Right to Free Speech

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Re-Invigorating Freedom of Expression in The Gambia Post-Jammeh

by Aaron Olaniyi Salau, PhD in Public Law (UCT, South Africa), LLM, LLB (OAU, Nigeria), B L (Lagos, Nigeria), Lecturer in Laws, Dept. of Jurisprudence & International Law, Faculty of Law, Olabisi Onabanjo University, Ago Iwoye, Nigeria, email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Abstract

The human rights atmosphere in The Gambia has shown encouraging signs of improvement since the incumbent President Barrow assumed office in February 2017. But strengthening freedom of expression particularly in a post-Jammeh Gambia is imperative considering the denial of political participation generally and the chilling effect on freedom of expression of prosecutions for sedition and criminal defamation, physical intimidation, censorship unleashed on Gambian journalists and human rights defenders in an apparent bid for self-perpetuation during His Excellency, President Professor Sheikh Dr. Yahya Jammeh’s brutal 22-year rule. Accordingly, this paper argues that fulfilment of international human rights obligations and real commitment to the ongoing democratization process requires the new Gambian Government to re-visit the security sector, especially colonial and military-styled laws such as the National Intelligence Decree 1995 (No. 45 1995) and Official Secrets Act 1922.[1] These laws grant wide discretionary powers that motivate the executive to stifle political dissent under vague invocations of ‘national security’. Moreover, there has been no authoritative pronouncement on the constitutional standards of limitation of free speech pertaining to sedition, criminal defamation and ‘false news’ prosecutions by The Gambia’s Supreme Court. So, the interpretative approach to constitutional provisions in The Gambia is not robust as it should be. The foregoing is predicated on the analysis of human rights treaties, especially those negotiated under the auspices of the African Union ratified by The Gambia, The Gambia’s Constitution, statutes and official practices on the interplay between freedom of expression and national security. The prognosis is that reform of existing secrecy statutes incorporating a redefinition of ‘national security’ and enactment of access to information law, together with a progressive judicial interpretation of the Constitution and laws will ensure that a transparent, accountable and participatory democracy can take foothold in The Gambia.

Introduction

The human rights atmosphere in The Gambia has shown encouraging signs of improvement since the forced exit of President Professor Sheikh Dr. Yahya Jammeh and the incumbent, President Barrow, assumed office on February 2017.[2] But the strengthening of human rights, particularly the right to freedom of expression in a post-Jammeh Gambia is imperative, considering the manner of prosecutions for criminal defamation and sedition, physical intimidation, censorship, etc., unleashed on Gambian citizens, foreigners, journalists and human rights defenders in an apparent bid for self-perpetuation and regime security during the former President’s brutal 22-year rule. This paper argues that the capacity for thought and its expression are innate human characteristics that are indispensable for the development of individual personality, for inter-personal relationships and participation in social and political affairs of one’s society. Hence, primacy has been accorded to freedom of expression or free speech, including freedom of the press, not only as a fundamental right, but an irreducible minimum for a functioning democracy. Democracy as a political system based on popular consent is strengthened by informed public scrutiny of official conduct and participation in the decision-making processes and through the press’ dissemination of information that is vital to hold governments accountable to citizens. Freedom of expression is also crucial for making political choices that democracy throws up, to protect one’s dignity and enforce other democratic rights. Most importantly, freedom of expression aids truth-seeking, especially during a period of political transition from dictatorship to democracy, which exposes human rights violations, and promotes accountability and national reconciliation.[3]                   

Freedom of expression and the press is guaranteed internationally,[4] in Article 9 of the African Charter on Human and Peoples’ Rights, 1981,[5] in other regional human rights instruments,[6] and in national laws and constitutions such as the Constitution of the Republic of The Gambia, 1997[7] (the 1997 Constitution) (as amended). However, several criminal law statutes in the Gambia impose undue restrictions on individual freedom and particularly of the press to scrutinize official conduct and express opinions on matters of public interest.[8] Many of these restrictions have also been abused by security agencies to cast a wider net for ‘national security’. These statutes are extremely vague, and confer extraordinarily broad powers on executive bodies saddled with the responsibility for public security, without setting the parameters for their application. The key issues relate to what constitutes ‘national security’ in Gambian law and when expression may be restricted in the national security interests. Moreover, there has been no authoritative pronouncement on the constitutional standard of limitation of free speech pertaining to sedition, criminal defamation and ‘false news’ prosecutions by The Gambia’s Supreme Court.[9] So the interpretative approach to constitutional provision in The Gambia is not quite robust as it should be. Notwithstanding, international human rights bodies, African regional and sub-regional courts have upheld the right to freely express oneself without the fear of criminal sanctions. Consequently, this paper aims to interrogate the interplay between freedom of expression and national security in laws of The Gambia starting with this introduction. Part II then conceptualizes the freedom of expression rationales; part III reviews international standards for freedom of expression and national security limitations thereto, while part IV examines The Gambia’s legal frameworks on the interplay of freedom of expression and national security. Part IV concludes with recommendations for law reforms.

Freedom of Expression - Irreducible Minimum of a Functioning Democracy

Freedom of expression is foundational to a democracy which predicates the authority of government on the freely given consent of the people and without which the exercise of political power is illegitimate. Zen-Zenvovich and the social contract theorists who posit that freedom of expression predates and underlies liberal democracy are also in tandem as to the human communication’s innate value. As Zeno-Zencovich contends, the sustenance of the freedom of expression, and all its constituent aspects, is dependent on information, ideas and knowledge that are discoverable through human intellect.[10] This makes for a healthy socialisation process and ultimately an open society. Moreover, political liberty is to be found where person can lay whatever sentiments or where political speech, that is, the exchange of information and ideas pertaining to the socio-economic and political realities of a polity,[11] is unrestrained. The foregoing is true of democracy because it envisions a society based on liberty, equality and governance under the rule of law and a constitution. Moreover, a democratic constitution elicits a social compact between government and the people; it dictates the basic structure and powers of government, rights and duties of citizenship and basic responsibilities of government to the people. But as argued throughout, citizens can only make democracy real and participate freely therein if they are well-informed. This can only materialize through constant exchange of information and ideas that public discussions make possible.[12] Freedom of expression or free speech is thus the cornerstone of a strong democracy that respects broadmindedness, tolerance and human dignity. But to remain effective, democracies must maintain internal and external security and deals with existential threats to itself core values.[13]                                                                           

National security is the quintessential constitutional function of government;[14] which extends beyond the defence of territorial integrity, sovereignty and maintenance of internal order to social justice and basic welfare of citizens.[15] The processes of national security should therefore be people-oriented. But national security protection produces a dilemma, and a conflict of interest for democracy: it thrives on secrecy which inhibits free debate and provides a breeding ground for abuse of power. Moreover, protection of national security as a legitimate goal must be balanced against societal goals of freedom of expression.[16] Thus, international human rights norms dictate that restrictions on freedom of expression pertaining to national security must cumulatively satisfy a strict test of justification: legality, legitimacy and proportionality.[17]

International and Regional Standards of Freedom of Expression

Freedom of expression and of the press, is enshrined internationally in Article 19 of the Universal Declaration of Human Rights (UDHR) 1948,[18] and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) 1966,[19] but have, in different cultural and historical contexts, been undergoing similarly confirmatory interpretations under Article 10(1) of the European Charter of Rights and Fundamental Freedoms (ECHR),[20] Article 9[21] of the African Charter on Human and Peoples’ Rights (ACHPR) 1981,[22] and other multilateral human rights instruments.[23] Moreover, jurisprudential and other analysis by authoritative bodies and non-binding soft law – international declarations and statements – that espouse the meaning, nature and scope of freedom of expression are currently ongoing.                                           

The European Court of Human Rights (ECtHR) has recognized the key role of freedom of expression:

Freedom of expression constitutes one of the essential foundations of ... a democratic society, one of the basic conditions for its progress and for the development of every man. ... it is applicable not only to “information” or “ideas” that are favourably received ... but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society.”[24]

Similarly, the Inter-American Court of Human Rights, in a challenge to the constitutionality of a mandatory licencing system for journalists, stated that “[f]reedom of expression is a cornerstone upon which the very existence of a democratic society rests”.[25]                                                                                                

As the African Commission on Human and Peoples’ Rights[26] noted with respect to Article 9 of the ACHPR:

This Article reflects the fact that freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of the public affairs of his country.[27]

In another vein, the Commission had remarked:

The intimidation and arrest or detention of journalists for articles published and questions asked deprives not only the journalists of their rights to freely express and disseminate their opinions, but also the public, of the right to information. This action is clearly a breach of the provisions of article 9 of the Charter.[28]

Furthermore, the African Commission has interpreted rights including freedom of expression as creating at least four levels of duties – “the duty to respect, protect, promote, and fulfil …” – “entail[ing] a combination of negative and positive duties”.[29] First, the duty to respect entails non-interference with rights.[30] Second, the duty to protect requires taking of appropriate measures to prevent rights’ violation and effectively remedy every interference.[31] Third, the duty to promote requires the facilitation of rights' enjoyment by relevant means including provision of infrastructures.[32] Fourth, the obligation to fulfil implies the actualization of rights by the direct provision of basic needs and services.[33] Similarly, the African Court on Human and Peoples’ Rights (African Court),[34] its incipient, but highly impactful jurisprudence, has admirably expanded the scope of freedom of expression. In The Beneficiaries of the Late Norbert Zongo et al v Burkina Faso,[35] the African Court held that freedom of expression is instrumental to access to justice[36] and owes a positive obligation to remedy the infringement of the right by State and non-State actors.[37] The Court, in Konaté v Burkina Faso,[38] held that there should be lesser interference with criticisms of public officials; hence, criminal sanctions for publication of information critical of public officials unreasonably infringe free speech.[39] The impugned provisions of Burkina Faso’s Information and Penal Codes[40] which imposed criminal sanctions against freedom of expression were declared illegal and contrary to the spirit of Article 9 of the ACHPR, and international law.                                

