INTER-SESSION ACTIVITY REPORT
OF
Commissioner Ourveena Geereesha Topsy-Sonoo
Presented during the 77th Ordinary Session
of the
African Commission on Human and Peoples’ Rights
Arusha, Tanzania
20 October to 09 November 2023
INTRODUCTION
1.This report is presented in accordance with Rules 25(3) and 64 of the Rules of Procedure (2020) of the African Commission on Human and Peoples’ Rights (the Commission), and covers activities carried out during the intersession period between May to October 2023.
2.The Report is structured as follows:
Part I: Activities undertaken in my capacity as a Member of the Commission and as a member of the Working Group on the Working Group on the Death Penalty, Extrajudicial, Summary or Arbitrary Killings and Enforced Disappearances in Africa (the Working Group on the Death Penalty);
Part II: Activities undertaken in my capacity as the Special Rapporteur on Freedom of Expression and Access to Information in Africa (the Special Rapporteur);
Part III: Report on interventions issued in response to human rights violations;
Part IV: Commemoration of the 10th anniversary of the Model Law on Access to Information for Africa;
Part V: Conclusion and Recommendations of the Report.
Part I:
Activities undertaken in my capacity as a Member of the Commission
Participation in the 76th Ordinary Private Session
3.From 19 July to 02 August 2023, I participated in the Commission’s 76th Ordinary Private Session, which was held virtually to consider Communications, adopt Concluding Observations on State Periodic Reports, the Mid-Term Review of the ACHPR 2021-2025 Strategic Plan, country and thematic Resolutions, in addition to considering a number of Reports.
Activities undertaken in my capacity as a member of the Working Group on the Death Penalty
Planning and Induction Workshop for new Expert Members of the Working Group on Death Penalty, Extrajudicial, Summary of Arbitrary Killings and Enforced Disappearances in Africa
4.On 15 June 2023, in my capacity as a member of the Working Group on the Death Penalty, I participated in a virtual Induction Workshop for the new Expert Members of the Working Group who were appointed during the 73rd Ordinary Session held in November 2022. This provided the opportunity to introduce the new members to the Commission’s work, methods and priorities, to enable them to fulfil their mandate.
5.The overall objective of the Workshop was to discuss the Working Group’s short and medium-term priorities, in addition to reviewing and adopting its 2023 Annual Work Plan.
Part II: Activities undertaken as the Special Rapporteur
Conference on Information and Communication rights in Africa
6.From 31 May to 02 June 2023, I attended the Conference on Information and Communication Rights in Africa, held in Windhoek, Namibia. The meeting was convened by Fesmedia Africa.
7.The Conference brought together access to information, digital rights and human rights activists, media workers, among others, from across Africa in order to discuss the state of freedom of expression and access to information in Africa. The meeting also provided a useful opportunity to popularize the Commission’s soft law documents adopted to give effect to Article 9 of the African Charter, including the Declaration of Principles on Freedom of Expression and Access to Information in Africa.
Launch of the Media Associations for Self-Regulation (MASR)
8.On 18 August 2023, I was invited to deliver a statement during the launch of the Media Associations for Self-Regulation (MASR), an initiative of the Zambian Media Fraternity. I intervened virtually, owing to my unavailability to attend the event in person.
9.In my statement, I extended my congratulations for the establishment of the Media Associations for Self-Regulation (MASR), in addition to the operationalization of Media Ethics Complaints Commission (MECC) and development of a Media Code of Ethics. I noted that this development marks an achievement of one of the targets of the Windhoek Outcome document, prepared at the Regional Conference on Information and Communication rights, in which participants committed to “develop and enhance self-regulatory mechanisms that uphold professional standards and addresses issues of media accountability and transparency.”
East and Southern Africa Regional Governance Forum and Democracy Day Roundtable
10.On 15 September 2023, I participated virtually in the East and Southern Africa Regional Governance Forum and Democracy Day Roundtable. During this meeting, I participated in a panel discussion on ‘Reimagining Democratization in the Digitalization Age’, during which my intervention focused on the following: mapping the opportunities versus risks of digitalization to democracy in Africa; artificial intelligence and the future of democracy in Africa; striking the balance between national security versus citizen online rights; and finally how African States can leverage the opportunities of digitalization to enhance meaningful youth political participation and representation whilst protecting against the risks.
