THE SPECIAL RAPPORTEUR ON FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION IN AFRICA
By Adv. Pansy Tlakula
Presented to the 48th Ordinary Session of the African Commission on Human and Peoples’ Rights
Banjul, The Gambia, 10 -24 November 2010
1. This Report outlines the activities undertaken by the Special Rapporteur on Freedom of Expression and Access to Information in Africa (the Special Rapporteur) during the intersession period May 2010 to November 2010.
2. This Special Mechanism was established at the 36th Ordinary Session of the African Commission on Human and Peoples Rights (ACHPR or African Commission) held in Dakar, Senegal from 23 November to 5 December 2004.
3. Commissioner Pansy Tlakula was appointed as Special Rapporteur at the 38th Ordinary Session of the African Commission held in Banjul, The Gambia from 21 November to 5 December 2005. She was reappointed at its 42nd Ordinary Session held in Brazzaville, Republic of Congo, and 46th Ordinary Session which took place in Banjul The, Gambia respectively.
4. Any further background information and information related to the Terms of Reference of the Special Rapporteur can be found in the Resolution establishing the mandate and her previous Reports available at www.achpr.org.
5. As is the pattern in her previous reports, this Report is divided into five parts: Part I covers the activities undertaken by the Special Rapporteur in the period under review; Part II gives an overview of the status of the adoption of Access to Information legislation in Africa; Part III deals with the situation of freedom of expression and access to information in the continent during the period under review; Part IV addresses the challenges faced by the Special Rapporteur in realising her mandate; and finally Part V presents the conclusions and recommendations of the Special Rapporteur.
Activities undertaken in the period under review
6. The Activities of the Special Rapporteur during the reporting period is divided into two sections: Section 1 deals with briefings/advisory, workshops and meetings attended by the Special Rapporteur. In Section 2, she reports on the letters of Appeal she forwarded to States Parties to the African Charter (hereafter referred to as States Parties) on the situation of freedom of expression and access to information that was brought to her attention.
Briefings, Workshops and Meetings
Briefing/Advisory at the Federation of Journalists (IFJ) World Congress in Cadiz, Spain
7. From 25 to 28 May 2010, the Special Rapporteur participated in a Panel Discussion on ‘Human Rights of Journalism,’ at the International Federation of Journalists (IFJ) World Congress in Cadiz, Spain.
8. During the Panel Discussion, she talked about the right to freedom of expression and access to information, especially in relation to how they are promoted and protected under the African Charter on Human and Peoples’ Rights (the African Charter), the role of the African Commission and the Declaration on the Principles of Freedom of Expression in Africa (the Declaration).
2nd World Journalism Education Congress and 2010 Highway Africa Conference
9. On 5 July 2010, the Special Rapporteur attended the 2nd World Journalism Education Congress and 2010 Highway Africa Conference in Grahamstown, South Africa, where she made a presentation on “understanding the mandate of the Special Rapporteur on Freedom of Expression and Access to Information in Africa: A medium to effective advocacy for Journalists in Africa.”
10. In her presentation she gave a general idea about her mandate as Special Rapporteur, and stated that freedom of expression and access to information are important tools towards effective journalism.
11. During her presentation, she also highlighted the decision of the ECOWAS Court in the Chief Ebrima Manneh’s case to portray the role of Sub Regional Courts in promoting the right to freedom of expression and access to information in Africa. She also gave an overview of the rights of Lesbians, Gays, Bisexuals, Transgenders and Intersex (LGBTI) as an emerging free expression and free association issue, and the need to include freedom of expression and access to information in the curricular of schools of journalism.
Seminar on Media and Elections in SADC- challenges and opportunities
12. From 19 to 24 July 2010, the Special Rapporteur attended a Seminar on Media and Elections in SADC- challenges and opportunities, organised by the Electoral Commission Forum of SADC.
13. She made a presentation on “The state of ratification of the African Charter on Democracy, Elections, and Governance in the SADC region.”
Briefing Session in Freedom of Information Litigation Meeting
14. From 16 to 18 August 2010, the Special Rapporteur attended a Freedom of Information Litigation meeting in Nairobi, Kenya. During the meeting, she made a presentation on “Role and Mandate of the Special Rapporteur on Freedom of Expression and Access to Information in Africa.”
15. In her presentation, she highlighted Article 9 of the African Charter which entrenches the rights to freedom of expression and access to information, and the Declaration which elaborates on Article 9. She also mentioned various Resolutions that have been adopted by the African Commission related to freedom of Expression and Access to Information in Africa since 2006.