Recently, in a cased filed by the Federation of African Journalists in December 2015 along with four Gambian journalists, two of whom had been tortured by the National Intelligence Agency during the regime of former President Yahya Jammeh,[41] the sub-regional Economic Community of West African States (ECOWAS) Court of Justice (ECJ) on 14th February 2018 struck down laws on sedition, criminal defamation, false publication on the internet and broadcasting as unlawful infringements of freedom of expression in The Gambia.[42] This paper now engages in an analysis of national security restrictions on freedom of expression as dealt with by human rights bodies established under the auspices of the African Union.[43]

Freedom of Expression and National Security Restriction        

The African Commission has drawn from international law[44] to demonstrate through its jurisprudence and soft laws[45] that freedom of expression may not be restricted for national security concerns except as provided by law,[46] the restriction serves a legitimate interest and is necessary in a democratic society.[47] A summary of the African Commission’s evolutionary jurisprudence shows that “within the law” only accommodates national law that conforms to international standards and does not allow African states to evade their Charter obligations[48] or adopt limiting laws inconsistent with their Charter obligations.[49] Second, a restrictive measure must serve a legitimate public interest. The Commission has further enjoined states not to conflate their national security with such interests as public order, public safety and civil security or to excuse gross violations of people’s rights in the interests of national security.[50] Third, “necessity” relates to the concern for proportionality between the extent of the limitation measured against the nature of right involved. In Media Rights Agenda v Nigeria,[51] the Commission pronounced that barring the publication of information that creates a real danger to national security, the prohibition of criticisms of official policy or opinions deemed insulting to government violates Article 9(2) and is non-compliant with Article 27(2) of the ACHPR.[52] It explained further:

“The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained”.[53]

According to the African Commission in John D. Ouko v Kenya,[54] arbitrary arrests and detention of journalists by security agents to intimidate them to desist from criticizing Kenyan government officials breached Article 9 of the ACHPR. Rather, the affected government official ought to have instituted an action for defamation. Ultimately, State-parties are expected to abide with their human rights obligations, including the African Commission and African Court’s recommendations, and adopt relevant laws or amend existing domestic laws in compliance with their decisions.

Domestic Application of International Human Rights Norms: The Case of The Gambia

There is need to query the relevance of international human norms in developing national human rights jurisprudence in The Gambia considering relevant constitutional provisions. The question is whether the provisions import a narrow or wider interpretation:

Depending on their status in a national system and applicable constitutional provisions, ‘international norms [have been] applied … [either] as "enforceable rights" … [or] as "an aid to the construction of an enactment".[55] According to Viljoen,

International law can be incorporated into local legal systems in one of two ways: by explicit reference, or through reception. Explicit reference entails the enactment by name, as part of domestic legislation, of an international agreement. Reception takes place if the provisions of an international agreement are reproduced in national legislation, or if national legislation is amended or repealed to conform to international norms, without explicit reference being made to the source of these norms.[56]

But pertaining to State-parties to the African Charter, African scholars agree that irrespective of constitutional strictures, Article 1 thereof imposes on them the duty to "recognize" and "adopt legislative and other measures to give effect" to the rights and freedoms in the Charter.[57] The Gambia has signed and ratified most treaties negotiated under the auspices of the African Union such as the African Charter, ICCPR, African Women Protocol (legislated into Gambian law as Act No. 12 of 2010), Convention on the Rights of the Child (CRC) (domesticated on 2 August 2005), the Revised ECOWAS Treaty, and the 2nd Optional Protocol to the ICCPR.[58] Interestingly, the1997 Constitution guarantees civil, political rights, socio-economic and cultural rights,[59] and empowers the legislature to legislate on rights inherent in a democracy for safeguarding human dignity though not expressly provided for.[60] At the same time, the Constitution provides for courts to be ‘guided’ by the constitution in interpreting guaranteed rights. However, in theory, the relationship between Gambian domestic laws – especially the Constitution – vis-a-vis international law is fluid considering that relevant constitutional provisions are not a model of clarity. For instance, the Constitution provides that:

The Gambia shall not-

'enter into any engagement with any other country which causes it to lose its sovereignty without the matter first being put to a referendum and passed by such majority as may be prescribed by an Act of the National assembly;'[61]

Again, the non-binding section 219(d) of the Constitution states:

The State shall endeavour to ensure that in international relations it:

(d) is guided by the principle and goals of international and regional organisations of which The Gambia is a signatory.

By prima facie reading of sections 79(2)(a) and 219(d) above in addition to the principle of constitutional supremacy established under section 4 of the 1997 Constitution, it may be argued that The Gambia’s sovereignty is unaffected by its human rights obligations. But Senghor has argued based on section 219 above, Sabally v Inspector-General of Police & Others (Sabally)[62] and Gambian State practice, the country follows the ‘dualist’ tradition, notwithstanding the absence of clear constitutional provisions.[63] But the legal position adopted in this paper is stated in Attorney General v Dow,[64] to the effect that signatory or ratifying States like The Gambia may not repudiate their obligations based on non-domestication of human rights treaties according to their constitutions. Constitutional construction should be generous and meet ‘the just demands’ of a society based on human dignity unless by clear and unambiguous words a contrary interpretation is compelling.[65] Again, pending parliamentary approval, the provisions of international conventions should be used as aid to statutory interpretation. Moreover, the fact that The Gambia, or any African country for that matter, has not passed specific legislation to give effect to the African Charter or any international treaty cannot be relied upon. Account must be taken of the African Charter in interpreting the fundamental human rights provisions of the Constitution.[66]

The Gambia’s Freedom of Expression Framework

The 1997 Constitution of The Gambia[67] has extensive provisions that guarantee free speech and press freedom. Section 25 provides:

'Every person shall have the right to –

(a) freedom of speech and expression, which shall include freedom of the press and other media;'   

The provision encompasses a right to seek ’knowledge and information through the media’,[68] freedom of the press to disseminate and the right of individuals to receive information of public interest which are vital to the smooth function of a democracy. Moreover, the fact that privately-owned and independent news media have proliferated in The Gambia is a testimony to the high esteem to which media practitioners hold their sacred duty as the watchdog of democracy.[69] However, since 2004, legal and extra-legal measures renewed its rate of attacks, harassment, intimidation and dehumanization on journalists, media practitioners, and persons critical of the government.[70] Ndombana had previously observed the trend:

In The Gambia, which hosts the African Human Rights Commission, there is growing clampdown on the freedom of expression, including arbitrary arrest and detention, expulsion or threats of' violence against journalists and other media practitioners.[71]

Indeed, section 25 sub-paragraph (4) of the 1977 Constitution qualifies freedom of expression in the following terms:

'The freedoms referred to in subsections (1) and (2) shall be exercised subject to the law of The Gambia in so far as that law imposes reasonable restrictions on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court.'

Section 17(1) of the 1997 Constitution provides for the responsibility of the Government to respect and uphold the rights and freedoms guaranteed, as follows:

'The fundamental human rights and freedoms enshrinedin this Chapter [Chapter IV: Protection of Fundamental Rights and Freedoms] shall be respected and upheld by all organs of the Executive and its agencies, the Legislature and, where applicable to them, by all natural and legal persons in The Gambia, and shall be enforceable by the Courts in accordance with this Constitution.'[72]

Furthermore, sections 207 and 209 – 210, Chapter XIX of the Constitution provide:

207 (1)The freedom and independence of the press and other information media are hereby guaranteed.

(2) An Act of the National Assembly may make provisions for the establishment of the press and other information media.

(3) The press and other information media shall at all times be free to uphold the principles, provisions and objectives of this Constitution, and the responsibility and accountability of the Government to the people of The Gambia.

209 The provisions of sections 207 and 208 are subject to laws which are reasonably required in a democratic society in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of others.

210 An Act of the National Assembly shall within one year of the coming into force of this Constitution make provision for the establishment of a National Media Commission to establish a code of conduct for the media of mass communication and information and to ensure the impartiality, independence and professionalism of the media which is necessary in a democratic society.[73]

Interestingly, Chapter XIII, Part II, section191(1) and (2) of the Constitution[74] validates the establishment of “a National Intelligence Agency which shall be under the command of the President” and which Agency shall, subject to the provisions Constitution, “shall be governed by the National intelligence Agency Decree, 1995”. Thus, sections 25(4), 209 and 191(1) and (2) of the Constitution presumably validate several statues that severely restrict freedom of expression in The Gambia for reasons of national security, defence, public safety and public interests amongst others. Thus, the State may rely on those articles to assert the constitutionality of the OSA Act 1922 (as amended by Official Secrets (Amendment) Act 2008) and the NIA Decree 1995[75] – two examples of statues which impose the most severe restrictions on freedom of expression, and deny citizens their participatory rights in governance. It was originally promulgated to checkmate mutiny in the military. Beyond this however, national security has no precise meaning in Gambian law,[76] and it has not helped that the NIA Act broadly confers power on the NIA to limit free speech in the interest of national security without clearly specifying the objective test of limitation. Consequently, national security has been broadly abused in the Gambia; it has fostered secrecy around government activities and to intimidate the press and curtail civil liberties generally.[77] Particularly, the NIA Act grants wide discretionary powers of arrest, detention and interception of communications to public officials. These were abused in matters unrelated to the security of the Gambia.[78] The Official Secrets Act hampers the press in performance of its watchdog functions because it criminalizes the unauthorized publication of government information ‘deemed’ classified. Contrary to practices in modern democracies, NIA operatives exercise wide discretionary powers of arrest and detention for ordinary criminal offences.[79]                                               

Similarly, the National Media Commission Act 2002 as amended by the National Media Commission (Amendment) Act 2003 (now repealed), established a National Media Commission to regulate inter alia, the registration of media practitioners and organisations and allocate licences.[80] The law provided for sanctions such as the banning of media houses for operating contrary to the code of conduct set established by the Commission. Under the law journalists could be forced to disclose confidential sources of official information published by them without government authorisation[81] and criminalised the publication of false news.[82] Sections 51 and 52 of the Criminal Code deal with seditious intention and offences conviction for which carry heavy imprisonment terms while both sections 178 – 179 and 181A[83] of the Criminal Code punish criminal defamation and false publication respectively. Essentially therefore, freedom of expression is observed more in breach than in observance. According to Freedom House:

Article 25 of the constitution provides for freedoms of speech, expression, and the press, but the government does not respect these rights in practice. Defamation and sedition are criminal offenses. The Information and Communications Act was amended in 2013 to introduce a 15-year prison term and a fine of 3 million dalasi ($70,000) for anyone convicted of using the internet to spread false news, make derogatory statements, incite dissatisfaction, or instigate violence against the government or public officials. The Criminal Code (Amendment) Act of 2013 has also been used to undermine freedom of expression. The Indemnity (Amendment) Act of 2001, which gives the president discretion to forgo prosecuting security forces, discourages victims of human rights violations, including journalists, from seeking justice.[84]

The following are evidences abound of inhuman and degrading treatment and other indignities meted out to journalists and media practitioners in the Jammeh era namely,