Interview for a publication on regulating digital media in Africa
11.On 22 September 2023, I participated in a virtual interview conducted by the University of Birmingham, as a contribution for a publication on regulating digital media in Africa. My intervention provided an overview of the online media regulatory landscape in Africa, censorship policies, the role of the AU in regulatory policies, in addition to my views on the continental approach and policy implementation.
Webinar on the Launch of Reports on Proactive Disclosure of Information and Elections in Africa
12.On 26 September 2023, I gave a key note address and participated in a Webinar on the Launch of Reports on Proactive Disclosure of Information and Elections in Africa, convened by the Centre for Human Rights of the University of Pretoria. The reports which were launched assessed the compliance of a number of States Parties, namely Ghana, Kenya, Uganda, and the Gambia, with the African Commission’s Guidelines on Access to Information and Elections in Africa, during their electoral periods.
13.The reports examine the proactive disclosure of credible election-related information by election management bodies, appointing authorities, law enforcement agencies, political parties and candidates, media and regulatory bodies, election observers, and civil society, as envisaged under the Guidelines.
National Forum on Access to Information
14.On 28 September 2023, in commemoration of the International Day for Universal Access to Information, I gave an address via recording to the National Forum on Access to Information. This commemoration was held in Mogadishu, Somalia, and was convened by the National Union of Somali Journalists. This commemoration provided an opportunity to advocate for the enactment of an access to information law in Somalia, in addition to facilitating constructive dialogue on how to effectively promote and protect this right.
Seminar on Access to Information
15.On 28 September 2023, I participated virtually and gave the key-note address during the Seminar on Access to Information convened by the Centre for Human Rights of the University of Pretoria. In addition to commemorating the International Day for Universal Access to Information, my address took note of the 10th anniversary of the adoption of the Model Law on Access to Information for Africa.
Recording of Podcast on the 10 years of the Model Law on Access to Information for Africa
16.On 29 September 2023, I participated in the recording of a Podcast which focused on the 10 years of the Model Law on Access to Information for Africa. The podcast was recorded by the Centre for Human Rights, and focused on the success achieved since the adoption of the Model law, challenges on ensuring access to information in Africa, in addition to recommendations on the way forward in order to achieve the right of access to information.
Side Event on Ensuring journalists’ safety and tackling impunity for crimes against the press
17.On 04 October 2023, I participated virtually and presented a statement during a side event held on the margins of the 54th Session of the UN Human Rights Council on “Ensuring journalists’ safety and tackling impunity for crimes against the press.” In view of the fact that attacks against journalists persist unabated, both online and offline, with impunity for these crimes remaining unacceptably high, my statement noted the key challenges of ensuring that States uphold their commitments to ensure the safety of journalists, the action which has been taken by the Commission on this key issue, in addition to calling on all stakeholders to continually submit complaints and reports of attacks against journalists to the Commission and mandate on freedom of expression and access to information in Africa.
Activities on the margins of the 77th Ordinary
18.On the margins of the Commission’s 77th Ordinary Session I participated in the following activities:
-Meeting with representatives from International Federation for Human Rights (FIDH), Saturday 21 October 2023;
-Meeting with representatives from Amnesty International, Sunday 22 October 2023;
-Meeting with the acting Ambassador of the Republic of Botswana to the African Union, Wednesday 25 October 2023;
-Meeting with representatives from Paradigm Initiative, Wednesday 25 October 2023;
-Meetings with representatives from Reports Without Boarders, Saturday 28 October 2023.
Part III: Report on interventions issued in response to human rights violations
-Letters
Joint Letter to the Republic of Zambia commending approval of the Marriage (Amendment) Bill
19.On 02 August 2023, in my capacity as the Commissioner rapporteur for the human rights situation in the Republic of Zambia, I participated in a joint letter of commendation in conjunction with the Special Rapporteur on the Rights of Women in Africa, which was conveyed to H.E. the President of the Republic of Zambia, following the Government’s approval of the publication and introduction in parliament of the Marriage (Amendment) Bill 2023.