Open Government Policy Summit
16. From 30 August to 2 September 2010, the Special Rapporteur attended the Open Government Policy Summit organised by the Rivers State, in Port Harcourt Nigeria. She made a presentation on the “Role & Agenda of the Special Rapporteur on Freedom of Expression and Access to Information in Africa.”
Right to Know Campaign Launch
17. On 15 September 2010, the Special Rapporteur participated in the Right to Know Campaign launch organised by the Freedom of Expression Institute (FXI) in Johannesburg, South Africa. She made a presentation on “Regional Perspectives on Freedom of Expression and Access to Information.”
18. During her presentation, while highlighting Article 9 of the African Charter as the legal basis for the protection and promotion of the right to freedom of expression and access to information, including the Declaration, she also mentioned her Plan of Action aimed at the realisation of these rights in the continent. Amongst other things, she stated that she has been lobbying with States Parties to adopt Access to Information Laws.
Regional Training Workshop on Media and Elections for Senior Journalists from Eastern and Southern Africa
19. On 28 September 2010, the Special Rapporteur attended the Regional Training Workshop on Media and Elections for Senior Journalists from Eastern and Southern Africa, organised by the UNDP. She made a presentation on “Freedom of Expression and Access to Information: A requisite for Democratic Elections in Africa.”
20. During her presentation, the Special Rapporteur noted that free and fair elections, and human rights are cardinal principles of democracy, thus practical realisation of the right to freedom of information requires that constitutional guarantees are implemented through detailed legislative regimes.
Expert meeting on drafting a model for Freedom of Information Law in Africa
21. From 29 to 31 October 2010, the Special Rapporteur attended an Expert meeting on drafting a model for Freedom of Information Law in Africa.
22. The Centre for Human Rights, University of Pretoria organised the workshop in collaboration with the Special Rapporteur and the Open Society Justice Initiative (OSJI).
23. At the end of the meeting, Principles and Guidelines that would form part of the model Law were adopted and a Workshop Group as well as a drafting Committee was established to start the drafting process. It is hoped that the model law will be adopted by the African Commission in 2011.
Brainstorming Meeting on strengthening freedom of expression under the African Peer Review Mechanism (APRM)
24. On 12 November 2010, the Special Rapporteur attended a Brainstorming Meeting on strengthening freedom of expression under the African Peer Review Mechanism (APRM), organized by Article 19, in collaboration with her mandate.
25. The meeting had three main objectives: To strengthen the cooperation and working relationship between the mandate of the Special Rapporteur and the APRM; Ensure that issues related to freedom of expression and access to information are incorporated in the APRM Questionnaire and Indicators; and to strengthen the cooperation between the African Commission and the APRM.
26. The Procedures of the APRM were also discussed during the meeting, including the fifth and final stage. These stages require that after the Report of the APRM has been considered by the Heads of State and Government of the participating countries, it should be formally and publicly tabled in key regional and sub-regional structures such as the Pan-African Parliament, the African Commission, the envisaged Peace and Security Council and the Economic, Social and Cultural Council, of the African Union(AU)
27. A number of recommendations emanated from the meeting. They include amongst others, that:
· The cooperation between the APRM, and the African Commission should be institutionalised;
· The Secretariat of the APRM should make reference to AU instruments, including the Declaration, and bodies that both mechanisms can work with;
· A focal person should be appointed within the African Commission to coordinate the activities of the latter with those of the APRM;
· There should be complementarity between the reports of the African Commission and APRM reports. For instance, promotional mission reports of the African Commission should be one of the materials for country reviews by the APRM;
· There should be cooperation between all institutions that have a human rights mandate generally and specifically those with a mandate to promote and protect the right to freedom of expression and access to information;
· Civil society actions related to the right to freedom of expression and access to information should be taken on board by the APRM;
· Guidelines on freedom of expression and access to information should be included in the APRM review; and
· Civil society and media professionals should be involved in the APRM process;
28. In line with her mandate to “make public interventions where violations of the right to freedom of expression and access to information have been brought to her attention, including by issuing public statements, press releases, and sending appeals to Member States asking for clarifications,” the Special Rapporteur forwarded letters of Appeals to the Republic of Zambia, Republic of Rwanda, and the Republic of South Africa, respectively.
