OF SPECIAL RAPPORTEUR ON FREEDOM
OF EXPRESSION IN AFRICA
COMMISSIONER A. R. CHIGOVERA
The Special Rapporteur on Freedom of Expression is the newest special mechanism established by the African Commission on Human and Peoples’ Rights to enhance the Commission’s effectiveness in the promotion and protection of the right to freedom of expression in Africa. The mechanism was established by a Resolution of the Commission adopted at its 36th Ordinary Session held in Dakar from November to December 2004. The Resolution gives the Special Rapporteur the mandate to inter alia:
a) To analyse national media legislation, policies and practice within Member States, monitor their compliance with freedom of expression standards in general and the Declaration of Principles on Freedom of Expression in particular and make appropriate recommendations to the Commission;
b) To undertake investigative missions to Member States where reports of massive violations of the right to freedom of expression are made and make appropriate recommendations to the Commission;
c) To undertake country missions and any other promotional activity that would strengthen the full enjoyment of the right to freedom of expression in Africa;
d) To keep up a proper record of violations of the right to freedom of expression and publish this in his/her reports submitted to the African Commission; and
e) To submit reports at each ordinary session of the Commission on the status of the enjoyment of the right to freedom of expression in Africa.
The Resolution calls upon Member States of the AU not only to take such measures as are necessary to ensure protection of the right to freedom of expression but also urges Member States to “co-operate with and to assist the Special Rapporteur in the performance of his tasks and to provide all necessary information for the fulfillment of his mandate.
The Resolution concludes by requesting the African Union to provide adequate resources, assistance and support for its implementation.
Not much could in terms of substantive work possibly be done in the short space of time since its establishment as the basic infrastructure for the operation of the mechanism is yet to be established. As is the case with other mechanisms established by the Commission funding is not readily available as no provision is made in the budget allocation to the Commission by the AU for the operation of these mechanisms. That is precisely why the Resolution of the Commission in its last paragraph requests the AU to provide adequate resources, assistance and support to the mechanism.
In the meantime, the Commission has relied on resources and support from stake holders in the specific field. In this case the Commission has relied heavily on Article 19 and its partners right from the time of commencement of work on the development of the Declaration of Principles on Freedom of Expression and the Mechanism for its protection as reported by myself in earlier sessions.
Despite these constraints, I was, however, able to carry out the following activities:
- Delivered a paper on special mechanisms under the African Charter in respect of women’s rights and freedom of expression at a Human Rights Training Programme on the use of International Standards and Norms and Litigation to Advance the Human Rights of Women.
- VISIT TO THE ORGANISATION OF AMERICAN STATES SPECIAL RAPPORTEUR ON FREEDOM OF EXPRESSION – WASHINGTON DC, US, 28 FEBRUARY TO 4 MARCH, 2005
The trip was organized and funded by Article 19.
Purpose of trip
The trip was part of our efforts (mine and Article 19) to develop the working method and efficiency of the African Commission’s Special Rapporteur on Freedom of Expression. It was timed to coincide with the session of the Inter-American Commission on Human Rights to enable our delegation to see how the OAS Special Rapporteur on Freedom of Expression works within the Inter-American system. This was an opportunity for the two Special Rapporteurs to discuss common problems facing freedom of expression in both Africa and the Americas, consider ways in which the two mandates can co-operate to address some of these problems and exchange information about strategies to carry out our individual mandates.
I was supposed to be accompanied by Mr. Robert Eno, a Legal Officer from the Secretariat and Ms Fatou Jagne from Article 19, the funders and organisers of the trip. I was only informed at the last minute that Mr. Eno was unable to travel. Only Ms Fatou Jagne joined me in Washington.
a) With the SR’s Office:
We held three meetings with Mr. Eduardo Bertoni the Special Rapporteur on Freedom of Expression for OAS and his staff and a further dinner meeting to discuss how his office is organised, its funding, the challenges it faces and how it fits in the overall system of the Inter-American Commission. We also had a session on the different aspects of his work, his office’s relationship with governments, civil society, the media, the cases and funding.
Besides these meetings Mr. Bertoni invited us to attend the hearing on the situation of freedom of expression in Mexico before the Inter-American Commission where he was requested to give his views after the submissions of the Mexican Government and a Group of Media NGOs on the licensing of Community radios.