20.The Letter commended, inter alia, the raising of the age of marriage from 16 to 19 years, thereby contributing to eradication of child marriage. This amendment of the Marriage Act, which raises the minimum age to 19, gives effect to Article (3 of the African Charter on Human and Peoples’ Rights, in addition to Article 5 and 6 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
Joint Letter of Urgent Appeal to the Republic of Zambia on the situation of Mr. Joseph Moyo
21.On 16 August 2023, in my capacity as the Commissioner rapporteur for the human rights situation in the Republic of Zambia, I participated in a joint letter of urgent appeal in conjunction with the Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa and the Chairperson of the Committee for the Prevention of Torture in Africa, which was conveyed to H.E. the President of the Republic of Zambia, regarding the situation of Mr. Joseph Moyo.
22.The letter noted Mr. Moyo’s allegations regarding his status as a person with disability since 2016, combined with his chronic ill-health, which subjects him to the constant violation of his rights to dignity, protection against unjustified discrimination, freedom of movement and numerous other rights such as the right to justice, equal access to public services and other economic, social and cultural rights. The alleged violations Mr. Moyo has been subjected to are said to be rooted in the Government’s failure to act on his numerous appeals to the authorities at the highest levels, including the President of the Republic and Ministries of Local Government, Justice, Infrastructure, requesting the Government to find the means, as required by the Zambian Constitution, to prevent the violations in question.
Joint Letter of Urgent Appeal to the Arab Republic of Egypt
23.On 18 October 2023, I participated in a Joint Letter of Urgent Appeal, in collaboration with the Special Rapporteur on Human Rights Defenders and Focal Point on Reprisals in Africa, in response to reports received indicating that Dr. Ayman Nour, an Egyptian political figure in his capacity as leader of the liberal political party Ghad al-Thawra and former member of the Egyptian parliament, in addition to other members of Egyptian civil society, including journalists from Al-Sharq TV, members of the Ghad al-Thawra party and women members of the Egyptian National Alliance, have reportedly been placed on this same terrorist list, with no possibility of appeal, for defending liberal, secular ideologies and the rejection of violence. The Letter sought clarification of the reports, and requested open an adequate, independent and impartial investigation into the reported facts, where appropriate.
Joint Letter of Urgent Appeal to the Republic of Senegal regarding the arbitrary arrest and detention of human rights defender and journalist Aliou Sané
24.On 23 October 2023, I participated in a Joint Letter of Urgent Appeal, in collaboration with the Special Rapporteur on Human Rights Defenders and Focal Point on Reprisals in Africa, in response to reports received regarding the arrest of Mr. Aliou Sané on 05 October 2023. Reports indicate that Mr Sané, a human rights defender, journalist, co-founder of the "Y'en a marre" movement and deputy coordinator of the F24 platform, is a campaigner for the right to freedom of expression and information, as well as the right of peaceful assembly and association for the full enjoyment of civil and political rights in Senegal.
-Press Statements
Statement commemorating the International Day for Universal Access to Information, 28 September 2023
25.On 28 September 2023, I issued a press statement in commemoration of the International Day for Universal Access to Information, which joined the international community in recognizing the importance of the right of access to information. The Statement noted that access to information is a fundamental right, closely related freedom of expression, which is typically referenced as a key component of democracy. The Statement noted that the right to information is not only a human right, but also an indispensable tool which empowers people to demand accountability from Governments and participate in public life.
26.The Statement commended the States Parties which have adopted national laws to ensure promotion and protection of the right to access information, and further called on the States to establish and mandate effective oversight mechanisms, in addition to popularizing the laws to ensure awareness on the right of access to information.
Statement commemorating the International Day to End Impunity for Crimes against Journalists, 02 November 2023
27.On 02 November 2023, I issued a press statement in commemoration of the International Day to End Impunity for Crimes against Journalists, which noted with concern the exponential increasing complicity of States Parties in the continent-wide attacks on journalists, in addition to reports regarding varying attacks on journalists including acts of violence, abduction, arbitrary detention and extra-judicial killing. The Statement noted Principle 20(4) of the Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019), which enjoins State Parties to take effective legal and other measures to investigate, prosecute and punish perpetrators of attacks against journalists and other media practitioners, and ensure that victims have access to effective remedies.
