ADVOCATE. PANSY TLAKULA
THE SPECIAL RAPPORTEUR ON FREEDOM OF EXPRESSION AND ACCESS TO INFORMATION IN AFRICA
Presented during the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights
28 April – 12 May 2014
1. This Report outlines the activities undertaken by Adv. Pansy Tlakula, in her capacity as the Special Rapporteur on Freedom of Expression and Access to Information in Africa (the Special Rapporteur), during the intersession period November 2013 to April 2014.
2. The Report will be structured in three Parts: Part I dealing with her activities as a Special Rapporteur. Part I will further be divided into two Sections: Section I covering her activities as a Special Rapporteur and Section II reports on the letters of Appeal she forwarded to State Parties to the African Charter on Human and Peoples’ Rights (the African Charter), addressing alleged violations of freedom of expression and access to information brought to her attention; Part II gives an overview of the status of the adoption of access to information legislation in Africa; and finally Part III presents the conclusions and recommendations of the Report.
ACTIVITIES UNDERTAKEN IN THE PERIOD UNDER REVIEW
Activities as Special Rapporteur
Meeting with the Commissioner for Political Affairs of the African Union
3. On 15 January 2014, in Addis Ababa, Ethiopia, together with her team of Experts, the Special Rapporteur met with Her Excellency Dr. Aisha Laraba Abdullahi, the Commissioner for Political Affairs of the African Union (AU) and her team of Experts on the Model Law on Access to Information for Africa (the Model Law).
4. The purpose of the meeting was to discuss possible avenues of collaboration between the office of the Special Rapporteur and the African Union Commission on the new Model Law.
5. One of the outcomes of the meeting was a proposal that the Director of Political Affairs should work with the Special Rapporteur and her team to develop a business plan for the joint engagement of the Department of Political Affairs and the Special Rapporteur, to prioritise, and mainstream into the work programme of the Department for the current year (2014) and subsequent years, issues focusing on promoting the utilisation of the Model law by States Parties.
6. The meeting also proposed continuous communication between the Special Rapporteur and her team of experts and the Department of Political Affairs on possible areas of collaboration on the Model Law; and further that, the African Governance Platform should be used for advocacy on the Model Law.
Meeting with the East African Community Ambassador
7. On 17 January 2014, in Arusha, Tanzania, the Special Rapporteur and her team of Experts met with the Secretary General of the East African Community (EAC), Ambassador (Dr) Richard Sezibera and his team.
8. The outcome of the meeting was as follows:
- The East African Legislative Assembly (EALA) could also adopt a regional law on Access to Information, using the Model Law as a guide;
- Certain aspects of the Model Law could specifically be legislated upon by the EALA;
- The Bill of Rights for the EAC passed in early 2012, but still awaiting approval by the Heads of States could be amended to include aspects of the Model Law;
- Provisions of the Model Law could be incorporated into the Protocol on Good Governance;
- On-going programme on the harmonisation of EAC laws could benefit from the Model Law;
- The Council of Ministers could pass binding Resolutions encouraging Member States to utilise the Model Law in adopting Access to Information Laws; and
- The team of the Special Rapporteur should liaise with the Principal Political Affairs Officer, to explore how the above actions can be actualized.
9. From 24 to 25 January 2014, in Johannesburg, South Africa, the Special Rapporteur, in collaboration with the Centre for Human Rights - University of Pretoria, and the Open Society Foundation, convened and co-hosted a Regional Consultation on Freedom of Expression Political-Electoral Communication with the United Nations(UN) Special Rapporteur on Freedom Opinion and Expression – Mr. Frank LaRue.
10. The objectives of the Consultation were as follows:
- To explore the most urgent opportunities and challenges facing freedom of expression in Africa today;
- To introduce the concept of political-electoral communication and collect regional recommendations for the Report of the UN Special Rapporteur for Freedom of Opinion and Expression to be presented to the UN Human Rights Council in June 2014, in Geneva;
- To assess the current state of the political-electoral communication across the region; and
- To bring civil society groups from across Africa together to develop strategies for working as a regional group with shared goals.
Speeches/keynote addresses/opening remarks
11. On 26 November 2013 in Cape Town, South Africa, the Special Rapporteur delivered a key note address at the Konrad Sdenauer Stiftug Conference titled: “Media Law Reform in Africa”.
12. From 2 to 3 December 2013, in Midrand, South Africa, she was a Panellist in a Panel discussion focusing on ‘the role of the public broadcaster in deepening democracy in times of fundamental political change/transitions’ at a Conference entitled: « Public Broadcasting and Media Legislative Reforms in Africa, » organised by the Pan African Parliament, AfriMAP, Article 19, OSISA and MISA.
13. The Special Rapporteur attended and delivered opening remarks on « the challenges online journalism is currently facing (and Journalists). » at an event organised by the International Press Institute (IPI) titled “Challenges of the New Age”. The event examined three main challenges related to digital media journalists and digital innovators currently faced around the world, that is, Sustainability, Digital Security and Self-Regulation.