  • the unresolved murder of former editor of the Point newspaper, Deyda Hydara;
  • the case of journalist Chief Ebrimah Manneh, who was arrested in 2006 by state security agents and has since been missing;
  • Musa Saidykhan, an exiled journalist, who in 2006 was held by the government for three weeks and allegedly tortured;
  • the July 2015 arrest, detention incommunicado of Alagie Abdoulie Ceesay, manager of Taranga FM by suspected NIA operatives, his subsequent charge with seditious and publishing of false news, and prison remand.[85]

National Security Limits of Free Speech:  The Gambia’s Constitutional Standard

The exercise of freedom of expression, including press freedom, may be restricted on national security grounds based on two concurrent standards in the 1997 Constitution, namely:

  1. Under section209, by “laws which are reasonably required in a democratic society in the interest of national security...” and
  2. In terms of section 25(4), “subject to the law of The Gambia …that law imposes reasonable restrictions … which are necessary in a democratic society and are required in the interests of … national security …”[86]

Though the above provisions qualify freedom of expression, they are not explicit as to the conditions in terms of which restrictions will be “reasonably required”, “necessary in a democratic society” or “reasonable”.[87] The test of whether laws are “reasonably required” or “reasonable” and “necessary in a democratic society” may be adapted from the jurisprudential analysis carried out by African Commission and the African Court have analysed the three-part test which restrictions on the exercise of freedom of expression must undergo[88] came handy. Hence, restrictions based on national security concerns must be prescribed by law. Such a law must give adequate notice of conduct prohibited, and must not confer undue discretion on the executive as to its implementation. Additionally, the restriction must serve a legitimate national security interest and not cover up official improprieties, incompetence or human rights violations. Lastly, the restrictive measure must be necessary and not disproportionate to interest sought to be protected, nor excessive such as criminal sanctions meant to clamp down on freedom of expression.

Conclusion

This paper has analysed the crises of freedom of expression and press freedom within the context of former president, Yahyah Jammeh’s iron-fisted rule in The Gambia, and the inhuman and degrading treatment unleashed on media practitioners and other dissenting voices based on vague assertions of ‘national security’ ostensibly to perpetuate his regime in power. Considering the vital importance of the right to freedom of expression as the cornerstone of a free and democratic society, it is imperative that The Gambia fulfils its international human rights obligation to protect, respect, promote and fulfil the right in all ramifications. It is hereby recommended that the OSA 1922 and the NID 1995 and sedition, criminal defamation and false news provisions in the Criminal Code[89] and other laws that have secrecy provisions must be abrogated, and a new National Security and Intelligence Agencies Act be enacted according to ‘good democratic practices’. There is also need to re-invigorate section 25 of the Gambian Constitution 1997[90] and arm the press through the enactment of an access to information statute. Furthermore, the Gambia should obey previous ECOWAS Court decisions in favour of journalists such as late Deyda Hydara, Chief Ebrima Manneh and Musa Saidykhan.[91] Ultimately, Gambian judges and other judicial officers should aim at a progressive constitutional interpretation which expands rather than constrain human rights.

Footnotes

[1] Cap. 17.01 Laws of The Gambia 1990.

[2]Human Rights Watch World Report 2018, ‘Gambia Events of 2017’ <https://www.hrw.org/world-report/2018/country-chapters/gambia> accessed 24 February 2018.

[3] Working Group on Enforced or Involuntary Disappearances, ‘General Comment on the Right to the Truth in Relation to Enforced Disappearances’ <http://www.ohchr.org/Documents/Issues/Disappearances/GC-right_to_the_truth.pdf> accessed 22 March 2018 (Working Group on Enforced Disappearances). Also, the Truth, Reconciliation and Reparations Commission established in 2017 is expected to bring former operatives of the NIA (now State Intelligence Services) to book by investigating atrocities of the Jammeh regime.

[4](Text to n 18).

[5](Text to n 22).

[6](Text to n 23).

[7]Adopted on 8 August 1996, entered into force 16 January 1997 <http://www.wipo.int/wipolex/en/text.jsp?file_id=221243> accessed 25 January 2018.

[8]Fatou Camara, the president’s former press secretary, fled the country in 2013 after being charged for “spreading false news and publication of false news with intent to tarnish the image of the president.”

[9]International Bar Association Human Rights Institute, ‘The Gambia: Freedom of Expression on Trial’ (IBA 2010) <https://www.ibanet.org> accessed 25 February 2018 (analyzing the trial based on indictment dated 9 July 2009 against 7 journalists filed at the High Court of Banjul in Suit No. HC/293/09/CR/062/AO The State v Ebrima Sawaneh, Pap Saine, Sarata Jabbi, Dibba, Pa Modou Faal, Abubacarr Saidy Khan, Sam Sarr, Bai Emil Touray for conspiracy to publish seditious publication contrary to section 386 of the Criminal Code Cap. 10 Vol. III Laws of the Gambia 1990, publishing seditious publication contrary to section 51 (1) (a) read together with section 52(1)(c) of the Criminal Code Cap. 10 Vol. III Law of the Gambia 1990, Criminal Defamation contrary to section 178 and punishable under section 34 of the Criminal Code Cap. 10 Vol. III Laws of The Gambia 1990. The offences were allegedly committed with intent to bring the President and Government into disrepute through a supposed innuendo published in a newspaper to the effect that Gambia’s President, Dr. Jammeh and his Government were complicit in the death of one Deyda Hydara.

[10]Vincenzo Zeno-Zencovich, Freedom of Expression: a Critical and Comparative Analysis (Routledge-Cavendish 2008).

[11]Campbell v MGN Limited [2004] UKHL 22, [2004] 2 AC 457 (HL).

[12]New York Times v Sullivan 376 US 254 (1964) (Brennan J) (stating that democracy is based on ‘uninhibited, robust and wide-open’ public debate and scrutiny of government actions).

[13]William O Walker, National Security and Core American Values (Cambridge University Press 2009).

[14]Patrick Birkinshaw, ‘Freedom of Information and Openness: Fundamental Human Rights?’ Administrative Law Review (2006) 58.

[15]Tunji Olagunju, ‘Notes on The 1999 Constitution And National Security’ in I A Ayua, D A Guobadia, & A O Adekunle (eds), Nigeria: Issues In The 1999 Constitution 290-91 (Nigerian Institute of Advanced Legal Studies 2000). 

[16]For instance, the African Commission on Human and Peoples’ Rights gas severally re-iterated that ‘[t]he only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27(2) according to which ‘rights and freedoms shall be exercised with due regard to the rights of others, collective security, morality and common interest’, see Interights, Institute for Human Rights and Development in Africa and Association Mauritanienne des droit de l’Homme v Mauritania AHRLR (2004) 87; Sudan Human Rights Organization v Sudan (2009) AHRLR 153 (ACHPR 2009) (‘the COHRE case’) para 165. Similarly, the ICCPR, art 19(3) states that:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights and reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

[17]Article 19, Comments Submitted by Article 19 in Suit No. 5/2005 (Supreme Court of The Gambia), Gambia Press Union v National Media Commission (Article 19 2004) <https://www.article19.org/data/files/pdfs/cases/gambia-comments-on-media-commission-act.pdf> accessed 23 January 2018 para 3.3.1. The Human Rights Committee has emphasised that freedom of expression ‘is of paramount importance in any democratic society, and any restriction to the exercise thereof must meet a strict test of justification’, see Communication No. 628/1995, T Hoon Park v the Republic of Korea (Views adopted on 20 October 1998) in UN Doc. GAOR, A/54/40 (Vol. II), 91 para 10.3. In Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) paras 69-70, the African Commission stated: ‘The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained. Even more important, a limitation may never have as a consequence that the right itself becomes illusory’.

[18]Universal Declaration of Human Rights G. A. res. 217 A (III), U.N. Doc. A/810 at 71 (1948), art 19.

[19]International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200 A (XXI) of 16 December 1966, entered into force 23 March 1976, art 19(1).

[20]The European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U. N. T. S. 222, entered into force Sept. 3, 1953, art 10.

[21]Article 9 of the ACHPR provides as follows:

  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.

[22]Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I. L. M. 58 (1982), entered into force Oct. 21, 1986.

[23]American Convention on Human Rights, Nov, 22, 1969, O. A. S. Treaty Series No. 36, at 1, OAE/Ser. L./V/II.23 doc. Rev. 2, entered into force July 18, 1978, art 13. In addition, the principle of freedom of expression is embedded in customary international law, see, Filartiga v Pena-Irala 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit).

[24]Handyside v United Kingdom (1976) 1 EHRR 737 para 49.

[25]Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para 70.

[26]Established “to promote human and peoples' rights and ensure their protection in Africa” by ACHPR, art 30.

[27]Media Rights Agenda and Others v Nigeria (n 17) para 52.

[28]Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) para 65.

[29]Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001) para 44.

[30]Ibid para 45.

[31]Ibid paras 46, 57.

[32]Ibid para 46.

[33]Ibid para 47.

[34]Established under article 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights (African Court’s Protocol), adopted 9 June 1998 by the OAU in Ouagadougou, Burkina Faso, entered into force 25 January 2004. The African Court has jurisdiction concerning the interpretation and application of the ACHPR, the African Court’s Protocol itself and other human rights instrument ratified by State-parties thereto, African Court’s Protocol, arts 3 & 7.

[35]Application No. 013/2011 (judgement delivered 28 March 2014).

[36]The Beneficiaries of the Late Norbert Zongo et al v Burkina Faso (n 35) para 183.

[37]Ibid paras 183, 186.

[38]Application No. 004/2013 Lohé Issa Konaté v The Republic of Burkina Faso <http://en.african-court.org/images/Cases/Judgment/Konate%20Judgment%20Engl.pdf>  accessed 20 February 2018.

[39]Constitution of Burkina Faso 1991 art 8, also guarantees freedom of expression, the press and right to information, see HeinOnlineWorld Constitutions Illustrated <http://heinonline.org.ezproxy.uct.ac.za/HOL/COW?collection=cow> accessed 31 March 2018.

[40]Law on Information No. 56/93/ADP of 30 December 1993; Penal Code Law No. 043/96/ADP of 13 November 1996.

[41]MLDI ‘Persecution of journalists: the Gambia brought before ECOWAS Court’ 12 Oct 2016

<https://www.mediadefence.org/news/persecution-journalists-gambia-brought-ecowas-court> accessed 31 March 2018.

[42]Amnesty International, ‘Gambia: Regional court rules draconian media laws violate human rights’ (14 February 2018) <https://www.amnesty.org/en/press-releases/2018/02/gambia-regional-court-rules-draconian-media-laws-violate-human-rights/> accessed 24 Feb 2018.