It is necessary here to clarify the status of the OAS Special Rapporteur on freedom of expression. The Special Rapporteur is not a Commissioner of the Inter-American Commission. His office is an independent office which reports to the Commission. It is autonomous with its own staff and budget.
In further discussions with Mr. Bertoni, he also explained to us the different procedures his office uses to bring governments and civil society to talk to each other in front of the Commission. Great emphasis is placed on amicable settlements. It is only when these fail that the need to have the matter resolved by the Commission or the Inter-America Human Rights Court arises. The African Commission should perhaps give serious thought to such an approach.
We also had in-depth discussions with the lawyers assisting the Special Rapporteur on substantive freedom of expression issues and how they deal with urgent appeals and interim/provisional measures during the Sessions of the Commission and in the inter-session. These procedures certainly enhance the image and effectiveness of the Inter-American system and certainly deserve some consideration by the African Commission.
b) With Inter-American Commission
Mr. Bertoni also arranged a meeting for us with the Chairperson of the Inter-American Commission, his Vice-Chair and senior officials of the Commission.
At that meeting we exchanged information on the operations of our respective Commissions. I gave the meeting a briefing of how the African Commission works and the many challenges it faces in addressing human rights issues in Africa.
At the conclusion of the meeting, it was agreed to establish a formal co-operation between the two Commissions and the Special Rapporteur in order to learn from each other and provide assistance wherever possible. I did agree with my counter-part to further develop the co-operation.
c) Other meetings
(i) I was invited to give a lecture at the George Washington University, Law School on the African System and my mandate. The lecture was well received by the participants who actively participated through asking questions and making complimentary comments.
(ii) We also had meetings with many other media freedom and human rights groups who welcomed the appointment of the Special Rapporteur on Freedom of Expression. They raised concerns on the situation of freedom of expression in Africa and hoped that the Special Rapporteur would be able to address some of the violations in many African countries.
They were also eager to know how in practice the SR will go about implementing his mandate, what his priorities were, the outputs, the working methods, etc. The groups we met included the Committee to Protect Journalists, Open Society Justice Initiative.
The Centre for Justice and International Law and the International Centre for Journalists.
At the conclusion of my visit, the two of us approved a joint declaration addressing some of the issues we had discussed during our meetings. We reaffirmed the importance of freedom of expression in a democracy and expressed concerns about the many threats to freedom of expression in our respective regions. Our Declaration also highlights the importance of plurality in sources of information as an essential component of freedom of expression and observes that “State control of media, as well as laws and practices that permit monopolies in ownership of media companies, limit plurality and prevent the public from hearing points of view”.
The copy of the Declaration is attached to this report.
Dissemination of Resolution and Declaration of Principles on freedom of expression
In line with my promotional mandate, I caused both the Declaration of Principles on freedom of expression and the Resolution on the mandate and appointment of Special Rapporteur on Freedom of Expression in Africa to be sent to all members States.
This was intended to ensure that each Member State has a full text of the Declaration and familiarises itself with its obligations under Article 9 of the Charter.
In addition each Member State’s attention was being brought to the establishment of the Special Rapporteur mechanism, the appointment of a special Rapporteur, his mandate as well as the appeal to Member States to co-operate with and assist the SR.
CONCLUSION / WAY FORWARD
a) The two Special Rapporteurs (myself and the OAS) agreed to develop their cooperation and to assist each other and to exchange jurisprudence.
b) Article 19 will assist the ACHPR translate the Declaration of Principles on Freedom of Expression in Arabic, Portuguese and Kiswahili, organize training programmes and sensitization workshops on the Declaration and the Mandate of the SR in the coming months.
From the meetings and reaction of many stakeholders, it is clear that many people would like the SR to act promptly and address violations as they occur.
The future of the mandate will largely depend on its ability to gain the trust of all actors and especially governments, advocates and victims of the freedom of expression violations. In order for the SR to be an effective mechanism – an agent for change – some procedures that could delay or hamper prompt interventions and interactions with the concerned actors should be clarified, if need be amended. The mandate could be efficient if the SR has some degree of flexibility.