I.

The subsequent punishment of TTV for airing out its legitimate grievances against the
governmentis violative of the Freedom of Expression as enshrined in the ICCPR.

For exposing on national TV certain shady deals that the government was privy to, and
responding to allegations that the state authorities were virtually unhampered in their propensity
for abuse, the government of Turustein decided to impose sanctions on TTV and imprisonTanja
Trotter.
The government justified this move by claiming that when TTV came up with its series of
expositions, its primary thrust was to bring the country down and overthrow the existing
government1. If the government was encased in its own impenetrable bubble, then this would
have been a fine assertion but clearly, this is not the case.
The Turustein government is a signatory to the International Convention on Civil and
Political Rights2 and having entered into this pact, it is bound to respect the specific provisions
that are contained within this commitment.
Article 19 of the ICCPR is a guarantee that Freedom of Expression is a protected right. As a
matter of fact, Dr. Agnes Callamard, who is currently Article 19s Executive Director, once said
in her 2008 report3 that Freedom of expression is essential to the democracy and the
democratization process. It forms a central pillar of the democratic framework through which all
rights are promoted and protected, and the exercise of full citizenship is guaranteed. A robust
1Compromis, paragraph 7.
2Paragraph 13, supra.
3Callamard, Agnes. Freedom of speech and offence: why blasphemy laws are not the

appropriate response. Issue 18, Equal Voices magazine, June 2006

democratic framework in turn, helps create the stability necessary for society to develop in a
peaceful and relatively prosperous manner. Through freedom of expression, politics can unfold
in an unfettered and constructive manner.
The reason why Freedom of Expression is important is because it empowers the citizens
to make its government accountable, inasmuch as it also stirs people into action once excesses by
government authorities happen. Nothing is more tragic than a public that is paralyzed by fear and
dread, because in such a case, the government becomes emboldened to arbitrarily silence its
critics and perpetuate its own brand of draconian leadership.
Corollary to this universally-esteemed value, there had been numerous cases that were
decided by several supranational courts that have jurisdiction over the enforcement of this
protected right. The Inter-American Court of Human Rights (IACHR) for example has a long list
of cases that has affirmed the right of media to expose certain anomalies of government. In the
2001 Baruch Bronsten vs. Peru4 case where there was an attempt to gag the media from exposing
government anomalies, the Court had the occasion to note that it is essential for journalists
working in the media to enjoy the protection and independence necessary to fully practice their
profession, since they keep society informed, an essential requirement for it to enjoy full
freedom.
In another ruling which traverses the same line of reasoning, but made by the European
Court on Human Rights (ECtHR), the Court was of the impression that a public debate on TV
concerning a matter of public concern should be encouraged by the government, because this is a
basic manifestation that the government adheres to its democratic commitments5.

4Baruch Ivcher Bronstein v. Peru, Case 11.762, Report N 20/98, Inter-Am. C. H. R.,

OEA/Ser.L/V/II.95 Doc. 7 rev. at164 (1997)

As can be gleaned from these two cases, it is apparent that enabling citizens, particularly
the media, to air out their concerns about the government is an integral part of democratic
discourse. For nothing is more tragic than a people who invariably submit that they are helpless,
nay, voiceless, even when they have the right to freely express themselves. Subsumed under this
reasoning therefore, is the indispensable need for the Turustein government to expand the
democratic space, so its citizens can freely exercise the democratic prerogatives that are due
them.
In light of all these contentions therefore, it is the submission of the Petitioners that the
arrest and eventual prosecution of Tanja Trotter contravenes Turusteins commitment to ICCPRs
Article 19, or its commitment to Freedom of Expression.

II. The subsequent punishment of TTV for calling people to rally on the streets is violative
of the Freedom to Assemble as enshrined in the ICCPR.