29. On 9 June 2010, the Special Rapporteur received alleged reports regarding the conviction and sentencing of Mr. Fred M'membe, the Editor-in-Chief of the Zambian newspaper, the Post. It was alleged that Mr. M'membe was convicted on 5 June 2010, for “contempt of court” and sentenced to four months imprisonment with hard labour, and his newspaper was also found guilty of contempt and sentenced to four months imprisonment for publishing an op-ed on the prosecution of the Editor of the Post for distributing “obscene material”.
30. Reports alleged that the said Editor had sent two photographs of a woman giving birth in the street to the Zambia Minister of Health. Although the pictures were not published, in finding Mr. M’membe guilty, the magistrate held that the publication of the op-ed constituted “contempt of court” since the question of whether the photographs were obscene or not was yet to be decided by the Court. According to reports, in convicting Mr. M’mbembe, the Court relied on Section 116(1) (d) of the Zambian Penal Code which criminalises speech or writing that could prejudice opinion regarding ongoing judicial proceedings.
31. In the letter of Appeal transmitted to the President of the Republic of Zambia, H.E Rupiah Banda, on 9 June 2010, the Special Rapporteur expressed concern of the fact that Section 116 (1) (d) of the Zambia Penal code, which was used to convict Mr. M’membe, is incompatible with regional and international guarantees of freedom of expression provided for in the African Charter, the Declaration, and other human rights instruments to which Zambia is a party. She urged the President of Zambia to repeal this law and bring it in line with international standards. She also appealed to the President of the Republic to use his power to pardon Mr. M’membe.
32. The Special Rapporteur notes that she has still not received a response from the Republic of Zambia with respect to her Appeal.
33. On 26 July 2010, the Special Rapporteur sent a letter to the President of Rwanda, H.E Paul Kagame with respect to the alleged alleged assassination of Mr. Jean-Léonard Rugambage, acting Editor of the Rwandan Umuvugizi Newspaper.
34. The allegations which were received by the Special Rapporteur on 24 June 2010, stated that Mr. Jean-Léonard Rugambage, was brutally murdered in front of his house. It was alleged that before his murder, Mr. Rugambage had reported to friends and colleagues that he was being followed and that he had received telephone threats. Reports conveyed that Mr. Jean-Bosco Gasasira, the exiled Editor of Umuvugizi, told the Voice of America that he believed the killing was reprisal for a recent story alleging government involvement in the shooting of a former Rwandan army commander in South Africa.
35. Furthermore, according to reports, Mr. Rugambage was a Reporter for the now-defunct independent tabloid Umuco, before joining the Umuvugizi Newspaper, and that he had been imprisoned for 11 months, after producing a story alleging mismanagement and witness tampering in Rwanda's traditional courts for suspects of the 1994 genocide. It was also reported that, the UmuvugiziNewspaper’s right to publish was suspended by the Rwandan Media High Council in April 2010, and that its website became inaccessible to domestic visitors when it moved online.
36. In her letter of Appeal to the President of Rwanda on 26 July 2010, the Special Rapporteur recalled Principles I (1) and II of the Declaration which state that freedom of expression and information, “is a fundamental and inalienable human right and an indispensable component of democracy” and “any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society”.
37. She also mentioned Principle XI (1) and (2) of the Declaration, which provide that:
1. Attacks such as the murder, kidnapping, intimidation of and threats to media practitioners and others exercising their right to freedom of expression, as well as the material destruction of communications facilities, undermines independent journalism, freedom of expression and the free flow of information to the public.
2. States are under an obligation to take effective measures to prevent such attacks and, when they do occur, to investigate them, to punish perpetrators and to ensure that victims have access to effective remedies.
38. She urged the Government of the Republic of Rwanda to inform her of the progress it has made in the investigation of Mr. Rugambage’s death in compliance with Principle XI of the Declaration. She also urged the Government of the Republic of Rwanda, to immediately lift the ban imposed on the Umuvugizi Newspaper, especially with the upcoming elections in the country, to ensure freedom of expression, access to information and opinion which form the basis of free and fair elections.
39. It should also be noted that the Special Rapporteur still awaits a response from the Government of Rwanda.
40. In line with her mandate to “analyse national media legislation, policies and practice within Member States, monitor their compliance with freedom of expression and access to information standards in general and the Declaration of Principles on Freedom of Expression in Africa in particular and advice Member States accordingly,” the Special Rapporteur sent a letter of Appeal to the President of the Republic of South Africa, H.E Jacob Zuma, on 23 September 2010, expressing her concerns with respect to certain provisions of the proposed South African Protection of Information Bill of 2008(hereafter, referred to as the Bill).