[43]Established to replace the Organisation of African Unity (OAU) through the Constitutive Act of the African Union, adopted by the OAU Assembly of Head of States and Governments (AHSG) at the 36th Ordinary Session of the OAU held on 11 July 2000 in Lomé, Togo, OAU Doc. CAB/LEG/23.15 (entered into force 26 May 26 2001) (CAAU), art 2.

[44]See Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) paras 4–6; Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, UN Doc. CCPR/C/USA/CO/4 (2014) para 22.

[45]The Model Law on Access to information for Africa (Model Law) contains the African Commission’s national security benchmark to serve as guide to African States to adopt legislative measures to expand the scope of freedom of expression through access to information while the Declaration of the Principles on Freedom of Expression in Africa embodies international law principles which acknowledge that freedom of expression embraces the right of access to information.

[46]Human rights treaties like the ICCPR, ECHR, IACR, AFCHPR, respectively use epithets like “within the law”, “prescribed by law”, etc.

[47]For a fuller discussion on justificatory conditions for permissible restrictions to Article 9 rights, see, Aaron Olaniyi Salau, ‘The Right of Access to Information and Its Limitation by National Security in Nigeria: Mutually Inclusive or Exclusive?’ (PhD Thesis, University of Cape Town 2017).

[48]See Good v Republic of Botswana (2010) AHRLR 43 (ACHPR 2010); Law Office of Ghazi Suleiman v Sudan(I)  (2003) AHRLR 134 (ACHPR 2003).

[49]Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACHPR 1995) para 15.

[50]Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACHPR 2009) paras 109–110.

[51]Media Rights Agenda v Nigeria (n 17).

[52]Ibid paras 73–5.

[53]ibid para 69.

[54](2000) AHRLR 135 (ACHPR 2000) para 28.

[55]Exemplified in Attorney General of Botswana v Unity Dow Attorney-General v Dow (2001) AHRLR 99 (BwCA 1992) para 109 (CA, Botswana) (holding that provisions of Botswana Citizenship Act 1982, whose effect was to disentitle children of Botswana women married to foreign nationals from claiming Botswana nationality violated Article 2 of the Charter notwithstanding that Article 15 of the Botswana Constitution omitted ‘sex’ among prohibited ground for discrimination. According to the Court, argument that the Charter is not binding having not been passed into law was ingenious because the interpretation of local legislation must not "conflict with Botswana's obligations under the Charter").

[56]Frans Viljoen, ‘Application of The African Charter On Human and Peoples' Rights by Domestic Courts in Africa’ (1999) 43(1) Journal of African Law 43; F M Volkov et al (eds), International Law, (Progress Publisher 1990) 54.

[57]Aaron Salau ‘Positive Obligation to Protect Access to Information in the African Charter and National Security Restrictions in Nigerian Law: Striking the Right Balance’ African Journal of Comparative & International Law (forthcoming); F Viljoen ‘Application of The African Charter On Human and Peoples' (n 56); E V O Dankwa, ‘Implementation of international human rights instruments: Ghana as an illustration’ (1991) 3 African Society of International and Comparative Law 57 (making ‘a plea for the incorporation of international human rights treaties into domestic law in Ghana’ and expressing ‘doubts whether PNDC Law 211 (the Newspaper Licensing Law) "can stand by virtue of the combined effect of Articles 9 and 7(1) of the same Charter").

[58]Freedom House, ‘Gambia, The Freedom of the Press 2016’<https://freedomhouse.org/report/freedom-press/2016/gambia> accessed 13 March 2018 (commenting on criminal prosecutions, physical intimidation and censorship unleashed on Gambian citizens, expatriates-residents, journalists, etc.).

[59]Chapter IV.

[60]Section 27(8).

[61]Section 79(2)(a).

[62](2001) 2 GR 883 [SC] (invalidating the Indemnity (Amendment) Act 2010 for violating Gambia’s constitutional guarantees of human rights and article 7(1)(a) of the African Charter).

[63]Aboubacar Abdullah Senghore, ‘Press freedom and democratic governance in The Gambia: A rights-based approach’ [2012] 2 African Human Rights Law Journal 508.

[64](Text to n 55).

[65]Ibid 165 – 66.

[66]See the Ghanaian case of New Patriotic Party v. Ghana Broadcasting Corporation Writ 1/93, Supreme Court judgment of 30 November 1993 (Archer CJ Concurring).

[67](Text to n 7).

[68]Baboucarr Gaye v The IGP (2000) WLR 200 (HC).

[69]Senghor (n 63).

[70]Gambia Press Union and The Coalition for Human Rights in The Gambia submission to the UN Universal Periodic Review Seventh Session of the UPR Working Group, 1 September 2009 <http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/GM/JS1_UPR_GMB_S07_2010_JointSubmission1.pdf> accessed 22 March 2018.The Criminal Code Amendment Act 2005 punishes defamation with heavy fines Dalasis 50,000 (US$2000) to Dalasis 250,000 (US$10,000). It gives judges the discretion to impose mandatory prison sentences of a minimum of six months.

[71]Nsongurua J Udombana ‘Can the Leopard Change Its Spots? The African Union Treaty and Human Rights’ American University International Law Review (2002) 17(6) 1177, 1230.

[72](Text to n 7).

[73]Ibid.

[74]Ibid.

[75]Ibid.

[76]Ousman A M Jammeh The Constitutional Law of the Gambia: 1965 – 2010 (AuthorHouse Bloomington 2006) 287.

[77]Media Foundation for West Africa, ‘Gambia ALERT: The trial of seven journalists now held in camera’ <http://www.mediafound.org/index.php?option=com_content&task=view&id=395&Itemid=1> accessed 31 March 2018.

[78]Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa’, 44th Ordinary Session of the African Commission held 10-24 November 2008 at Abuja, Nigeria <http://www.achpr.org/files/sessions/44th/inter-act-reps/104/freedom_of_expression.pdf> accessed 31 March 2018.

[79]Gambia Press Union, ‘Gambia Press Union and The Coalition for Human Rights in The Gambia submission to the UN Universal Periodic Review Seventh Session of the UPR Working Group, 1 September 2009’ <http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/GM/JS1_UPR_GMB_S07_2010_JointSubmission1.pdf> 5 accessed 22 March 2018

[80]Section 13.

[81]Section 15.

[82]Section 33. See also Information and Communication Act 2009 (criminalizing false publication on the internet); Criminal Code (Amendment) Act 2004 (cancellation of all previous licences issued to the media and forced re-registration); Newspaper Amendment Act 2004.

[83]The section provides: ‘any person who, willfully or negligently or recklessly or having no reason to believe that it is true, publishes or broadcasts false news, commits an offence punishable on conviction with a minimum fine of D50 000 or a maximum of not more D200 000 or imprisonment for a term of not less than one year’. Section 181A further provides that the fact that the person did not know that the information or the news was false is not a defence unless he or she had taken adequate measures to verify the information.

[84]Freedom House, ‘Gambia, The Freedom of the Press 2016’ (n 58).

[85]See further, International Bar Association Human Rights Institute, ‘The Gambia: Freedom of Expression on Trial’ (IBA 2010) <https://www.ibanet.org> accessed 25 February 2018 (‘Annex I: Selected other cases of harassment and intimidation of journalists).

[86]Article 19, “Written Comments” in Suit No. 5/2005 Gambia Press Union & 4 Ors V National Media Commission & 2 Ors <https://www.article19.org/data/files/pdfs/cases/gambia-comments-on-media-commission-act.pdf> 10-11 accessed 31 March 2018.   

[87]Ibid.

[88]As to what is necessary or “reasonably justifiable in democratic society”.

[89]Cap. 10 Vol. III Laws of The Gambia 1990, sections 51, 178, 179 and 181A respectively (as amended by Criminal Code (Amendment) Act 2004 and Criminal Code (Amendment) Act 2005).

[90]Adopted on 8 August 1996, entered into force 16 January 1997 (as amended).

[91]ECW/CCJ/APP/30/11 Hydara v The Gambia (delivered 10 June 2014) (); Musa Saidykhan v Gambia (2010) ECW/CCJ/APP/11/07 (delivered 16 December 2010) (awarding US $ 2000,000 damages for unlawful arrest, detention and torture by the NIA); Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008).

 

 

ECOWAS Community Court Judgment Against the Gambia: A Step Forward and a Step Backward

by David Abraham, second year law student at the University of The Gambia with a strong passion for the development of Law and Democracy as two inseparable constructs that are key to the development of Africa.

Abstract

The 14th February 2018 decision of the ECOWAS Community Court (ECCJ) in African Federation of Journalists and Others v. The Gambia (hereinafter referred to as AFJ and Others)[1] when thoroughly considered particularly in the context of the geo-political dynamics of the West African sub-region, is notable for three reasons: Firstly, this is the first time the Gambia has declared an intention to comply with a decision of the ECCJ: there are two outstanding judgments by this Court against The Gambia which have been flagrantly ignored up until this point. The referenced cases are Ebrima Manneh vs. The Gambia[2] and Musa Saidykhan vs. The Gambia[3]: both cases, as in AFJ and Others, involved abuses and violations of the rights of journalists and members of the Press in The Gambia.

The Gambia is not alone in its habitual disobedience of ECCJ orders, and a great deal of West Africa States continually ignore any decisions that may be considered politically inconvenient—an estimated 60% of ECCJ decisions are ignored.[4] Thus, there is a glaring need for progress in terms of compliance with ECCJ judgments and orders, the Gambia’s acknowledgement of the ECCJ decision in this case may be found to be a positive development in this regard.

Secondly, the judgment in this case also comes at a particularly unique moment in time, given the fact that the Gambia is in the process of transiting from 22 years of nominal democracy characterized by allegations of human rights abuses,[5] to a new government that is expected to be more compliant with international laws and norms. Transitional justice is an important theme at this time, and many people are looking to receiving some form of justice for the abuses committed by the previous government, as well as seeking to see signs that may suggest that the current government will not continue in any abusive or oppressive trends.

Thirdly, this case creates an opportunity to examine the effectiveness of international human rights law: Human rights law is typically treated as a branch of public international law that is separate from international criminal law and one of the ways this difference is manifested is in the fact that cases are brought against states and not against individuals in contrast to international criminal law, where the opposite is the case.[6] This is a precarious arrangement since it allows the individual culprits to avoid any punishment while directing punishment to the people, in a vicarious manner. With consideration of these three issues, AFJ and Others presents both some positive developments and some negative ones, which will be discussed in this paper.

As International Law continues to grow, and the Courts which administer it seek to gain more relevance, this paper will address the question of how judicial decisions such as that in AFJ and Others may either strengthen or weaken the ongoing efforts to strengthen international human rights law, particularly in the regional political context.