The Petitioners also assail the fact that the Turustein government apprehended TTV and its
personnel for their calls of protests against the government. This call was made after TTV was
able to obtain pieces of information regarding the governments misappropriation of foreign aids.
Moreover, when they (TTV) tried to compel the government to be more transparent in its
dealings, they were met with stern resistance and even antagonism.
Before a discussion on why this constitutes a violation to Turusteins commitment to
ICCPR is to be delved into, it is the submission of the Petitioners that the fact that the people
rallied on the streets, subsequent to the calls made by TTV, only means one thing: that the
5Judgment by the European Court of Human Rights (Second Section), case of Mamre v.

France, Application no. 12697/03 of 7 November 2006

societal frustration has become too great, such that once an impetus for public protest was
sparked by TTV, it did not take long for Turusteins citizens to boldly display their repulsion to a
government that has long justified its exclusivism by hiding underneath the mantle of despotism.
Clearly, the abrasive stance taken by Turusteins government to the public outcry was an
upfront to their commitment to Article 21 of the ICCPR. This Article6states, viz:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or public safety, public
order (ordre public), the protection of public health or morals or the protection of the rights and
freedoms of others.

Again, Turusteins ratification of the ICCPR compels it to uphold this cherished ideal. But
before the Petitioners will enmesh this freedom with the case at hand, it is imperative that there be a
discussion as to the relevance of this right, and how the stifling of the same can be detrimental to the
democratic progression of any country that embraces the provisions of the ICCPR.

The Freedom to Assemble has its roots in the United States of America, and it goes back
to the Declaration and Resolves of the First Continental Congress7 on October 14, 1774.The
Declaration stated, among other things, that the inhabitants of the English colonies in NorthAmerica, by the immutable laws of nature, the principals of the English constitution, and the
6International Covenant on Civil and Political Rights (ICCPR), adopted by the General

Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in
accordance with Article 49
7Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction.New Haven: Yale

University Press, 1988

several charters or compacts, have the following rights: They have a right peaceably to assemble,
consider their grievances, and petition the king: and that all prosecutions, prohibitory
proclamations, and commitments for the same are illegal.
Initially, the right to assembly was thought of as inferior, but as history progressed, it
eventually created a niche of its own. As a matter of fact, this graduation can be seen by the
evolution of American jurisprudence on this matter, from the case of United States v.
Cruikshank8, where the Supreme Court said that the right of the people peaceably to assemble
for anything else connected with the powers and duties of the national government, is an attribute
of national citizenship, and as such, under the protection of, and guaranteed by, the United States,
up until the celebrated case of Edwards v. South Carolina9, where the US Supreme Court had the
occasion to note that a disorderly crowd, or the fear of one, cannot be used to stop a peaceful
demonstration or cancel the right of peaceable assembly.
Corollary to this evolutionary growth, it is widely considered as one of the pillar
freedoms in the ICCPR as a matter of fact, this has been thoroughly nuanced by the different
authorities of this enshrined right.
In a paper10 presented by the International Service for Human Rights in 2009, this
ICCPR-affiliated organization succinctly worded the modern requisites for this right to be
exercised. It stated thus: Therefore, in order to fully exercise the right to freedom of assembly, a
balance between the negative and positive obligations of the State must be maintained. This
8United States v. Cruikshank, 92 U.S. 542 (1876)
9Edwards v. South Carolina, 372 U.S. 229 (1963)
10International Service for Human Rights: Right to Freedom of Assembly, Human Rights

Defenders Briefing Papers, 2009

means that a State should refrain from interference with freedom of assembly (a negative
obligation), as well as take positive steps towards ensuring protection of freedom of assembly (a
positive obligation). Simply put, this means that in the comprehensive understanding of
supranational courts that have jurisdiction of cases involving violations of this right, it is not
sufficient that the government allows its citizens to peacefully assemble, because more
importantly, it should create the necessary conditions for its citizens to do so.
In a 2001 paper11 submitted by the Northern Ireland Human Rights Commission entitled
Parades, Protests, and Policing, which was commissioned by the European Commission on
Human Rights, the authors claimed that the Freedom to Assemble is essential in a democracy, so
much so that if this freedom is to be momentarily made inaccessible by the authorities, there has
to be pressing social issues that necessitate the suspension of this right.
The experience of Sub-Saharan Africa is also quite telling in how Freedom to Assemble
has been liberally construed as to do away with statutes and practices that stifle this right. The
Sub-Saharan region, according to Dr. Bonaventure Rutinwa12,who is a consultant to Article 19s
Africa Programme, used to be populated by colonized countries, and one of the more potent
manifestations of the colonial clutches were laws that tended to abridge the Freedom to
Assemble.
However, when the vestiges of colonial subjugationhad dissipated due to the liberation of
most Sub-Saharan countries, thejudiciaries around the sub-continent have taken advantage of the
changed political-legalenvironment to take a bold stance in protecting human rights. From east to
11Northern Ireland Human Rights Commission, Parades, Protests, and Policing, March 2001,