41. While commending the Government’s commitment to promoting and protecting the right to freedom of expression and access to information in the Republic of South Africa, as well as the progress it has made over the years, in securing respect for the right to freedom of expression and access to information in the country, she made preliminary comments on the Bill. Her main areas of concern where the “Classification and declassification of information” and the “definition of National Interest and National Security”.
42. With respect to classification and declassification of information, she urged the Government to amend the Bill so as to bring it line with the African Charter, the Declaration and the principle of ‘openness’ that the Bill aims to achieve. She stated that a good approach to rectify these Sections of the Bill would be to give an exception to the penalties imposed on publishing classified information to journalists and whistleblowers by making these provisions subject to public interest override test. This can be justified by the fact that, she said, these two groups are critical custodians of an open and democratic society which South Africa is regarded to be.
43. With regard to the definition of National Interest and National Security, she urged the Government to ensure that the Bill serves a legitimate purpose by reviewing the definition of National Security. Failure to do so, she stated, may impede communication, availability and free flow of information, in violation of Article 9 of the African Charter, the Declaration and other international standards on freedom of expression and access to information.
44. The Special Rapporteur is pleased to note that possible amendments to this Bill are currently discussed by the Parliament of the Republic of South Africa
Status of adoption of Access to Information legislation in Africa
45. As stated in her previous reports, both the right to freedom of expression and access to information are fundamental in realizing the culture of transparency and participation of the public in the political affairs of the State. It is therefore imperative that these rights are ensured in the Constitutions and other national laws of States Parties.
46. In line with the Special Rapporteur’s mandate to “Submit reports at each Ordinary Session of the African Commission on the status of the enjoyment of the right to freedom of expression and access to Information in Africa,” she is reporting on the progress made on the same.
47. She would like to recall that, in her last Activity Report presented to the 47th Ordinary Session of the African Commission which took place from 12 to 26 May 2010, she mentioned the results of the audit she undertook on the adoption of Access to Information legislation on the continent during the reporting period. The Report portrayed that the status quo had not changed from her audit in 2008 because Angola, Ethiopia, South Africa, Uganda and Zimbabwe are still the only countries with Freedom of Information Laws.
48. It is worthwhile to note that the Republic of Liberia which was reported to have a Freedom of Information Bill submitted to the House of Representatives since 18 April 2008, by the Liberia Media Law and Policy Reform Working Group was finally passed into law on 6 October 2010.
49. In this regard, the Special Rapporteur would like to commend Liberia for this progress and hope that other States Parties who still have Bills pending in Parliament will follow suit.
Summary of the situation of freedom of expression and access to information in Africa
50. During the intersession, the Special Rapporteur continued to receive reports on the violation of the right to freedom of expression and access to information in the following countries: Angola, Burundi, DRC, Egypt, Eritrea, Ethiopia, Gabon, Ivory Coast, Western Kenya, Malawi, Mozambique, Namibia, Nigeria, Somalia, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda and Zimbabwe.
51. These reports include: prosecution, kidnapping, imprisonment, harassment and intimidation; extra-judicial killing/murder of journalists and Media Practitioners; unfair press restrictions; banning and destruction of media houses, restrictions to publish newspapers by requiring a license as a precondition, detention of journalists pending investigation in publication crimes, libel and criminal defamation laws etc.
52. The Special Rapporteur notes that, in the last six months, some States Parties have made progress with respect to promoting and protecting the right to freedom of expression and access to information in Africa.
53. In August 2010, the Constitutional Court of Uganda ruled that the sedition law infringes on the public's right to freedom of speech guaranteed under Uganda’s Constitution, and thus abolishing criminal sedition. Following this decision, a Ugandan Magistrates Court in Kampala dismissed sedition charges in October 2010 against former radio presenter Robert Kalundi Serumaga, who faced six counts of sedition for making anti-President statements during the September 2009 Kampala riots. There are currently ten journalists who collectively face 22 sedition charges, some of which have been accumulated since 2005.
54. The Special Rapporteur welcomes the decision of the Constitutional Court, and is looking forward to the dismissal of the other pending cases against the ten journalists. The Special Rapporteur also encourages other African countries to ensure that their defamation laws conform to the standards of Principle XII of the Declaration.
55. Principle XII of the Declaration provides that:
1. States should ensure that their laws relating to defamation conform to the following standards:
· no one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances;
· public figures shall be required to tolerate a greater degree of criticism; and
· sanctions shall never be so severe as to inhibit the right to freedom of expression, including by others.
