Decriminalising libel and related offences: the approach of the African Commission on Human and Peoples Rights

By Solomon T. Ebobrah 1 Introduction In its advocacy material for decriminalising defamation, the International Federation of Journalists (IFJ) records at least five cases of journalists that were arrested, detained and charged with different offences related to criminalisation of freedom of expression.1 Between June and October 2009, there have also been reports of journalists facing various forms of criminal charges associated with their enjoyment of the right to freedom of expression. This trend is not new as there have been similar cases around issues of sedition and publication of seditious materials, criminal libel and defamation, insult laws, publication of falsehood and insulting the judiciary that can be found all over the African continent. Considering that the right to freedom of expression is expressly guaranteed in the African Charter on Human and Peoples Rights (African Charter), an important question that arises is: what are the outer limits of freedom of expression as guaranteed in the African Charter? From an African perspective, the question posed above is even more relevant as the rights guaranteed in the African Charter are expected to be enjoyed against the background of an African traditional value system that emphasises respect for authority and communal existence over and above individual claim to, and enjoyment of rights. 2 However, a further question that emerges is whether, in the face of the acclaimed universality of human rights, an African construction and understanding of the right to freedom of expression differs (or should differ) significantly from the construction and understanding
1

Decriminalising defamation: an IFJ resource for defeating criminal defamation (2005). The publication refers to a 2005 conviction in Algeria of a journalist on charges of criminal defamation for offending the head of state and insulting the president of the republic. In the same year, 2005, another journalist was reportedly convicted in the Democratic Republic of Congo for defamation. The report also makes reference to convictions or trials in Kenya, Sierra Leone and Tunisia. 2 Generally, see J Cobbah, African values and the human rights debate: an African perspective (1997) 9 Human Rights Quarterly 309

of the concept as prevalent in other human rights systems. In order to contribute to the search for answers to these and other questions, this paper examines how the main human rights supervisory organ in the African human rights system has addressed issues of criminal libel and defamation, with the aim of identifying how freedom of expression is understood in the context of the African Charter. The examination explores both the jurisprudence of the African Commission on Human and Peoples Rights (African Commission) and statements made by the African Commission and its agents in nonjudicial contexts. 2 Scope of the right to freedom of expression in the African Charter According to the African Charter, Every individual shall have the right to receive information and Every individual shall have the right to express and disseminate his opinion within the law.3 In this form, the guarantee of freedom of expression in the Charter is very bare but not radically different from the form in which the right is protected in comparative regional human rights instruments.4 An important difference in the formulation of the right to freedom of expression in the African Charter is that, even though it subjects the right to within the law, and to the duties set out in articles 27 and 28 of the African Charter, it does not contain any general derogation clauses. In other words, there is no room in the African Charter for state parties to derogate from the obligation to guarantee freedom of expression, even where the state is faced with war, in a state of emergency or in any other unusual situation.5 While it does not contain any general derogation clause, the African Charters insistence that the right of individuals to express and disseminate opinion should be done within law is a clawback clause that had ignited some concerns. It would be noticed that the equivalent provision in the African Charter on the Rights and Welfare of the Child
3 4

See art 9(1) and (2) of the African Charter. Art 19 of the Universal Declaration of Human Rights, art 19 of the International Covenant on Civil and Political Rights, art 10 of the European Convention on Human Rights and art 13 of the American Convention on Human Rights are all instructive in this regard. 5 See the decision of the African Commission in Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) 235. P Nnaemeka-Agu, Freedom of expression and of the press and the African Charter (1993) 19 Commonwealth Law Bulletin 1761

(African Childrens Charter) which guarantees the right of a category of children to freedom of expression contains a similar restriction. However, the right to receive information is not restricted by the phrase within the law. The question is left open whether the right to receive information is subject to the duties laid out in articles 27 and 28 of the African Charter. In practical terms, considering that the reference to law in the phrase within the law relates to national law, can or should the enjoyment of the right to freedom of expression be subject to every conceivable national law in every given case? Secondly, should the right to receive information be subject to respect for other human beings, the community, the state, the international community and to issues of national peace and security? The answers to these queries would to a large extent, determine the scope of the right to freedom of expression in the African Charter. The African Commission has used both the opportunity presented by its individual communications procedure and its promotional mandate to formulate principles for the enjoyment of Charter-based rights to clarify the scope of the right. The form in which the right is understood by the African Commission further determines how the Commission perceives or would perceive complaints of criminalisation of freedom of expression. In its early decisions in communications brought before it alleging violation of article 9 of the African Charter, the African Commission tried to define what the right to freedom of expression entails in the context of the Charter. Thus, in Constitutional Rights Project and Others v Nigeria6 the Commission emphasised that:
Freedom of expression is a basic human right, vital to an individuals personal development and political consciousness, and participation in the conduct of public affairs in his country. Under the African Charter, this right comprises the right to receive information and express opinions.

