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Interview with special rapporteur on freedom of expression in Africa
Hakima Abbas and Pansy Tlakula
Extracted from Pambazuka News 328
November 15, 2007

http://pambazuka.org/en/category/comment/44418

Commissioner Faith Pansy Tlakula, member of the African Commission on Human and Peoples' Rights with special responsibility for freedom of expression talks to Hakima Abbas about how the African rights system works and the challenges it faces.

Hakima Abbas (HA): Please could you provide us with a brief overview of the situation of freedom of expression in Africa.

Faith Pansy Tlakula (FPT): It's difficult to give an overview of the situation in Africa as a whole. As I have pointed out several times since my appointment, the standards exist in principle and freedom of expression is indeed protected in Africa by different instruments. So, as far as the adoption of instruments is concerned, there doesn't seem to be an issue. However, in practice, freedom of expression is not yet a reality for many people on the continent so the issue is implementing the existing principles. While the media in Africa has begun to act as a cornerstone of democracy and source of balanced information in some states, there is clearly still place for improvement in the right to freedom of expression.

In my reports to the African Commission on Human and Peoples' Rights (the commission, hereafter), I have repeatedly expressed my concerns over reports of alleged violations of the right to freedom of expression in a number of African states and I am constantly receiving a considerable number of such reports.

These allegations included, but were not limited to:

• Harassment, threats and intimidation of journalists and media practitioners, undue political interference with the media, victimisation of media houses deemed critical of government policies, seizure of publications and destruction of equipment, and closure of private media establishments
• The adoption of repressive laws or amendments to existing legislation that limit freedom of expression and the free flow of information
• Reports of disappearances, arbitrary arrests and detention of journalists and media practitioners, who in some cases are held incommunicado and for extended periods of time without charges or due process of law
• The murder of journalists with impunity, torture and other forms of ill-treatment and death in custody of journalists and media practitioners.

HA: What mechanisms are in place in Africa to guarantee freedom of expression?

FPT: The African Commission on Human and Peoples' Rights was established in 1987 by virtue of Article 30 of the African Charter on Human and Peoples' Rights (the charter, hereafter) with the specific mandate to promote human and peoples' rights and ensure their protection in Africa. The promotional mandate of the commission involves education and sensitisation with a view to creating a culture of respect for human rights on the continent. The protective mandate of the commission entails essentially the receipt and consideration of complaints alleging human rights violations. In addition to these two main mandates, the commission is also empowered to interpret the charter at the request of a state party, the African Union (AU), or an institution recognised by the AU.

Under Article 9, the charter guarantees every individual the right to receive information and express and disseminate their opinions within the law. Although this right is considered as a cornerstone of development, its protection under the charter could be said to have been severely watered down by the clawback clause inserted within the same article. Indeed, while the first paragraph provides for an unlimited right for every individual to receive information, the right of every individual to express and disseminate their opinions within the law, as provided for in paragraph 2, may be interpreted by some states in a manner that unreasonably limits it.

Aware of the importance of upholding respect for the right to freedom of expression to the nurturing of democracy, human rights and sustainable development, and faced with many violations of the right to freedom of expression, the commission has, throughout the years, adopted various measures to strengthen the promotion and protection of this right.

One of the first initiatives taken by the commission was through pronouncements and recommendations made in the context of individual communications. Indeed, the African Commission on Human and Peoples' Rights has, through its communication procedure and the broad interpretation powers it enjoys under the charter, developed jurisprudence on human and peoples' rights in general, and the right to freedom of expression in particular.

The commission has also dealt with issues of freedom of expression in Africa through resolutions and declarations and by promoting dialogue with member states when states' reports are being considered, or when commissioners make promotional and fact-finding missions to member states.

Moreover, at its 32nd ordinary session held in Banjul, Gambia in October 2002, the commission adopted, by resolution, the Declaration on Principles of Freedom of Expression in Africa. The declaration sets out important benchmarks and elaborates on the precise meaning and scope of the guarantees of freedom of expression laid down under Article 9 of the African Charter on Human and Peoples' Rights.

In view of the situation of the right to freedom of expression in Africa, the African Commission on Human and Peoples' Rights initially appointed a Special Rapporteur on Freedom of Expression in Africa in December 2004. I was appointed as mandate-holder in December 2005.

The state of freedom of expression on the African continent prompted the commission to adopt a resolution in November 2006. Expressing its concerns over the current situation, the commission called on member states to:

take all necessary measures in order to uphold their obligations under the African Charter on Human and Peoples' Rights and other international instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights providing for the right to freedom of expression

but also to:

extend their full collaboration with the mandate of the Special Rapporteur on Freedom of Expression in Africa, in order to strengthen the right to freedom of expression on the African continent and work towards the effective implementation of the principles enshrined in the Declaration of Principles on Freedom of Expression in Africa and other applicable human rights standards in the region in order to achieve this goal.

Finally, in order to ensure effective implementation of the charter, the AU established the African Court on Human and Peoples' Rights (the court) under the Protocol to the African Charter on Human and Peoples' Rights establishing an African Court on Human and Peoples' Rights (the protocol). The protocol was adopted in June 1998 and entered into force in January 2004. Twenty-three states have ratified the protocol so far and the court is now operational. The court will act in an adjudicatory and advisory capacity. According to the preamble and Articles 2 and 8 of the protocol, the court complements the protection mandate of the commission under Article 45 (2) of the charter. Unlike the commission, the court's decisions are binding and final and not subject to appeal.
Under Article 3 of the protocol:

1. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.
2. In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.
The court can therefore enforce other human rights treaties ratified by African states.
The protocol also allows the court to issue advisory opinions, in accordance with Article 4, which provides that:

1. At the request of a Member State of the OAU, the OAU, any of its organs, or any African organisation recognised by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate or dissenting decision.

