MOOC FOE1x | 2.6.1 The African Convention | International Norms on Freedom of Expression

MOOC FOE1x | 2.6.1 The African Convention | International Norms on Freedom of Expression

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– We have now reviewed
our international system of protection for freedom of
expression has been established though the United Nation. And our equally important
steps were undertaken by Europe and Latin America. For this segment we
will focus on how Africa followed suit. Adopting its own provision for the protection of
freedom of expression. And establishing a number
of institution responsible for overseeing state
compliance of their commitment. What is the context of the emergence of the African human rights system? It’s May 1963, delegates from 32 African
independent countries meet in Addis Ababa,
the capital of Ethiopia. And, they establish the
Organization for African Unity, OAU. In 2002, the OAU was replaced
by the African Union. At the time of the OAU birth,
the region was in the midst of its fight against colonialism. There were wars against
colonialism throughout the region, and emerging democracies
in a number of countries. The first four decades
following the early 1960s independence movement, was a
period of great instability. Faltering democracies, strengthening of one
party systems, and war. Such as the Biafran war, and famine. Resulting in many million dead. The OAU in 1963, though
symbolize the aspiration of a continent for independence. Political, economic,
cultural, ideological. It also stood as its name indicates, for unity across the continent. Reflecting Pan-African
ideals and identity. Not surprisingly thus,
the OAU insisted primarily on the principle of national sovereignty and self determination. More than indeed, on
human rights protection. Later on, holding emerging
independent governments to account for human rights violation. This lack of attention for human rights was not helped by its
international context. That of Cold War, with a
notion that human rights were the product of Western Imperialism. Still, in Africa political
and intellectual leaders are emerging who are intent on ensuring that the continent does
not lag behind anymore. Including on human rights protection. And so, in 1979 the OAU
adopted the resolution calling for the creation
of a committee of expert to draft a continent wide
human rights instrument. Similar to those that already existed in Europe and the Americas. Two years later, in
1981, the African Charter for Humans and Peoples Rights was adopted. In 1987, the African Commission on Human and Peoples’
Rights was established. Responsible for overseeing, and interpreting the African Charter. Before turning to an analysis of the protection of
freedom of expression. Let me highlight a few feature
of the African Charter. It has been described by some
as modest in its objectives, and flexible in it means. There is large reliance on so
called clawback provisions. I will go back to it, but
basically it’s a provision that weakens the protection afforded. This indeed, concern directly the right
to freedom of expression, In fact, the African
system more than balance the initial weakness within the text. And that, largely thanks
to the African Commission. So, on one hand, it has some
very weakly drafted provision. On the other hand, the
African Charter includes a strong focus and
protection on group rights, on peoples’ rights, and
ensuring these are enforceable. This is a level that you
cannot find in Europe, or indeed within the
inter-American system. That’s possibly not surprising, given the history of the birth of the OAU. And still, it is a
fundamentally important addition to human rights protection
that comes to us via the African system. Yet another aspect of the
African human rights system, is that it has established
a range of mechanisms responsible for
enforcement of the Charter. And that individuals and
organizations, not just victims, can complaint for violation
of their human rights. Let’s now turn to freedom of expression. Under Article Nine, the
African Charter guarantees every individual the right
to receive information, and express and disseminate
either or opinion, within the law. That’s basically quoted
from the Article here. Every individual shall
have the right to express and disseminate his
opinions within the law. So, that little segment
here, within the law, is said to constitute a clawback clause. Because, if its use of the
term law is interpreted to mean any domestic law,
regardless of it’s effect. States in essence, would be able to negate the right conferred upon
individual by the Charter. The limitations set forth by Article Nine of the African Charter, is as both imprecise and overboard. And, would place unlimited restrictions, basically, on freedom of expression. However, that’s where the
African Commission comes in, and by it’s ruling, by
it’s advisory opinion, it’s going to limit the impact of that so called clawback clause. The African Commission on
Human and Peoples’ Right, the African Commission, was established by virtue of Article 30
of the African Charter. With a specific mandate to promote human and peoples’ right and ensure
their protection in Africa. It can hear and rule
over complaints submitted by individuals, NGOs, or state
parties to the African Charter. It does not have binding
forces over the member state. But, its communication
of a strong advisory role and influence. And indeed, are heavily
courted by the various courts established at regional
level, at sub-regional level and at all national state. In fact, expectation
of compliance with the African Commission decisions
appear to have emerged. For this is a very important
body for the continent. Over the years, in response to complaints the Commissioners developed jurisprudence on human peoples’ rights in general. And, the right to freedom
of expression in particular. Including, on the issue of
its legitimate restrictions. The jurisprudence function
of the African Commission is particularly important,
because until last year the African court for human rights had only issued very few judgement
on freedom of expression. But we will return to that. One of the key interpretation
by the African Commission, and indeed, the first one,
has been of the so called clawback clause, the “within the law.” Early on, it ruled that
this provision constituted a reference to international