14. At the General Assembly Meeting held in Johannesburg, South Africa, between January 28 to 29 2014, the Special Rapporteur delivered a key note address titled « The right to Information in Africa: balancing the right to know and national Security concerns » at the Africa Freedom of Information Centre.
15. In 14 April 2014 in Cape Town, South Africa, the Special Rapporteur attended a Conference organised by the IPI World Press on the celebration of 20 years of Freedom in South Africa. She was a Panelist on the panel discussion titled “The New South Africa: A Look at the Media Landscape and Press Freedom 20 Years On”. This was organized to address the challenges of the media and issues surrounding press Freedom in South Africa as well as ascertain progress made so far and what still needs to be done.
Interviews / Articles
16. In October 2013, the Special Rapporteur held an Interview with Mr. Timothy Spence of the IPI on “press freedom challenges in Ethiopia today”.
17. On 19 January 2014, she had an interview with Ricci Shryock of Riccimedia – Senegal (www.riccimedia.com) for Voice of America about the Ethiopian Journalist, Ms. Reeyot Alemu. (Ms. Reeyot Alemu was one of the two journalists on whose behalf the Special Rapporteur sent a Letter of Appeal to the His Excellency, Hailemariam Desalegn Prime Minister of the Federal Democratic Republic of Ethiopia on 10 January 2014).
18. The Special Rapporteur wrote a Foreword for the IPI’S Africa World Press Freedom Heroes Book in March 2014. On the same month, she also wrote a Foreword for a book by the Human Rights Network for Journalists – Uganda that analyses media laws in Uganda based on international standards on Freedom of Expression and Frreedom of Information, and their impact on media freedoms.
Letters of Appeal
Joint letter of Appeal to the Republic of Angola
19. 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 a joint letter of Appeal to the Republic of Angola during the period under review.
20. On 30 October 2013, the Special Rappoorteur together with the Special Rapporteur on Human Right Defenders in Africa, Honorable Commissioner Reine Alapini–Gansou, sent a joint letter of Appeal to the Republic of Angola addressing the alleged violation of the right to freedom of demonstration in Luanda.
21. While appealing that H. E Jose Eduardo dos Santos, President of the Republic of Angola should investigate the allegations against those arrested, bring the perpetrators to justice and release any protesters still in detention, they emphasized on the provision of Article 9 of the African Charter as well as Articles 5(a) and 6(b) of the UN Declaration on Human Rights Defenders which provides for the right to freedom of assembly and freedom of expression.
Appeal to the Federal Democratic Republic of Ethiopia
22. On 10 January 2014, the Special Rapporteur sent a letter of Appeal to H.E Hailemariam Desalegn, the Prime Minister of the Federal Democratic Republic of Ethiopia with respect to the health and wellbeing of two journalists serving fourteen and five years prison sentences respectively, in the Federal Democratic Republic of Ethiopia namely, Mr. Woubshet Taye and Ms. Reeyot Alemu.
23. In the Letter of Appeal, the Special Rapporteur made reference to Article 5 of the African Charter which guarantees the right of every individual “to the respect of the dignity inherent in a human being…” and more importantly, Article 16 of the African Charter which provides that “Every individual shall have the right to enjoy the best attainable state of physical and mental health”
24. Furthermore, the letter of Appeal noted that according to the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa female detainees must be accorded, “care, protection, and all necessary individual assistance-psychological, medical and physical…” by the State. The Special Rapporteur respectfully appealed to the Government of the Federal Democratic Republic of Ethiopia, to direct that both Woubshet and Reeyot receive the necessary medical care to which they are entitled.
Appeal to the Kingdom of Swaziland
25. On 24 March 2014, the Special Rapporteur sent a letter of Appeal to H.E King Mswati III of the Kingdom of Swaziland regarding the alleged arrest and detention of Mr. Thulani Rudolf Mseko and Mr. Bheki Makhubu a prominent human rights lawyer and journalist respectively.
26. In the letter of Appeal, the Special Rapporteur drew the kind attention of H.E King Mswati III to the Declaration of Principles on Freedom of Expression in Africa (the Declaration), adopted by the Commission to supplement the provisions of Article 9 of the African Charter. She highlighted Principles I (1) and II of the Declaration respectively 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”.
27. She also highlighted Principle XI (1) of the Declaration which provides that “…intimidation of and threats to media practitioners and others exercising their right to freedom of expression…undermines independent journalism, freedom of expression and the free flow of information to the public,” adding that Principle XI (2) puts an obligation on State Parties “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.”
Joint Press Release to the Kingdom of Swaziland
28. On 27 March 2014, The Special Rapporteur, together with the Special Rapporteur on Human Rights Defenders, Commissioner Reine-Alapini Gansou published a joint Press Release to the Kingdom of Swaziland on the arrest of Mr. Thulani Rudolf Maseko and Mr. Bheki Makhubu.
29. The Special Rapporteurs expressed their concern on reports of the circumstances surrounding the arrest and charges against Mr. Maseko and Mr. Makhubu. In this regard, they reminded the Government of the Kingdom of Swaziland of its international obligations under the African Charter, the UN Declaration on Human Rights Defenders, the Kigali Declaration, the Grand Bay Declaration, amongst others.