Introduction

The field of International Law is primarily concerned with regulating the conduct of sovereign states with a view to preventing those states from exercising their powers in a manner that inter alia,[7] violates human rights.[8] This definition presents two immediate challenges: The first is that International Law despite being a regulatory construct is required to acknowledge and respect the sovereignty of its subjects, and thus requires the consent of the regulated as a pre-condition to the exercise of jurisdiction, and further requires their ongoing approval in order to continue to exercise jurisdiction. Similarly, the second challenge is that the international bodies responsible for regulating the rule of law on a global scale do not have appropriate enforcement mechanisms – essentially leaving it up to the State itself to comply with international court judgements, and with other States to enforce these judgements.

The consequence of this is that political considerations frequently take pre-eminence over legal decisions, and international court judgments, particularly within the ECOWAS sub-region, frequently end up being ineffective. Nemo judex in casua sua[9] is an established legal principle; however, in cases where individual States are at relative liberty to accept or reject the decisions of International Courts, they are practically wielding a political interference over the judicial process, and violating this principle. It must also be noted though, that the discord between State parties to the ECOWAS Treaty and the ECCJ is not one sided: The ECCJ routinely offers compensatory remedies which may be injurious to the public policy of certain States. In a geo-political region that is almost exclusively composed of Least Developed Countries,[10] strict compliance with stiff monetary penalties simply cannot be expected.

There is also the question of who bears the liability for the punishment meted out to a State. Typically, human rights violations are committed by agents of the State, who are actors within the government, and the most intuitive approach would be to single out the actual perpetrators of human rights abuses either as individuals or as a government, as opposed to imputing their actions to the entire State. Under the current approach however, except for the most serious criminal cases which fall under the jurisdiction of the International Criminal Court (ICC),[11] international jurisprudence is not typically targeted towards governments and the members of governments as such, but rather towards the State as an entity.

These issues are particularly relevant in the Gambian context today, in the face of the judgment in AFJ and Others. The African Federation of Journalists sued the Gambian government on behalf of 5 Gambian journalists, who were either detained, imprisoned, tortured, forced to leave the country or all of the aforementioned by agents of the Gambian government under the Yahya Jammeh regime. 

From 1994 to 2016, the Gambia was under the leadership of the Yahya Jammeh, whose government acquired a reputation for the repression and abuse of human rights.[12] One of the main areas where the Gambia under President Jammeh consistently fell short of international human rights standards was in its enactment of a variety of laws creating new offences that were perceived as targeting journalists and other critics of the government, and prescribing extremely harsh punishments.[13] The right to freedom of expression is a basic human right as enshrined in the United Nations Universal Declaration of Human Rights[14] and furthermore, Articles 5, 6 and 9 of the African (Banjul) Charter on Human and Peoples’ Rights (hereinafter referred to as the Banjul Charter)[15] establish protection from torture and arbitrary imprisonment, as well as guaranteeing the right to free speech. The Gambia is a member of the United Nations (UN),[16]as well as the African Union (AU),[17] binding it to the UDHR, and making it a State party to the Banjul Charter; yet her conduct under the Jammeh government was frequently in contravention of the requirements contained therein. It should also be noted that while the Jammeh government frequently operated under the cover of bad laws, its conduct was also frequently outright lawless since conduct such as unlawful detention and torture which the Jammeh government stands accused of are prohibited within the Gambian Constitution.[18]

The willingness and ability of the new Gambian government to make amends with regards to the Gambia’s poor human rights record has recently been put to the test by the judgment in AFJ and Others. In this judgement, the ECCJ awarded the plaintiffs 6 million Dalasi in damages, and ordered that the Laws of the Gambia as they concern media rights and freedom of speech be amended.[19] The Gambian government has swiftly responded by accepting the judgment and indicating a willingness to comply with it, providing some indication of the new government’s intention to be more compliant with human rights laws.

A Step Forward

The ECCJ decision in AFJ and Others should be viewed as a very positive development for three reasons: firstly, it strengthens the standing of the ECCJ by reinforcing The Gambia’s acceptance of ECCJ jurisdiction. This may help put pressure on other States to do the same. Secondly, it is also a positive development to the extent to which it provides the victims of the Jammeh government with compensation and a sense of justice. Thirdly, this judgment could also be viewed as having set a precedent, indicating that the current government intends to comply with the relevant human rights provisions The Gambia is bound by. However, there may be some room for argument over whether the Gambia’s acceptance of the ECC decision is a genuine step forward, since this decision is with effect only with regards to the current case. As noted earlier, there are two prior judgments against the Gambia which are yet to be implemented: perhaps in order to be taken seriously, the Gambian government should first accept and implement the previous outstanding judgements of the ECCJ.

As a proposal, a true step forward in this area might be to enact domestic legislation requiring the government of The Gambia to comply with the future decisions of the ECOWAS Community Court and other relevant international bodies to which The Gambia belongs. Whether such a move is feasible Vis a Vis the desire of every State to retain and protect its sovereignty is arguable, yet there remains a need for strong commitment to the decisions of international courts such as the ECCJ. In the absence of this, individuals who seek redress at such courts are put through the risk of wasting time and resources in pursuing justice at a Court whose power is subordinated to political interests. This is potentially a double injustice since, iustitiam morari iniustitia est.[20]

In the domestic legal context, it would certainly be a genuine step forward if the Gambia abides by its promise to repeal the laws alluded to in the ECOWAS Community Court judgment. The posture of the government however, may be interpreted as being rather unwilling to act in this regard, since it has been in power since early 2017[21] without making any strong moves to change the offending laws, despite having promised to do so as a part of its campaign manifesto.[22]

A Step Backward

Having considered some of the positive implications of the decision in AFJ and Others, it is also necessary to consider some of its negative implications. In dissecting the value of the decision in this direction, it must be pointed out that the Gambian people were themselves victims of the Jammeh regime. As mentioned earlier, there are numerous cases where Gambians who spoke out against the Jammeh government either disappeared under mysterious circumstances, were imprisoned following dubious judicial proceedings or forced into exile, and there was a tangible fear of the National Intelligence Agency (NIA), which was accused of complicity in many of these incidents. Repressive laws were enacted and used to harass journalists and dissidents, and otherwise to ensure that Gambian citizens could not safely exercise their right to free speech. A Court judgment therefore, on the human rights violations committed by the government of The Gambia that ends up punishing the people of The Gambia in the name of punishing the Gambian State, is effectively double punishment for the victim, and is itself a greater injustice.

Laws ought not to be applied rigidly, particularly where such rigid application would lead to an unjust outcome affecting the wellbeing of the members of the public in general. This idea is reflected in a limited manner within international law: Article 38(2) of the Statute of the International Court of Justice (Which Statute is part of the applicable law of the ECCJ[23]), provides that the Court may choose not to abide by the interpretation of any the sources of law discussed in Article 38(1), but may choose to decide any given case in the interest of the public good if the parties to the case agree to such application.

This provision, while limited by the requirement that the parties to the case agree to dispense with application of legal principles, demonstrates the importance of public policy considerations in international law. Following this observation, it would not be improper to suggest that Judges of the ECCJ and other Regional Courts with respect to Human Rights ought to decide cases, to the furthest extent possible, with public policy considerations in view.

Analysis

The principal focus of circumspection with regards to AFJ and Others is not one of whether the ECOWAS Community Court has made the right decision, but it is instead a question of whether it has provided the appropriate remedy, in view of the available legal remedies when the rights and interests of the plaintiffs are weighed against the interests of public policy. The issues here are not as straightforward as one might be led to believe: the simplistic argument would be that the State committed human rights infractions and therefore ought to be penalised. However, it seems reasonable to start from the point of view that the State is an abstract entity with no true claim to legal identity in and of itself, but rather represents a people and is itself represented by a government.

The most commonly agreed upon elements of statehood are:

(a) A defined population i.e a group people who identify with each other;

(b) Living within a geographical location;

(b) Possessing a sovereign government;

(c) And having the capability to enter into treaties and relations with other States.[24]

The important elements that must be considered within the scope of the present case are the elements of a people, and of a government. Clearly, a State is not merely one of these elements, rather it is the contraption that brings together all of all of these elements. More specifically, a State then comprises, inter alia,[25] both the people who live within a defined territory, and the government that acts on their behalf. In this way, judgements against a State – whist nominally borne by the government of the State – are really borne by the people of that State, albeit in a vicarious manner.

That a government should be treated as being different from the State seems obvious: The State is permanent, but governments come and go. Governments are also typically self-serving in many respects and cannot be said to always act in the best interests of the State or of their people. In many cases, corrupt rulers abuse the mechanism of the State in order to further their own interests. A suitable approach, then, to reasonably draw conclusions about whether a course of action or conduct should be attributed to a State or its government in any given case, would be to look to determine whether or not the government in question has acted outside the known scope of the will of the people which is expressed by and within the laws of that State. In the local context, the office of the President is created within the Gambian Constitution, and details the roles and functions of the president. Where the president acts outside the scope of these descriptions, he or she is effectively violating the will of the State. For example, the Gambian Constitution prohibits torture and provides protection for freedom of expression. Crucially, Section 17 of this Constitution also binds the Executive to uphold these and other human rights provisions. Where these laws are violated, the first victim is, generally, the State itself, and it cannot be then said that the government of the day has acted on behalf of the State. For emphasis, it should be noted that the Constitution of the Gambia provides in Section 2, that the sovereignty of The Gambia lies in its people, and that the powers of government are exercised on the behalf of them.[26] Thus, the sovereign State of The Gambia is only a representation of the people of the Gambia and should not be viewed as having a separate identity of its own, nor should its identity be strictly attributed to the personality of its government.

With this in mind, it seems clear that the monetary remedy applied by the ECCJ merely provides double punishment for the victims and is ineffective at fulfilling the purposes of legal remedies – It is widely accepted that legal remedies should come in one or all of four major forms:

(a) Compensation and restoration: Victims should be returned to their former state or offered just satisfaction;[27]

(b) Retribution: Perpetrators should be made to face the retributive consequences of their actions to satisfy the need for revenge;[28]

(c) Deterrence: punishment serves as a deterrent to future misconduct[29]

(d) Reconciliation: perpetrators and their victims may be brought together and reconciled, providing a sense of justice without there necessarily being any tangible punishment.[30]

The decision in the case superficially fulfils some of these objectives: The State which has been viewed following the traditional approach, as being the culprit is punished with damages which also ought to fulfil the deterrent function, while the victims have been compensated both by the awarding of damages and the order instructing the Gambia to repeal the offending laws. On closer inspection, however, it may be observed that these damages have failed to apply punishment to the truly guilty party, which was the Yahya Jammeh government and not the Gambian State which was itself a victim. Aristotle, writing in the ethics[31] is widely considered as having laid the foundation for what has developed into ideas of Compensatory justice today, and made this interesting declaration: ‘What the judge aims at doing is to make the parties equal, whereby he takes from the aggressor any gain he might have accrued’. It makes sense in the light of this foundation, that for a Court to apply any compensatory measures, it must consider whether or not the alleged aggressor has enjoyed any benefits by virtue of its conduct. In the material case, this calls for examination of whether or not the Gambia as a State has acquired any benefits from the human rights abuses committed by the Jammeh government: contrarily, The Gambia as a State has been shown to have itself been a victim of these abuses. Thus the first condition for the imposition of compensatory damages seems to be absent.