In essence, the Commission links the enjoyment of the right to freedom of expression to other rights in the Charter, particularly the right to political participation and what can loosely be referred to as a the right to personal development. Further, the African Commission sees a link between the two limbs of the right, that is: the right to receive information and the right to express information. As would become evident, this leads to a situation where deprivation of the one right automatically leads to deprivation of the other even though the one is not subject to enjoyment within the law in the strict sense.
6

(200) AHRLR 227 (ACHPR 1999).

Pushing its robust and unrestricted understanding of article 9 further in Law Office of Ghazi Suleiman v Sudan (II)7 the African Commission adopted the jurisprudence of the Inter-American Court of Human Rights and held that freedom of expression is a cornerstone upon which the very existence of a society rests.8 Agreeing with the InterAmerican Courts view that a society that is not well informed is not a society that is truly free9, the African Commission concluded that a speech that contributes to political debate must be protected since it it is of special value to society and deserving of special protection.10 The summary of the Commissions overall position would therefore be that freedom of expression is essential for personal development as much as it is crucial for the growth of society and states ought not to unduly restrict expression that stimulates political debate and growth. This much is evident in the 2002 elaboration of article 9 where in its Declaration of Principles on Freedom of Expression in Africa (Declaration), the African Commission couched the right as freedom of expression and information which includes seeking, receiving and imparting information and ideas orally, in writing or print, through art and other forms of communication.11 In defining the scope of the clawback in the phrase within the law, the African Commission has sought to reduce the potentially restrictive effect of that formulation. Hence, in Constitutional Rights Project and Another v Nigeria12 the Commission stressed that governments should avoid the restriction of rights. The Commission took a position that suggested that within the law could not be read to mean ad hominem legislation that targets a specific individual or legal entity.13 The Commission then emphasised in Media Rights Agenda and Others v Nigeria that the phrase in article 9(2) of the African Charter does not mean that national law can set aside the right to express and
7 8

(2003) AHRLR 144 (ACHPR 2003). As above at para 49 relying on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, 13 November 1985, Inter-Am Court HR Ser AN 5 at para 70. 9 As above. 10 Law Office of Ghazi Suleiman v Sudan (II) (n 7 above) paras 50 and 51. 11 Principle 1 of the of the Declaration. 12 (2000) AHRLR 191 (ACHPR 1998) 13 As above at paras 57 59. See also Constitutional Rights Project and Others v Nigeria (n 6 above) on the exclusion of ad hominem legislation for the prohibition of newspaper houses..

disseminate ones opinions.14 In the Commissions view, allowing national laws to set aside the right would make the protection of the right to express ones opinions ineffective.15 The Commission stressed further that the purpose of article 9 would be defeated if national laws were allowed to prime the international protection guaranteed in the African Charter. The wisdom of the African Commissions position in the Media Rights Communication cannot be faulted as the phrase within the law has a clear potential for being abused in favour of laws criminalising freedom of expression or specifically aimed at the proscription of offending media houses. However, notwithstanding the progressive approach of the Commission in relation to the clawback provision in article 9, the Commission could not avoid the effect of articles 27 and 28 of the African Commission. Hence, in the same Media Rights Communication, the Commission emphasised that the only legitimate reasons for limitations to the rights and freedoms of the African Charter care found in article 27(2), that is that rights in the Charter shall be exercised with due regard to the rights of others, collective security, morality and common interest.16 The Commission sought to ameliorate the effect of this dictum when it added limitation of rights must be founded in a legitimate state interest and the evils of limitations must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained.17 The African came to the conclusion that a limitation may never have as consequence that the right itself becomes illusory.18 Against the background of articles 27 and 28 of the African Charter and the jurisprudence of the African Commission, read in the context of African customs and traditional value systems, should the right to freedom of expression be limited only because officials of state feel offended by ideas and opinions expressed by anyone? The African Commission addressed this question to some extent in the Media Rights communication when it stated that people who assume highly visible public roles must necessarily face a higher degree
14 15

Media Rights Agenda and Others v Nigeria (n 5 above) para 66. As above. 16 As above, especially at paras 67 -69. 17 As above. 18 Media Rights Agenda and Others v Nigeria (n 5 above) para 70.

