61178: Commonwealth cries foul as Jammeh wins landslide victory.
2- African Commission on Human and Peoples’ Rights, African Charter of Human and Peoples’ Rights, art. 9: available at www.achpr.org/english/_info/charter_en.html
3- Welch J., Claude E. 1998. The African Charter and Freedom of Expression in Africa. 4 Buff. Hum. Rts. L. Rev. 103, 113, citing: Gittleman, Richard, 1984. The Banjul Charter on Human and People’s Rights: A Legal Analysis. In Human Rights and Development in Africa 152, 158-62 (Claude E. Welch, Jr. & Ronald I. Meltzer eds.).
4- In Art. 19.3, the ICCPR speaks of “certain restrictions,” adding “but these shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or public health or morals.” See also, the American Convention on Human Rights, Nov. 22, 1969, Art. 27, 1144 U.N.T.S. 123, O.A.S.T.S. No. 36 (1970) (entered into force July 18, 1978), governing when states may permissibly suspend the guarantees of the Convention.
5– See Welch supra note 2 pp. 114-115.
6- Resolution on the Situation of Freedom of Expression in Africa, adopted in Banjul, The Gambia, November 29, 2006, available at www.achpr.org/english/_info/free_exp_res2.html.
7- See www.pambazuka.org/actionalerts/images/uploads/COMMUNIQUE_Free_Expression.doc. The Resolution was adopted at a civil society conference on strengthening freedom of expression in Africa, held in Accra, Ghana, on June 25-26, 2007; the conference was one of several media and civil society activities organized ahead of the 9th ordinary session of the Council of the African Union.
8- See ACHPR/Res.122 (XXXXII) 07: Resolution on the Expansion of the Mandate and Reappointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, adopted in Brazzaville, The Republic of Congo, November 28, 2007. The amendment of the title of the Special Rapporteur was made in a bid to confirm that the right to access to information was indeed part of her mandate from the very beginning and had been treated as such.
9- Viljoen, Frans. 2005. The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities, HRQ 27 125-171, The Johns Hopkins University Press, p. 130.
10- Beyani, Chaloka. 2007. Recent Developments in the African Human Rights System 2004-2006, 7 Hum. Rts. L. Rev. 582, p. 588.
11- Activity Report of the Special Rapporteur on Freedom of Expression in Africa presented at the 40th Ordinary Session of the African Commission in Banjul, Gambia, in November 2006. Report available at www.achpr.org/english/_info/free_exp_inter.html.
12- See Viljoen, supra note 8, p. 162.
13- On a related topic, the lack of demonstrable impact of the work of the Special Rapporteur in Gambia is particularly disappointing. Given that the Secretariat is based in Banjul, one would assume that access to information and government officials would be easier. Theoretically, this would enable continuous dialogue with the government, sustained follow up and implementation. 14 Ndulo, Muna. 1998-1999. The Democratization Process and Structural Adjustment in Africa. Symposium: Globalization and Governance: The prospects for Democracy Part III: Globalization and Empire, 10 Ind. J. Global Legal Stud. 315, at p. 334-335.
15- Assembly of the Heads of Government of the African Union (AHG) /Decl.1 (XXXVIII), 2002, at par. III.
16- AHG/Decl.1 (XXXVIII), 2002, at par. IV. The New Partnership for Africa’s Development (NEPAD) further includes a Declaration on Democracy, Political, Economic and Corporate Governance, AHG/235(XXXVIII) Annex I, which commits African governments, among other things, to promoting and protecting democracy and human rights in their respective countries and regions, by developing clear standards of accountability, transparency and participative governance at the national and subnational levels.
17- The text of the Charter is available at www.africa-union.org/root/au/Documents/Treaties/text/ Charter%20on%20Democracy.pdf. As of January 29, 2008, the Charter had been signed by 17 states but had not yet been ratified (www.africa-union.org/root/au/Documents/Treaties/ list/Charter_on_Democracy_and_Governance.pdf). In her Activity Report presented to the 42nd Ordinary Session of the African Commission, the Special Rapporteur welcomed the adoption of this Charter on Democracy, noting that there had been no ratification yet and that the Charter needed 15 ratifications to enter into force.
18- The Electoral Commissions Forum of SADC Countries (ECF) is an autonomous body of Electoral Commissions of SADC countries. It was launched in July 1998 with the main aim of encouraging cooperation and support on electoral issues among member countries. More information is available at www.sadc-ecf.org/.
19- Maphanyane, Modise. 2007. Political Parties and Media in Elections. Paper presented at the Regional Workshop held during the 9th Annual general conference of the Electoral Commissions Forum of SADC Countries, August 20-21, in Luanda, Angola.
20- Musavengana, Takawira. 2007. Media and Political Parties: The Achilles Heel of en Enduring Democracy. Paper presented at the Regional Workshop held during the 9th Annual general conference of the Electoral Commissions Forum of SADC Countries, August 20-21, in Luanda, Angola.
21- See for example, Kenyan media under pressure: The Nairobi Round Table Recommendations, published by International Media Support, February 12, 2008. Available at www.gurtong.org/ResourceCenter/documents/Reports/kenya-rec-s-media.pdf and How far to go? Kenya’s media caught in the turmoil of a failed election. Available at www.article19.org/pdfs/publications/kenya-how-far-to-go.pdf. 22 The African Commission, meeting at its 42nd Ordinary Session, in Brazzaville, Republic of Congo, adopted a Resolution on freedom of expression and the upcoming elections in Zimbabwe, reaffirming the importance of freedom of expression, encouraging the state to create conditions conducive to free, fair and credible elections and ensure that contesting parties and candidates for elections are given equitable access to state-controlled media.