In terms of retribution, the individuals directly responsible for the abuses have not been punished in any way, by the remedies imposed by the ECCJ. Instead, the victim, The Gambia is being punished twice. Vicariously as well, the individual awardees are also bearing part of this retributive burden since these monies will be paid from tax payers funds to which they are ostensibly, contributors themselves.  

Furthermore, the deterrent function as applied in this case is also likely to be quite ineffective: Since governments and Heads of States under the current processes are not targeted for punishment, what is there to deter them from committing such acts with the knowledge that a future government would be made to bear the burden?

Finally, it must be considered that this judgment is a potential opening of the floodgates. Considering the fact that there may be hundreds more Gambian citizens with legitimate causes against the Jammeh government the question is, would the ECOWAS Community Court be willing to award each applicant similar remedies? This question is particularly notable, since the ECCJ in AFJ and Others also clarified that Human Rights violations are not statute barred. It would have no grounds then, for denying equal remedies to applicants who present similar cases, which potentially portends a huge compensation bill for The Gambia. Thus the long-term outcome would be one of three: either that the Court becomes inconsistent in its decisions and therefore unreliable, that The Gambia becomes saddled with a crippling compensation bill, or that The Gambia refuses to cooperate further with the Court. None of these situations would serve the best interests of the public good, nor would it serve to further the goal of strengthening international human rights law. 

Conclusion

The interaction between States, their people, and the ECOWAS Community Court of Justice is a complicated one that should be simplified as much as possible, rather than compounded. A big part of the challenge here is that international human rights law is largely considered to be separate from international criminal law, and as such, without an extension of the powers of regional courts such as the ECCJ, there will be great difficulty in constructing a suitable approach to effectively administering justice in human rights cases. Yet, the relative degree of difficulty encountered in the course of justice ought not to be the appropriate benchmark of the worthiness of any course of action. Fiat Justitia ruat coelum[32] is a foundational principle of justice and the onus therefore is upon the international comity and specifically, the sub-regional comity of ECOWAS, to determine new means with which to approach human rights enforcement more effectively, particularly by the inclusion of criminal remedies.

It should be noted that the conduct that forms the subject matter of this case could be eligible for scrutiny under the Rome Statute (RS). Article 7(1)(k)RS provides prohibitions against torture and deprivation of liberty, with violations of these provisions to be treated as crimes against humanity. The difficulty with referring such cases as the situation in the Gambia under the Jammeh regime, to the ICC for consideration lies in the fact that the ICC is focused on processing only what are viewed as the most serious infractions. One critical element that must be fulfilled is that the course of action should have been widespread or systematic in nature, which refers to the scale of the conduct, and the level of organization involved in its execution. The conduct of the Jammeh government is unlikely to meet these requirements, and would likely not qualify for ICC jurisdiction. However, it must be then be observed that this conduct while it does not meet the threshold for ICC consideration still falls within the subject matter jurisdiction of the Rome Statute which prohibits, inter alia, torture and arbitrary imprisonment.

It then seems quite appropriate that human rights abuses which do not meet the Rome Statute’s widespread or systematic requirements should not then be considered under an entirely different field of international law, but should rather be treated at lesser criminal courts with a lower threshold for qualification. Regional and sub-regional Courts such as the ECCJ ought to be expanded to possess criminal law jurisdiction, failing which other Courts ought to be created to serve this purpose.

This approach is likely to be quite arduous to implement, and will likely be fraught with some of the same challenges as currently faced by the ECCJ, such as non-compliance. However, there is another possible approach to protecting States from bearing the liability for the self-serving actions carried out by their governments, outside the will of the people: Courts may order rescission in cases where the plaintiff may be restored to their former state, and other general measures such as the amendment of bad laws. Monetary damages however, are directly injurious to public policy and thus are indirectly injurious to the development of international human rights law which in its current state is inextricable from political considerations.

Footnotes

[1]African Federation of Journalists vs. The Gambia, ECW/CCJ/APP/36/15

[2] Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008)

[3] Musa Saidykhan v. Gambia, ECW/CCJ/JUD/08/10

[4] Human Rights Brief, ECOWAS Community Court Focuses on Effective Implementation, http://hrbrief.org/2012/11/ecowas-community-court-of-justice-focuses-on-effective-implementation/

[5] World Report 2017, https://www.hrw.org/world-report/2017/country-chapters/gambia

[6] Rome Statute of the International Criminal Court, Article 25(1)

[7] Latin i.e “among other things”

[8] United Nations, What is International Law, http://www.un.org/en/sections/what-we-do/uphold-international-law/ accessed 31 March 2018

[9] Latin i.e “no man shall be a judge in his own case”

[10] http://www.nationsonline.org/oneworld/least_developed_countries.htm

[11] See: the Preamble of the Rome Statute of the International Criminal Court

[12] The Gambia Under Yahya Jammeh: 22 Years of Repression and Rights Violations, (Media Foundation for West Africa), http://www.mfwa.org/country-highlights/the-gambia-under-yahya-jammeh-22-years-of-repression-and-rights-violations/ accessed 8 April 2018

[13] Ibid

[14] United Nations Charter Declaration of Human Rights

[15] Africa (Banjul) Charter on Human and Peoples Rights

[16] http://www.un.org/en/member-states/

[17] http://chartsbin.com/view/1341

[18] 1997 Constitution of The Gambia, Sec. 19, 21

[19] African Federation of Journalists vs. The Gambia, ECW/CCJ/APP/36/15

[20] Latin i.e to delay justice is to deny justice

[21] ‘The Gambia: President Barrow Sworn in at Packed Stadium’ (The BBC) <http://www.bbc.com/news/world-africa-39011393> accessed 8 April, 2018

[22] Vivian Afloah, ‘One Year After Jammeh: Is the Barrow Government Keeping Its Promises?’(Media Foundation for Africa, 17 December 2017) < http://www.mfwa.org/one-year-after-jammeh/> accessed 8 April, 2018

[23] Community Court of Justice – ECOWAS, (courtejustice.org),< http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=2&Itemid=5>, accessed 12 April 2018

[24] The Montevideo Convention on the Rights and Duties of the States, 1933, Article 1

[25] Latin i.e ‘among other things’

[26] The 1997 Constitution of The Gambia, Sec. 2

[27] Dina. S. Shelton, Remedies in International Human Rights Law, (GW Law Publications and Other Works, 2005), p 10 at 1.2.1.

[28] Ibid at p 12, 1.2.2

[29] Ibid at p 13, 1.2.3

[30] Ibid at p 14, 1.2.4

[31] Aristotle, The Ethics, Trans. J.A.K Thompson, (1955), 148-9

[32] Latin i.e ‘let justice be done though the heavens fall’

 

 

A Fine Balance: Assessing Restrictions on Freedom of Expression at the African Court on Human and Peoples' Rights

by Oliver Windridge, a British lawyer specialising in international human rights and international criminal law. He is founder of The ACtHPR Monitor, a website and blog dedicated to the African Court on Human and Peoples’ Rights (African Court). In 2014 Oliver was appointed to the African Court’s List of Counsel (pro bono). He has advised numerous NGOs and individuals on litigation within the African human rights system and currently serves as counsel in cases pending before the African Court and African Commission on Human and Peoples’ Rights. Oliver can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. and via Twitter: @oliverwindridge.

Abstract 

Freedom of Expression is an important right in any democratic society. But this right is not without restrictions. Indeed, international human rights law has been drafted to allow for some restrictions on freedom of expression when such restrictions serve the greater good of society. This paper examines the African Court on Human and Peoples’ Rights’ emerging jurisprudence on freedom of expression, and what constitutes a legitimate restriction on freedom of expression. Examining the cases of Lohé Issa Konaté v Burkina Faso and Ingabire Victoire Umuhoza v Republic of Rwanda, this paper reveals the emergence of a four-limb test to evaluate whether restrictions are in fact compliant with both the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. Whilst this test is still in an early stage of application, the paper argues that it serves as a clear and effective way of assessing future potential cases for challenge within the African human rights system.

Introduction 

Freedom of expression is a dearly cherished right, found in all democratic societies, and ensconced in international human rights law.[1] The right to freely express opinions allows the free exchange of ideas and concepts, and sees those ideas and concepts evolve into conversation and debate, which can in turn can result in action and change. However, whilst some rights – the prohibition from torture for example – are absolute,[2] the right to freely express one’s views is not. The right to freedom of expression can be restricted when these limitations seek to balance the right to say anything with the protection of individual and society more broadly from what is said. This balance is necessary as some expressions – incitement to violence, hatred and even genocide – if left unfettered have the possibility to reparably damage society in the most destructive ways. Thus, the right to freedom of expression and the grounding for restricting it is paramount, as found most prominently in Article 19 of the International Covenant on Civil and Political Rights (ICCPR).[3] At the continental level, the African Charter on Human and Peoples’ Rights (African Charter) also contains provisions for the freedom of expression under Article 9.[4] Importantly, both the ICCPR and African Charter contain direction on when the restriction on freedom of expression is valid – often referred to as “duties and responsibilities”.[5]

This paper will examine the African Court on Human and Peoples’ Rights (African Court) approach to restrictions on freedom of expression by focusing on Lohé Issa Konaté v Burkina Faso and Ingabire Victoire Umuhoza v Republic of Rwanda.[6] It will provide a background to both cases before examining how the African Court has approached restrictions to freedom of expression. Specifically, this paper sets out the test that the African Court has sought to apply to challenges to restrictions imposed by member states. In a nod to the practical, this paper also includes a simplified flow chart to set out the tests applied by the African Court and assist the reader in determining whether current or proposed restrictions of freedom of expression comply with international human rights law. Though in its infancy, this paper argues that the test found in these two cases proves a reliable starting point from which to assess whether national laws such as those found in Gambia comply with international human rights standards. This assessment is particularly relevant given the recent Economic Community for West African States (ECOWAS) judgement FAJ et al. v. Gambia, which reportedly relied heavily on the two cases reviewed in this paper.[7] As the ECOWAS judgement was anchored on the foundations of the African Court’s cases reviewed in this paper, the need for a careful review of these cases proves even more important.