of criticism than private citizens, otherwise public debate may be stifled altogether.19 The Commission went further to stress that it is important for the conduct of public affairs that opinions critical of the government be judged according to whether they represent a real danger to national security. In the specific context of the communication, the Commission was of the opinion that a resort to libel action would have been more appropriate than seizure of the entire copies of the offending news media.20 In essence, the Commission was proposing that resort to civil action in the event of dissatisfaction with the content of expression was preferable and more attuned to respect for freedom of expression than a resort to criminal prosecution and reprimand. In the face of this position, it would be valuable to assess how the African Commission has reacted to the criminalisation of freedom of expression in African states. An important point to bear in mind is that as a result of colonial experience, African leaders have at their disposal severely restrictive legislations in the form of criminal laws that hamper freedom of expression.21 The Commissions reaction to these laws for now, remains the highest form of judicial or quasi-judicial response at the international level in the continent to the criminalisation of freedom of expression. 3 Mechanisms for addressing criminalisation of free expression in the African human rights system Related to the dual nature of its mandate, there are two broad forms in which the African Commission responds to the criminalisation of freedom of expression in the continent. The first is by way of non-judicial measures linked to the Commissions promotional mandate even though some of such actions are protective in nature and blur the distinction between the promotional and protective mandates of the Commission.22 In terms of its promotional mandate, one of the most far-reaching actions by the Commission is the inclusion of Principle XIII in the Declaration. By that provision, the
19

Media Rights Agenda and Others v Nigeria (n 5 above) para 74. Media Rights Agenda and Others v Nigeria (n 5 above) para 75.

20

21

See generally, CE Welch, The African Charter and freedom of expression in Africa (1998) 4 Buffalo Human Rights Law Review 103
22

By art 45, the promotional and protective mandates of the African Commission are laid out.

Commission invites states to review all criminal restrictions on content to ensure that they serve a legitimate interest in a democratic society. It further stipulates that freedom of expression should not be restricted on public order or national security grounds unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression.23 The primary aim of the Declaration is to guide legislative action by states and in that regard, this provision is of great value. The challenge lies in getting states to take the provision into account in the formulation of policies and legislations. Also in a promotional context, the use of press releases by the African Commission acting through the Special Rapporteur on Freedom of Expression in Africa has been vital in reminding states of the need to strike a balance between the right in article 9 and the duties in articles 27 and 28 of the African Charter. Standing in the middle between promotional and protective measures is the use of appeal letters by the African Commission through the Special Rapporteur. In this regard, the Commission has been able to invite some states to undertake legislative reforms to decriminalise freedom of expression. In the area of exercise of its protective mandate, the African Commission has not taken full advantage of the individual communications procedure to define and push for decriminalisation of freedom of expression. However, there is evidence of some action in that respect. Although in the context of the Commissions own determination of the law in relation to its admissibility procedure, the Commission has emphasised that a balance must be struck between the right to speak freely and the duty to protect state institutions.24 The Commission insisted in that although it is necessary to exercise freedom of expression without deliberately injuring state institutions, there was also a duty to ensure
23 24

Principle XIII of the Declaration. Communication 284/2003 Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe para 90.

that the right in article 9 is not violated. The Commission recognised that the line between genuine criticism of the judiciary and insulting language has grown thinner.25 Similarly, in Scanlen and Holderness v Zimbebwe26 the Commission acknowledged that the right to freedom of expression was not absolute but emphasised that the concept of public order in a democratic society demands the greatest possible amount of information. It is the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole that ensures the public order.27 This progressive approach of the Commission is diluted by other pronouncements that tend to suggest that the Commission recognises the need for certain criminal action against freedom of expression. For instance, in the foregoing communication, the Commission acknowledged the presence of civil and other legal sanctions in the event of injury caused or infraction of the law by journalists.28 While it is conceded that this may merely be a practical attitude to existing law, it can also be interpreted by some states as endorsement. Further, in Zimbabwe Lawyers for Human Right and Another v Zimbabwe29 the Commission stated that the freedom of expression cannot be enjoyed by publishing falsehood. Notwithstanding these isolated expression, the overall approach of the Commission arguably tilts towards encouraging decriminalising freedom of expression even though this is yet to come out clearly in it jurisprudence. 4 Decriminalisation: legislative prerogative or judicial/quasi-judicial responsibility? In view of the discourse above and considering the attitude of national executive and legislative authorities towards self-preservation and protection, one needs to ask whether it is not preferable to rely on judicial and quasi-judicial action to protect the right to freedom of expression by decriminalising libel and defamation.

25 26

As above, at para 93. Communications 297/2005 at para 103. 27 As above para 110. 28 As above at para 102. 29 Communication 294/2005

5 Conclusion This contribution has tried to evaluate how the African human rights system perceives the question decriminalising freedom of expression. It can be concluded that whereas the provisions of the African Charter does very little to encourage such action, the African Commission has sought to apply its promotional and protective mandates in favour of encouraging national decriminalisation of freedom of expression.