North Street, Belfast

12Dr. Bonaventure Rutinwa, T: Unions, NGOs and Political Freedom in Sub-Saharan Africa,

Global Campaign for Free Expression Series, March 2001, Africa

west, judiciarieshave used powers conferred on them by the bills of rights to strike down laws
found to be inbreach of fundamental rights and freedoms, even on the basis of international
instruments signedbut not yet ratified by the relevant parliaments. Among the statutes that have
been so purged arethose which impinged on freedom of association and assembly; they have
been declared "colonialrelics" which no longer have a place in Africa13.
It is thus apparent, from the universality of this rights application, that no democracy can ever
exist if it severely restricts its citizens to air out their grievances against the government.
Although concededly there are instances when the government has valid grounds to prevent
demonstrations, especially when public safety and the states survival so requires14, the general
presumption has always been that of upholding the citizens right to peacefully assemble.
If one takes a look at the dearth of experiences that most modern-day countries have in
relation to Turusteins current political predicament, it is easy to point out that the courts have
been more sympathetic to the Right of Assembly when contraposed with the states prerogative
to trample upon the same.
In May 2007 for example, the ECtHR admonished the government of Poland when it
dissolved a protest staged by Foundation for Equality, a Polish group, on the ground that it
violated its domestic Administrative Law15.
Just very recently, the African Court on Human and Peoples Rights (ACtHPR) flexed its
muscles for the very first time, in light of the police brutality that were perpetrated against those
13pp. 16-17, supra.
14Northern Ireland Human Rights Commission, Parades, Protests, and Policing, March 2001,

North Street, Belfast, page 37

15Baczkowski&Ors v Poland [2007] ECHR Application No 1543/06 (3 May 2007)

who protested against Libyan leader MubaraqGhadaffis regime. In an unprecedented move by

the ACtHPR, it unanimously ordered the following provisional measures: (1) That Libya must
immediately refrain from any action that would result in loss of life or violation of physical
integrity of persons, which could be a breach of the provisions of the African Charter or of other
international human rights instruments to which it is a party; and (2) That Libya must report to
the ACtHPR within a period of 15 days from the date of receipt of the Order, on the measures
taken to implement it16.
In the case at hand, it is apparent that the aim of the protesters is to compel the
government to be more transparent and truthful in its affairs a perfectly valid outcry, especially
so that the protestations were made within the context of a country that adheres to participatory
democracy.
Furthermore, in Turusteins case, the public outcry was a spontaneous act of dissidence,
with the end goal of making the government answer to the allegations hurled against it. It was
not an exercise of pure and senseless anarchy, since its fomenting was caused by the societal
explosion that had ensued shortly after damning expositions were made.
Again, and in relation to the conclusion of the first argument, the freedom to assemble
has a two-fold purpose: first, it aims to orient the ordinary citizen to the workings of his
democratic society; and second, it serves as a potent check mechanism so the governments
tendency to abuse its authority is rightfully mitigated.
In light of these premises established for this argument therefore, it is the humble
submission of the Petitioners that the arrest and eventual prosecution of Tanja Trotter
16Gaddafi Regime Africa Court, http://www.guardian.co.uk/world/2011/mar/30/gaddafi-regimeafrica-court.

contravenes Turusteins commitment to ICCPRs Article 21, or its commitment to Freedom of

Expression