Part IV: Commemoration of the 10th anniversary of the Model Law on Access to Information for Africa
28.This section of the report relates to the Model Law on Access to Information in Africa (the Model Law), a soft law document adopted by the Commission in 2013. 2023 marks the 10th anniversary of its adoption. In view of this milestone, the following is a brief elaboration of the process of its elaboration, in addition to its contribution to the access to information landscape on the continent.
29.The right to information, enshrined in Article 9(1) of the African Charter, is a fundamental human right necessary for the enjoyment of other human rights. The right to seek and receive information is essential for a transparent and accountable Government.
30.Prior to the establishment of the special mechanism on freedom of expression and access to information, the Commission adopted the Declaration of Principles on Freedom of Expression in Africa during its 32nd Ordinary Session in October 2002. The adoption of the Declaration was a landmark event, in that Africa now had a regional standard which supplemented the limited scope of the right to freedom of expression, as guaranteed by article 9 of the African Charter. Whereas the Declaration focused on principles related to freedom of expression, including principles related to the media, Principle IV titled Freedom of Information, elaborated six principles on access to information, which for the next 10 years set the regional standard for the promotion and protection of the right to access to information in Africa.
31.Following the adoption of the Declaration, the Commission decided to establish a mechanism to oversee implementation of the Declaration, and by extension Article 9 of the African Charter. This was implemented in the form of the designation of a ‘focal person’ within the Commission for this purpose. In 2004, the ‘focal person’ on freedom of expression was transformed into the ‘Special Rapporteur’ on freedom of expression.
32.The mandate of the Special Rapporteur was expanded to include the right of access to information, via a Resolution adopted during the 42nd Ordinary Session held in November 2007. This expansion facilitated efforts to address issues of access to information as a fully-fledged right in itself, separate and distinct from right to freedom of expression in Africa. In the Activity Report presented during the 44th Ordinary Session held in November 2008, the former Special Rapporteur noted that “there is an urgent need for the formulation of a model law or guidelines on access to information on the continent, to assist countries to draft laws which comply with international and regional standards and at the same time are simple, affordable and easy to implement.”
33.Accordingly, in response to the glaring need for the development of normative standards to guide States Parties in their development and adoption of access to information laws in fulfillment of their obligations under the African Charter, the Commission decided to begin a process of drafting a model access to information legislation for Africa, mandated by Resolution on Securing the Effective Realization of Access to Information in Africa, adopted during the 48th Ordinary Session held in November 2010. This resolution was the beginning of a nearly two-and-a-half-year long process of the development of the Model Law, involving numerous experts on the continent. Furthermore, continent-wide consultations with stakeholders took place for each sub-region between June 2011 and June 2012, in addition to a public call for comments on the draft model law issued by the Commission.
34.The Model law was subsequently adopted during the Commission’s 13th Extra-Ordinary Session and launched during the 53rd Ordinary Session of the Commission in April 2013.
35.As stated in its Preface, the Model Law seeks to achieve the following:
-It aims to ensure that legislative drafters and policy-makers address all issues relevant to the African context in their adoption or review of access to information legislation, in addition to serving as a benchmark for measuring compliance with regional and international human rights standards for access to information.
-It aims to serve as a tool for access to information advocates across Africa to stimulate public debate on access to information at the national level, in addition to raising awareness of the crosscutting nature of the right of access to information, and the potential of this right to address issues such as poor service delivery, underdevelopment and the effective functioning of the justice system.
-It also seeks to build upon best practices, in terms of legislative drafting, that have emanated from the adoption and implementation of existing laws in Africa and around the world.
-Lastly, it seeks to reinforce a commonality of approach on access to information in Africa, while at the same time leaving room for States Parties to adapt the Model Law’s provisions on the basis of their own legal systems and constitutional frameworks.