Background

At the outset, it is worth nothing that in both Konaté and Ingabire judgements, the applicants challenged restrictions on their freedom of expression in relation to Article 9 of the African Charter, but also Article 19 of the ICCPR.[8] In the Konaté case, the applicant also alleged violation of Article 66 (2) (c) of the ECOWAS Treaty.[9] 

In the Konaté Judgement, Mr. Konaté, a Burkinabe national, was Editor-In-Chief of L’Ouragan Weekly – an independent newspaper focussing on political and social issues published in Burkina Faso.[10] In a number  of articles published in L’Ouraganin, Mr. Konaté made allegations against the Burkina Faso Public Prosecutor, which led to his prosecution under criminal defamation laws for defamation, public insult and contempt of court.[11] On 29th October 2012, the Ouagadougou Court sentenced Mr. Konaté to twelve-months imprisonment, and ordered him to pay a fine of 1.5 million CFA Francs. Mr. Konaté was also ordered to pay the Prosecutor 4.5 million CFA Francs as damages plus interest and court costs of 250,0000 CFA Francs. Furthermore, the court ordered that the L’Ouragan Weekly be suspended for six months and for the judgement against Mr. Konaté to be published in three separate newspapers, including in the L’Ouragan Weekly, for four months.[12] Following the confirmation of the judgement by the Ouagadougou Court of Appeal, Mr. Konaté petitioned the African Court arguing that the jail term, huge fines, damages and court costs violated his freedom of expression.[13]

The Ingabire judgement concerned Ms. Ingabire – the leader of a political party called Forces Démocratiques Unifiées.[14] In 2010, after nearly 17 years abroad, Ms. Ingabire decided to return to Rwanda to contribute to nation building. Her priorities included the registration of the political party in compliance with Rwandan laws.[15] In February 2010, soon after her arrival back in Rwanda, charges were brought against her.[16] These charges emanated from remarks that Ms. Ingabire made at the Kigali Genocide Memorial, as well as other interviews and statements.[17] In April 2010 she was consequently remanded in custody on charges of complicity in terrorism, and the ideology of genocide.[18] These charges were later amended, and Ms. Ingabire was charged by the Gasabo High Court with similar offences including, inter alia, propagation of ideology of genocide, aiding and abetting terrorism, and spreading rumours likely to incite the population against political authorities and mount citizens against one another.[19] Following a series of delays and challenges, the High Court delivered its judgement on 30th October 2012, finding Ms. Ingabire guilty of conspiracy to undermine established authority and violate constitutional principles by resorting to terrorism and armed force.[20] She was further found guilty of minimisation of the genocide, and sentenced to a total of eight-years imprisonment.[21] In its judgement on appeal, the Rwandan Supreme Court resentenced Ms. Ingabire to fifteen-years imprisonment for undermining the Rwandan Government and the Rwandan Constitution through acts of terrorism, war or other violent means, of downplaying genocide, and of spreading rumours with the intent to incite the population against the existing authorities.[22] Upon this judgement, Ms. Ingabire petitioned the African Court, arguing that her convictions stemming from her speeches violated her right to freedom of expression.[23]

Assessing Restrictions on Freedom of Expression 

The African Court has made clear that the right to freedom of opinion or expression is not unfettered; some restriction is permitted within international human rights law.[24] The African Court has developed a four-limb test to examine whether such restrictions are indeed valid. These elements assess whether: (i) there a restriction on freedom of expression; (ii) the restriction is proscribed by law; (iii) the restriction serves a legitimate purpose; and (iv) the restriction is necessary and proportional. The remainder of this paper will now examine each element in turn.

Is there a Restriction on Freedom of Expression?

Before assessing the African Court’s approach to the restrictions on expression, there must first be a restriction to assess. Without a restriction, the test to consider a restriction’s validity becomes obviously moot. This may be particularly relevant if a Member State argues, either domestically or before regional courts such as the African Court, that there is in fact no restriction on freedom of expression. In both cases examined here however, the Member States did not contest the existence of restrictions.[25] Instead, both argued that the restrictions were justified. Broadly speaking, Rwanda argued that freedom of expression was restricted by laws prohibiting the denial of the 1994 Rwandan genocide or the promotion of future genocide, particularly given Rwanda’s tragic recent history.[26] By contrast, Burkina Faso argued the restriction found in criminal defamation laws were required to protect the honour of its public officials.[27]

Is the Restriction Proscribed by Law?

In the Konaté judgement, the African Court looked to Article 19 (2) of the ICCPR and the UN Human Rights Committee’s definition of the “law”.[28] These definitions were bolstered by findings from the African Commission on Human and Peoples’ Rights (African Commission), concluding that the grounds for limitation of freedom of expression are not expressly provided for, and that the term “within the law” provides leeway to cautiously fit in legitimate and justifiable individual, collective and national interest as grounds of limitation.[29] Consequently, it found that the phrase “within the law” as found in Article 9 (2) of the African Charter must be interpreted with reference to international norms, which can provide grounds of limitation on freedom of expression.[30] With this in mind, the African Court found that restrictions were indeed “proscribed by law”, as they were contained in the Burkina Faso Penal and Information Codes, and were drafted with sufficient clarity to enable individuals to adapt their conduct according to the laws, and to enable those in charge of applying the rules to determine what forms of expression are legitimately restricted, and which are unduly so.[31]

In the Ingabire judgement, the African Court observed that there was no dispute over the restrictions placed on Ingabire’s statements as contained in Rwandan law.[32] The African Court therefore found that the restrictions could properly be described as “proscribed by law”, since they were found in Rwandan legislation – echoing the African Court’s approach in the Konaté judgement.[33] However, in the Ingabire judgement, Ms. Ingabire challenged not just the restriction’s existence in national legislation, but also the nature of the law itself. Ms. Ingabire argued that although the restriction could be found in a law, this law was vague and unclear, which rendered its existence invalid.[34] In response to this line of argument, the African Court further developed the notion of “law”, as found in Article 9 (2) of the African Charter’s “proscribed by law”. In particular, it found that “law” must be interpreted in light of international standards.[35] In doing so, the African Court found that the “law” must be: (i) clear; (ii) foreseeable; (iii) compatible; and (iv) of general application.[36] Applying this test, the African Court found that although some terms of the Rwanda legislation were broad, given the difficulty with which defining certain types of speech and the margin of appreciation given to member states the laws, the laws were indeed proscribed by law.[37]

Does the Restriction Serve a Legitimate Purpose?

In the Konaté judgement, the African Court set out that for a restriction to serve a “legitimate purpose”, it must be legitimately in the public interest, and the disadvantages to the individual must be strictly proportionate to and absolutely necessary for the benefits to be gained.[38] In terms of legitimate public interest, the African Court made clear that only restrictions stipulated in Article 27 (2) of the African Charter are valid.[39] The African Court again looked to the ICCPR, citing Article 19 (3) (a) and (b).[40] It considered these texts against Burkina Faso’s explanation that the laws restricting expression served the legitimate purpose of protecting the honour of public officials.[41] The African Court agreed, finding that such protection was a legitimate purpose.[42] In Ingabire, the African Court applied the same test against Rwanda’s submissions that genocide-related laws restricting freedom of expression served a legitimate purpose, as they sought to stabilise the country and prevent further atrocities.[43] Again, the African Court found that such aims were indeed, legitimate.[44]

Is the Restriction Necessary and Proportional?

With regards to Konaté, the African Court began by stating that in order for the restriction to be assessed as necessary, the context must be considered.[45] It set out further that such an assessment must ascertain whether the restriction is a proportionate measure to protect the rights of others.[46] To assess this need and proportionality, the African Court looked once more to Article 19 (3) of the ICCPR, as well as similar case law from the African Commission, UN Human Rights Committee, European Court of Human Rights and the Inter-American Court of Human Rights.[47] Helpfully, the African Court provided examples of restrictions considered necessary and proportional, including the criminalisation of speech often termed “hate speech” or speech inciting violence.[48]

The African Court also made clear that in assessing the necessity and proportionality of any restriction on freedom of speech, it will examine who the opinion or statement is aimed at.[49] As such, it set out that the restriction should not be used to protect solely those in public positions, as seen in Burkina Faso’s criminal defamation laws.[50]

The African Court considered the use of criminal defamation laws and the sentences provided within the legislation, recalling that such laws have consistently been considered measures of last resort by other regional human rights courts and committees.[51] With this in mind, the African Court deemed Burkina Faso as failing to demonstrate why defamation as a criminal offence punishable by imprisonment is a necessary limitation to freedom of expression, in order to protect public officials.[52] Accordingly, the African Court found Burkina Faso in violation of Article 9 (2) of the African Charter, Article 19 of the ICCPR and Article 66 (2) (c) of the ECOWAS Treaty.[53]

This theme was developed further in the Ingabire judgement. The African Court recalled that restriction must be strictly necessary in a democratic society and proportional to the legitimate purposes pursued by imposing such restrictions – further emphasising the need for placing restrictions on forms of expression in  context.[54] Thus, the African Court split the speeches of Ingabire into those referring to the Rwandan Genocide, and those aimed at public officials.[55] The African Court found that restrictions within the context of the Rwandan Genocide could be deemed necessary and proportional, but in this case, the speech made by Ingabire was not in fact aimed at genocide denial, but more generally towards the situation in Rwanda post-genocide. [56]

Referring to statements about those in the public eye, the African Court found that politicians and the judiciary should be prepared to accept a higher level of criticism than the general public, without imposing restrictions on speech.[57] The African Court also made clear that freedom of expression protects not only favourable or inoffensive opinions, but also those that disturb a state or section of the population.[58] Therefore, whilst laws prescribed to criminalise genocide-minimisation acts are legitimate, they should not be applied to the rights and freedoms of individuals, or in a manner that disregards international human rights standards.[59] Indeed, the African Court reiterated that the legitimate exercise of rights and freedoms is as important as the application of laws seeking to promote national security and public order, indicating that AU Member States cannot assume that the need to quell serious atrocities trumps individual rights.