30. The Special Rapporteurs urged the Government of the Kingdom of Swaziland, to order the immediate and unconditional release of Mr. Maseko and Mr. Makhubu, as well as withdraw all charges against them.
31. The Special Rapporteurs further urged the Swazi authorities to take the necessary measures to stop all acts of judicial harassment and intimation carried out against human rights defenders working in Swaziland and to respect and guarantee their right to freedom of opinion and expression.
32. On 6 April 2014, the Office of the Special Rapporteur received information that the High Court Judge Mumcy Dlamini set aside the warrant of arrest that was issued by Chief Justice Michael Ramodibedi against Mr. Maseko and Mr. Makhubu, with the charges. It is reported that the two human rights defenders were released, and again re-arrested. The Special Rapporteur remains concerned about the continuous harassment and intimidation of these individuals, other human rights defenders, journalists, and media practitioners in Swaziland.
STATUS OF ADOPTION OF ACCESS TO INFORMATION LEGISLATION IN AFRICA
33. In line with the mandate of the Special Rapporteur 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,” this part of the Report highlights the progress made in the adoption of Access to Information legislation on the continent since the last reporting period.
34. The period in review was marked by some progress, but has also seen some down sides in terms of the promotion and protection of access to information in Africa.
35. Again, as mentioned in the last Report, the adoption of the Model Law at the 53rd Ordinary Session of the Commission marked the beginning of a new era with respect to the protection and promotion of the right to access to information in the region.
36. As of the last two reporting periods, the number of African countries with Access to Information Laws remained eleven (11)-Angola, Ethiopia, Guinea, Liberia, Niger, Nigeria, Rwanda, South Africa, Tunisia, Uganda and Zimbabwe. This is no longer the case as there have been some developments.
37. On 29 October 2013, Sierra Leone adopted a Freedom of Information Law while Cote d‘Ivoire adopted its Access to Information Law in December 2013, making it thirteen (13) countries with laws promoting the right of access to information on the continent.
38. On 12 November 2013, the South African Assembly passed a revised version of the controversial 2010 Protection of State Information Bill commonly referred to as the “Secrecy Bill”.
39. Other countries such as Egypt and Namibia are embarking on a drafting process and hopefully their Access to Information Laws will soon materialize.
40. It is also important to note that the Parliament of Ghana has approved the long awaited Access to Information Bill. However, things are moving slowly with regard to the adoption of the Bill and this remains a concern for the Special Rapporteur.
CONCLUSIONS AND RECOMMENDATIONS
41. The Special Rapporteur welcomes efforts made by Sierra Leone and Cote D’Ivoire towards promoting and protecting the right of access to information by adopting Freedom of Information Laws. She also welcomes efforts made by Ghana and South Africa in giving effect to this right, and strongly encourages other States Parties to join this lead and adopt not only Access to Information Laws while using the Model Law as a benchmark, but also put in place strategies to implement them. This will go a long way to entrench transparency, accountability and most importantly, enhance greater participation by citizens in the management of public affairs.
42. As stated in the last reports of the Special Rapporteur, the Model Law is at its implementation phase, which is focused on promoting the effective utilization of the Model Law by State parties. In this sense, while the Special Rapporteur appreciates the support already received from partners and other stakeholders towards this venture, she continues to call on the support of key actors during this phase.
43. The African Charter on Democracy, Elections and Governance (the African Charter on Democracy) sets out international standards of good governance and democracy on the continent. Despite the importance of this Charter, especially on our continent prone to political crises, it is unfortunate that some States Parties still lag behind in terms of ratifying the same. In that regard, the Special Rapporteur once again commends States Parties that have signed and ratified the African Charter on Democracy, and calls upon those that have not yet done so, to ratify as soon as possible.
44. The Special Rapporteur also continues to urge all States Parties to act on, and respond to her Letters of Appeal, while indicating measures they have taken to implement the recommendations therein.
45. Finally, the Special Rapporteur remains alarmed by the series of alleged intimidation, harassment, arbitrary arrest and detention of journalists, media practitioners and human rights defenders in some parts of Africa during the period under review. She calls on concerned Governments to thoroughly investigate the allegations, bring the perpetrators to justice and ensure the safety of journalists, media practitioners and human rights defenders.
46. She also calls on States Parties to carry out comprehensive reforms that guarantee freedom of expression and access to information to the populace, and ensure both legal and practical compliance of national laws with international and regional standards on freedom of expression and access to information.
 This Special Mechanism was established at the 36th Ordinary Session of the Commission held in Dakar, Senegal from 23 November to 5 December 2004. Commissioner Tlakula was appointed pursuant to Resolution on Freedom of Expression and Access to Information in Africa, ACHPR/Res.84 (XXXXV) 05, adopted by the Commission on 5 December 2005.
 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.
 Cote d’Ivoire adopts Acess to Information L aw http://www.fesmedia-africa.org/what-is-news/media-matters/news/article/cote-divoire-cote-divoire-adopts-access-to-information-law/ accessed 3 April 2014