36.In my view, it goes without saying that there is a direct correlation between the adoption of the Model Law and the proliferation of national legislation on access to information. When the Model Law Project started, only five (5) countries on the continent had adopted Access to Information Laws. However, since the development of the Model Law, more countries have adopted Access to Information Laws. As at October 2023, twenty-seven (27) had adopted such laws, including: Angola; Benin; Burkina Faso; Cote d’Ivoire; Ethiopia; The Gambia; Ghana; Guinea; Kenya; Liberia; Malawi; Morocco; Mozambique; Namibia; Nigeria; Niger; Rwanda; Seychelles; South Africa; South Sudan; Sierra Leone; Sudan; Tanzania; Togo; Tunisia; Uganda; and Zimbabwe. This represents about half of the fifty-five (55) African countries.
37.The influence of the Model Law can be seen in that several States actively engaged with the special mechanism on freedom of expression and access to information during the elaboration of their respective legislation on the right to access information. Furthermore, the special mechanism has consistently commended States Parties following adoption of national access to information legislation which adheres to the international and regional standards elaborated in the Model Law.
38.The importance of national legislation specifically providing for the right of access to information was recently buttressed by a decision of High Court of Botswana, issued on 26 September 2023. In the case News Company (Pty) Ltd. V. Water Utilities Corporation, “the High Court of Botswana has dismissed an application reviewing the Water Utility Company (WUC)’s refusal to release a report which researched water flow into the Gaborone Dam. The applicant submitted that it was irrational to withhold the report and that section 12 of the Constitution on the right to freedom of expression, includes the right to access information. However, the Court sided with the WUC in finding that the report was intended for the benefit and aid of its operations and not for public consumption. The Court concluded, “Botswana doesn’t have a freedom of information act. Parliament is yet to enact such a law.”[ https://www.southernafricalitigationcentre.org/2023/09/26/botswana-high…]
39.This judgement underscores the glaring need for adoption of effective legislation ensuring the right of access to information at the domestic level. Accordingly, I take this opportunity to, once again, call on States Parties which have not done so, to adopt access to information legislation in line with the regional and international standards elaborated in the Model Law on Access to Information in Africa, and establish mechanisms to ensure their effective implementation.
40.Furthermore, an interesting initiative has recently emerged. In 2019, a group of African countries recognized the need for a network focusing on access to information on the African continent and created the African Network of Information Commissions (ANIC), which is aimed at creating a platform for access to information on the African continent. ANIC constitutes a network of Information Commissioners, Ombudsmen, and other Regulatory Authorities, which are responsible for protecting, promoting and ensuring the respect of the right of access to information within their respective jurisdictions.
41.In view of our common goal on realization of the right of access to information, I hope to work closely with ANIC, as this initiative has the potential to be a useful collaborator in monitoring implementation of the various national legislations on access to information.
42.In closing, as we commemorate the 10th anniversary of the adoption of the Model law, I take this opportunity to commend my predecessors for the work undertaken to ensure that the right of access to information is promoted and protected. Additionally, I extend my sincere gratitude to all the stakeholders who have collaborated with the mechanism over the years.
Part V: Conclusion and Recommendations of the Report
43.In conclusion and in view of the 10th anniversary of the adoption of the Model Law, and in view of the importance of the right of access to information, I wish to make the following recommendations:
To States Parties:
-Ensure that the right of access to information is guaranteed by law in accordance with the principles elaborated in the Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019) and the Model Law on Access to Information for Africa;
-Ensure that access to information laws stake precedence over any other laws which prohibit or restrict the disclosure of information;
-Ensure the appointment of independent and impartial oversight mechanisms, established by law, mandated to monitor, promote and protect the right of access to information;
-Ensure that adequate funding is provided to the oversight mechanisms, to ensure their effective functioning;
-Ensure that consistent reporting is done on the legislative and other measures taken to give effect to right of access to information in the Periodic Reports submitted in accordance with Article 62 of the African Charter;
-Respond to letters of urgent appeal issued by the special mechanisms, in order to provide clarification and information on the human rights issues raised therein.
To NHRIs and NGOs:
-Continue collaborating with the Commission, and the special mechanism on freedom of expression and access to information in Africa, to popularize the Model Law, and other soft documents related to Article 9 of the African Charter;
-Advocate for the adoption of national legislation on access to information, in the States which have not yet done so
44.I thank you for your attention.