As to Ingabire’s remarks criticising government and officials, the African Court stated the whilst some comments may be offensive or discredit the integrity of public officials and institutions, such statements should be tolerated within a democratic society.[60] Reiterating its stance from the Konaté judgement, the African Court found that public officials must maintain a higher degree of tolerance to such comments.[61] It is notable that the African Court found that even in the event that these types of statements could be legitimately restricted, the sentence itself was not proportional and would thus fail the third limb of the test.[62] Considering the above, the African Court found Rwanda in violation of Article 9 (2) of the African Charter and Article 19 of the ICCPR.[63]

Restriction on Freedom of Expression Overview

From the proceeding paragraphs, there is a clear emergence of a four-limbed test to examine whether a AU Member State’s laws, actions and policies are valid under international law – specifically, the ICCPR and African Charter. Within these four limbs exist a further sub-set of tests, as illustrated by the following flow chart to determine whether restrictions to freedom of expression are valid under international human rights law:

Key: Red Arrow = No Green Arrow = Yes

Conclusion

It is undisputed that restrictions to freedom of expression can exist within the remit of international human rights law. Indeed, the African Court makes this abundantly clear in both Konaté and Ingabire judgements. How these restrictions manifest is set out in relative detail in the ICCPR, whereas the African Charter is not quite so clear. Given the lack of detail in the African Charter itself, the African Court’s jurisprudential development of the four-limb test provides welcome clarity. The existence of a four-limb test, with each part containing further hurdles might appear complicated, but nevertheless, is necessary. Despite restrictions being recognised in international human rights law, it is still difficult for an AU Member State to justify a restriction to freedom of expression.

Considering first the “proscribed by law” limb, the African Court’s reasoning develops from the Konaté judgement to the Ingabire judgement: In Ingabire, the African Court assesses the term “law” in greater detail. What this examination leads to is further explanation that “proscribed by law”, requires not only that an AU Member State can point to the statute book, but also that the content of the law complies with international standards. Therefore, the first step is to ask “can I point to the restriction?” and “is the restriction easy to find?”. If the answer is no, then the restriction does not comply with international standards. If the answer is yes, the second step is to ask “is the law clear, foreseeable, compatible and of general application?”. Again, a restriction that does not meet this standard signals a violation. This puts the onus on AU Member States to draft new laws or amend existing laws on what may constitute a legitimate restriction on freedom of expression. The Ingabire judgement allows the laws to be widely drawn and still meet this threshold; perhaps giving Member States an overly extensive net in which to cast into the waters, but this may become refined in future cases.

As to the “legitimate purpose” limb, it can be argued that the African Court has widely construed the test in these two cases. The most straightforward is the Ingabire judgement. Here, the aim of ensuring national security and preventing further atrocities is without reproach. What will be interesting is to see if future Member States refer to the same arguments for their explanation. What may seem an entirely reasonable aim in a country emerging from genocide may not be so convincing for a country trying to play a similar card without being in a similar position. The Konaté judgement sees the “legitimate purpose” aim stretched even further: Here, the African Court was satisfied that restrictions aimed at persevering the “honour” of public officials met the test. Yet, it is more difficult to square this as a legitimate aim alongside international human rights standards, and particularly when the African Court later refers to public officials needing to accept a higher level of attention and criticism, given their position. How the legitimate aim of preserving honour and the need for public officials to accept that their position comes with a certain level of unrestricted criticism requires further examination in future cases. At the very least, it seems the Konaté judgement’s position indicates a low hurdle for the “legitimate purpose” limb in future cases.

As to the “necessary and proportional” test, it should first be noted that it is in this final limb the African Court found violations in both cases. Here, context remains key in assessing whether any restriction is necessary and proportional. It is certainly useful that the African Court set out what types of restrictions would comply with this test. Perhaps of even more assistance is the African Court’s development of the ‘thick skin’ approach to criticism and comments regarding public figures. Naturally, it is leaders and public figures who garner the greatest level of attention and criticism. This is a necessary part of public life and it is encouraging to see the African Court recognise as such. It may not be comfortable nor appealing for those in such positions, but the African Court made clear that it is reasonable in a democratic society to expect a level of comment and debate, and that the use of laws to restrict these opinions is in violation of international human rights standards.

It is also encouraging to see the African Court spell out that disagreeable content alone is enough to validate a restriction – an important standard that is vital to establish at this early stage of the African Court’s jurisprudence. Alongside this, the African Court has made clear that even societies emerging from the most terrible atrocities such as the Rwandan Genocide, do not give governments carte blanche to restrict expression. These statements are particularly important moving forward as the African Court will inevitably consider new freedom of expression cases. The balance is a fine one, but is one that that cannot be properly done without strict adherence to international human rights standards – something that Member States across Africa must prioritise in the coming years.

Footnotes

[1] See for example, Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Conventions on Human Rights and Article 9 of the African Charter on Human and Peoples’ Rights.

[2] See for example, the United Nations Convention Against Torture, Article 2.2 “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

[3] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (hereinafter ICCPR). Article 19 (1) states “Everyone shall have the right to hold opinions without interference” and Article 19 (2) “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

[4] African Charter on Human and Peoples’ Rights (Adopted 27 June 1981, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 (hereinafter African Charter). Article (2) states “Every individual shall have the right to express and disseminate his opinions within the law.” Similar freedom of expression rights can be found in other regional human rights instruments. See Article 10 of the European Convention on Human Rights “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

  1. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

See also Article 13 of the American Convention on Human Rights:

  1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
  2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
  3. respect for the rights or reputations of others; or
  4. the protection of national security, public order, or public health or morals.
  5. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

[5] Article 19 (3) of the ICCPR states 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 9 of the African Charter states “Every individual shall have the right to express and disseminate his opinions within the law” (emphasis added).

[6] Lohé Issa Konaté v Burkina Faso App no 004/2013 (ACtHPR, 5 December 2014) (hereinafter ‘Konaté Judgement’); Ingabire Victoire Umuhoza v Republic of Rwanda App no 003/2014 (ACtHPR, 24 November 2017) (hereinafter ‘Ingabire Judgement’).

[7] At the time of writing the full judgement in the FAJ et al. v Gambia case was yet to be handed down. A summary of the judgement can be found on the ECOWAS Court of Justice website at http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=410:ecowas-court-awards-six-million-dalasis-against-the-gambia-for-incaceration-and-torture-of-journalists. As to the reliance on African Court judgements on freedom of expression, see Media Defence Legal Initiative, an NGO acting in the case website https://www.mediadefence.org/news/ecowas-court-delivers-landmark-decision-one-our-strategic-cases-challenging-laws-used-silence.

[8] Konaté Judgement, para. 36. Article XX of the African Court Protocol gives the African Court jurisdiction to consider alleged violations of the African Charter and also any other international human rights instrument to which the member state subject to the challenge has ratified.

[9] Konaté Judgement, para. 36.

[10] Konaté Judgement, paras. 1, 8.

[11] Konaté Judgement, paras. 3, 4.

[12] Konaté Judgement, paras. 5, 6.

[13] Konaté Judgement, paras. 7, 9

[14] Ingabire Judgement, para. 5.

[15] Ingabire Judgement, para. 6.

[16] Ingabire Judgement, paras. 6, 10.

[17] Ingabire Judgement, para. 134.

[18] Ingabire Judgement, para. 8.

[19] Ingabire Judgement, para. 8.

[20] Ingabire Judgement, para. 23.

[21] Ingabire Judgement, para. 23.

[22] Ingabire Judgement, para. 32.

[23] It should be noted that Rwanda withdrew its Article 34(6) Additional Declaration during these proceedings. Whilst it is not the focus of this paper to examine this decision, details of Rwanda’s withdrawal and the African Court’s subsequent decision are found in paras. 41-45 of the Ingabire Judgement.

[24] See for example Ingabire Judgement, para. 133.

[25] Konaté Judgement, para. 9; Ingabire Judgement, para. 134.

[26] Ingabire Judgement, paras. 139-141.

[27] Konaté Judgement, para. 136.

[28] Konaté Judgement, para. 128 referring to Keun-Tae Kim v The Republic of Korea, UNHRC Communication no 574/1994 (4 January 1995) [25] which states “[…] to be considered as “law”, norms have to be drafted with sufficient clarity to enable an individual to adapt his behaviour to the rules and made accessible to the public. The law cannot give persons who are in charge of its application unlimited powers of decision on the restriction of freedom of expression. Laws must contain rules which are sufficiently precise to allow persons in charge of their application to know what forms of expression are legitimately restricted and what forms of expression are unduly restricted.”

[29] Konaté Judgement, para. 129 referring to Kenneth Good v The Republic of Botswana ACHPR Communication no 313.15 [188].

[30] Konaté Judgement, para. 129 referring to Malawi African Association and Others v Mauritania Communication no 54/91-61/91-98/93-164/97-196/97-210/98 [102]

[31] Konaté Judgement, paras. 130-131.

[32] Ingabire Judgement, para. 135.

[33] Ingabire Judgement, paras. 133, 135.

[34] Ingabire Judgement, para. 135.

[35] Ingabire Judgement, para. 136 referring to Konaté Judgement, para. 129.

[36] Ingabire Judgement, para. 136.

[37] Ingabire Judgement, paras. 137-138.

[38] Konaté Judgement, para. 133.

[39] Konaté Judgement, para. 134. Article 27 (2) of the African Charter states: “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”

[40] Konaté Judgement, para. 135.

[41] Konaté Judgement, para. 136.

[42] Konaté Judgement, para. 137.

[43] Ingabire Judgement, paras. 139-141.

[44] Ingabire Judgement, paras. 141, 147.

[45] Konaté Judgement, para. 145.

[46] Konaté Judgement, para. 145.

[47] Konaté Judgement, paras. 146-154.

[48] Konaté Judgement, para. 165.

[49] Konaté Judgement, para. 155.

[50] Konaté Judgement, para. 156.

[51] Konaté Judgement, paras. 158-161 referring to the European Court on Human Rights, the Inter-American Court on Human Rights and the UN Human Rights Committee.

[52] Konaté Judgement, paras. 163-164.

[53] Konaté Judgement, para. 164. It is notable that the African Court also stated that lesser criminal sanctions such as fines are also subject to the necessity and proportionality test and may be in violation of the African Charter and other international human rights instruments. Ibid, para. 166.

[54] Ingabire Judgement, paras. 142, 144.

[55] Ingabire Judgement, para. 160.

[56] Ingabire Judgement, paras. 158-159.

[57] Ingabire Judgement, para. 142.

[58] Ingabire Judgement, para. 143.

[59] Ingabire Judgement, para. 148.

[60] Ingabire Judgement, para. 161.

[61] Ingabire Judgement, para. 162.

[62] Ingabire Judgement, para. 162.

[63] Ingabire Judgement, para. 163.

 

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