law, not domestic. Meaning, that the only
restriction that can be enacted by the relevant national
authorities, are those which are consistent with state
parties international obligation. Let me quote here, from
a 1998 communication made with regard to a case brought
by an NGO media rights agenda against the government of Nigeria. Which had proscribed the
publication of two magazines and 10 newspapers. Arguing that it was
doing so within the law. What did the African Commission say? I quote, The jurisprudence of the
African Commission abounds in examples in which it has stated that limitations are to be in accordance with state parties
obligations under the Charter. Meaning, with international
human rights law. Thus, the Commission was able to
neutralize the clawback clause. By relying on its duty
to interpret the Charter, in light of international
human rights jurisprudence. Following the 1981 adoption
of the African Charter, and Article Nine on freedom of expression, a second step toward the protection of freedom of expression in
Africa took place in 2002. At it 32nd session, held in Banjul, the African Commission
adopted by resolution, the Declaration of Principles on Freedom of Expression in Africa. And, you will find the
declaration in your readings, throughout the course. The declaration is a result
of the combine effort of many stakeholders working
on freedom of expression, across the continent. In the first place, civil
society organizations. It sets out important benchmark, and elaborates on the
precise meaning and scope of the guarantees of freedom of expression laid down under Article
Nine of the African Charter. For instance, the Declaration
on Freedom of Expression states that no one shall
be subject to arbitrary interference with either
of freedom of expression. Any restrictions on freedom
of expression shall be, provided by law, serve
a legitimate interest, and be necessary and in a democratic society. So, the Declaration on Freedom
of Expression elaborate on the Article Nine of
the African Charter. Which is very brief, and it gives more meaning to this Article. Along side, of course, the jurisprudence and the opinion of the African Commission. Third step, for the
protection of the freedom of expression in Africa occurred in 2004. The African Commission
established a special rapporteur on freedom of expression in Africa. Basically, it is an
expert, an African expert who is gonna be responsible for overseeing the implementation of Article
Nine of the African Charter. And telling states, monitoring
states implementation, and telling them when and
where they are not doing what they should do. A few years later, the mandate
of the special rapporteur was extended to include, specifically, access to information held
by public authorities. So, what we have in
Africa at the text level, is a fairly extensive system of protection for freedom of expression. The system of enforcement
is also fairly extensive. They are still in their infancy stage. Because they came about, you
know, over the last decade, or possibly two decades. But have so far demonstrated, in my view, a willingness to deliver important rulings protecting freedom of expression and human rights in general. I’ve already mentioned the Commission. In addition to the Commission, there is also the African
Court for Human Rights and their sub-regional instrument. Such as the Court of Justice
for the East African Community, or the West Africa Economy
Community, or ECOWAS. The African Court delivered
its first judgement in 2009, and as of today has ruled over 25 cases. This include a 2014 case
on freedom of expression. The court ruled against Burkina Faso in a case brought by the
family of a newspaper editor, who was murdered in 1998. The court found that
Burkina Faso had failed to properly investigate the murder. And had failed, in its
obligation to protect journalist. The African court judgement provided an authoritative interpretation
of the African Charter. And, it is having a
large impact on the right to freedom of expression. And in particular, on the
fight against the impunity for crimes committed against journalist. The East African Community is an inter-governmental organization
composed of six countries in the African Great Lake
region of Eastern Africa. It is supported by an East
African Court of Justice, which has jurisdiction
over the interpretation and application of the East
African Treaty of 1999. And, it has already
delivered very progressive ruling on the protection of human rights. Including, on the protection
of freedom of expression earlier this year, 2016. West Africa also has its
own sub-regional institution called the Economic Community
of West Africa, or ECOWAS. ECOWAS has established a
court which has competence to rule on human rights violation through an individual complaint
procedures, since 2005. Particularly note worthy, is
the fact that local remedies do not need to have been exhausted. Because, cases are brought to
the ECOWAS court of justice. It means that an individual
who has complained, or whose rights have been
violated, but who cannot find justice in either a country. And who think, that in any case,
justice cannot be delivered can go directly to ECOWAS to
seek remedies and redress. The jurisprudences of now
is not as extensive as that of the European system or
the Inter-American system, so comparative analysis is premature. However, as I will show
in a supplementary video, in Africa those bodies
at the African level, or at sub African level,
have already delivered very important ruling on
freedom of expression. For the protection of
freedom of expression on the African continent. To wrap up, we have
reviewed in this segment a third system of protection
for freedom of expression, that of Africa. The standard protecting freedom
of expression in Africa, present many similarities with those in Europe and Latin America. And indeed, with the international system. Africa has also established
an extensive system of enforcement for the protection
of freedom of expression. Including special court,
including a special rapporteur, including the African Commission. Some of which are binding on member state. Next and in conclusion, we will review the baby steps taken by
the rest of the world. Asia and the Middle East, in particular, to establish regional
systems of accountability for the protection of
freedom of expression.

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