2. Privacy laws shall not inhibit the dissemination of information of public interest.
56. Despite the work done by the Special Rapporteur to promote and protect the right to freedom of expression and access to information, it has been a Herculean task achieving her purpose due to various challenges, which emanate from the Government, as well as journalists/ Media Practitioners themselves. Some of these challenges include:
· States Parties who continue to ignore the recommendations and appeals of the Special Rapporteur;
· Lack of Access to Information laws in States Parties;
· Continuous attacks on journalists and Media Practitioners;
· Legislative measures that restrict freedom of expression. For instance, censorship laws which make it illegal to write, publish and disseminate literature considered to have a seditious character, and the adoption of archaic defamation and libel laws that imprison journalists who breach them, and restrictive licensing of print journalists;
· Blocking of websites, including news and information websites, and police surveillance of e-mails and internet cafes;
· Poor infrastructure, poverty and illiteracy, lack of general diversity of content in newspapers, and lack of linguistic diversity which limits the media's ability to disseminate information;
· Existing legislations are inaccurate with respect to addressing issues related to freedom of expression and access to information;
· Regulation of the media, either by Government departments or administrative bodies; and
· Continuous failure by some Media Practitioners to adhere to professional and ethical standards of journalism.
Conclusion and recommendations
57. Freedom of expression and access to information form aspects of human dignity, channels to ascertain the truth and the best routes to achieve democracy.
58. Challenges that impede freedom of expression and access to information could be overcome in Africa if the African Charter in general and the Declaration in particular are implemented by States Parties, as well as other international standards to freedom of expression and access to information.
59. Paradoxically, the incorporation of freedom of expression and access to information in the Constitutions of countries has not reduced violations to these rights. This is prompted by the limitations imposed to media freedom by laws relating to sedition, treason, national security, as well as criminal defamation.
60. Although Africa has generally made significant progress in the realization of freedom of expression and access to information, there is still room for improvement. States parties are under an obligation to take practical steps, including through legislation to give effect to the right to freedom of information.
61. The Special Rapporteur therefore calls on all States Parties who do not yet have Access to Information laws to adopt such laws as soon as possible.
62. In view of the fact that the Special Rapporteur has started the process of drafting a model law that can be utilized by States Parties to serve as a benchmark for drafting their national legislations on access to information, she also calls on all States Parties, civil society, and other stakeholders to contribute to the attainment of this goal.
63. The Safety of journalists in some parts of the continent remains a source of concern for the Special Rapporteur. In this regard, the Special Rapporteur welcomes the holding of the Regional Workshop on Safety and Protection of African Journalists that was organised by the Federation of African Journalists in partnership with the African Union Commission in Addis Ababa on 2 to 3 September 2010.
64. The Special Rapporteur hopes that the Declaration on the Safety and Protection of African Journalists that was adopted at the end of the Workshop will be implemented by all concerned.65. With regard to elections, the Special Rapporteur notes that there can hardly be free and fair elections without freedom of expression and free flow of information.
66. She deplores the fact that the African Charter on Elections, Democracy, and Governance (African Charter on Democracy) requires ratification by 15 Member States for it to be effective, but only seven countries have ratified, meaning it is not yet in force.
67. While commending States Parties that have ratified the African Charter on Democracy, she once again urges those that have not yet done so, to ratify it as soon as possible.
68. Furthermore, the Special Repporteur applauds States Parties that have undertaken free and fair elections in Africa during the reporting period and urge those whose elections and referenda are still pending, to ensure that they are free and fair, to enable citizens determine their choices and promote transparency.
69. Lastly, she once again urges all States Parties who have received her Appeals and recommendations, to act on them and report on the measures they have taken to implement them.
 See ACHPR/Res.122 (XXXXII) 07: Resolution on the Expansion of the Mandate and Re-appointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa adopted during the 42nd Ordinary Session of the African Commission that took place in Brazzaville, Congo from 15 to 28 November 2007, available at http://www.achpr.org/english/resolutions/resolution122_en.ht.
 See Activity Report, 47th Ordinary Session.
 These violations have remained the same and have been consistent over the years.
 They include Burkina Faso; Ethiopia; Ghana; Lesotho; Mauritania, Rwanda and Sierra Leone. Available at http://www.ips.org/africa/2010/11/only-seven-african-nations-have-ratified-the-african-charter-on-democracy-elections-and-governance-which-promotes-good-governance-on-the-continent/ and www.afrik-news.com/pressrelease1067.html.