Besides, the court may also 'try to reach an amicable settlement in a case pending before it in accordance with the provisions of the Charter'.

HA: What are the challenges of guaranteeing respect for freedom of expression in Africa?

FPT: Obviously, there are many challenges but they also differ from country to country. In some cases, it could be lack of understanding of the principles, and in others, a total disregard for them, which shows the importance of adopting a country-specific approach to this issue.

As I mentioned earlier, African states are obliged to uphold the existing principles of freedom of expression. They have to ensure respect for the rights recognised by the African Charter on Human and Peoples' Rights and to support the African Commission on Human and Peoples' Rights in its work to guarantee the implementation of the charter. Moreover, Principle XVI of the Declaration of Principles on Freedom of Expression in Africa clearly provides that: 'States Parties to the African Charter on Human and Peoples' Rights should make every effort to give practical effect to these principles'.

One should not be too pessimistic, however, as the progress and achievements made over the last few decades deserve neither to be underestimated nor forgotten. These achievements, which include the adoption of the Declaration of Principles on Freedom of Expression in Africa and the appointment of a Special Rapporteur on Freedom of Expression, simply need to be seen as the ground on which we now have to build an African continent characterised by free media and the free flow of information.

HA: What is your role and mandate as Special Rapporteur on Freedom of Expression?

FPT: In a nutshell, my role as special rapporteur is to monitor freedom of expression in Africa and report to the African Commission on Human and Peoples' Rights accordingly. My role includes monitoring violations of the right to freedom of expression on the continent, recommending to the commission measures to address the violations and assisting AU member states to review their national media laws and policies to comply with the principles set out in the declaration. Part of my mandate is also to take action on behalf of alleged victims of violations of the right to freedom of expression, including by sending appeals to member states, asking them for clarifications on reports forwarded to me by different reliable sources.

In addition to, and in conformity with, the relevant resolutions of the commission, my work reflects the provisions of the African Charter on Human and Peoples' Rights, the Declaration of Principles on Freedom of Expression in Africa as well as other relevant international and regional human rights instruments including the Universal Declaration of Human Rights (especially Article 19), the International Covenant on Civil and Political Rights (especially Article 19), as well as other treaties, resolutions, conventions and declarations relating to the right to freedom of opinion and expression.

According to the resolution on the mandate and the appointment of a special rapporteur on freedom of expression in Africa, my mandate includes:

• Analysing national media legislation, policies and practice within member states, monitoring their compliance with freedom of expression standards in general and the Declaration of Principles on Freedom of Expression in particular, and advising member states accordingly
• Undertaking investigative missions to member states where reports of massive violations of the right to freedom of expression are made and making appropriate recommendations to the commission
• Undertaking country missions and any other promotional activity that would strengthen the full enjoyment of the right to freedom of expression in Africa
• Making public interventions where violations of the right to freedom of expression have been brought to the rapporteur's attention. This could be in the form of issuing public statements, press releases, or urgent appeals;
• Keeping a proper record of violations of the right to freedom of expression and publishing this in reports submitted to the commission
• Submitting reports at each ordinary session of the commission on the status of the enjoyment of the right to freedom of expression in Africa.

In the conduct of this mandate, it is possible and, I believe, highly desirable for me to hold meetings with government officials to make recommendations about applying accepted standards of freedom of expression. This advisory role is crucial to the success of this mandate; I hope member states will gradually come to see it as a useful tool in helping them to comply with their obligations under international human rights law.

HA: What is the relationship between the special rapporteur and the African Commission on Human and Peoples' Rights?

FPT: It is a very close relationship. Indeed, unlike United Nations special rapporteurs, for instance, who are independent experts, the special rapporteurs are members of the commission, actual commissioners, who are appointed to a specific mandate. This means that I am not only the Special Rapporteur on Freedom of Expression in Africa but I am also one of the 11 members who form the commission.

Besides, in view of the fact that we work part-time as commissioners, the bulk of the work is entrusted to the secretariat of the commission. The secretariat, for instance, will assist in the preparation of missions, drafting of mission reports and speeches, undertake research, hold organising workshops and seminars, raise funds for activities, etc. At the moment, there is one legal officer at the secretariat who is specifically assigned to my mandate.

HA: What impact have your role as special rapporteur, and the work of the African Commission on Human and People's Rights more broadly, had on human rights for the people of Africa?

FPT: The work of the commission has had an impact in several ways as you can see from my responses to the previous questions. For instance, under its promotional mandate, the commission raises awareness about the existing human rights standards and can assist in elaborating on these standards. For instance, as far as the right to freedom of expression is concerned, I could mention the adoption of the Declaration of Principles of Freedom of Expression, which elaborates on Article 9 of the African Charter on Human and Peoples' Rights. The declaration is indeed a good example of the impact of the work of the commission in general and of the mandate of the Special Rapporteur on Freedom of Expression in Africa in particular, which has been key in the elaboration of the declaration.

HA: Some might say that, given the continued human rights violations that plague the continent, the African human rights system including the commission is a failure. Would you agree?

FPT: Of course, I would disagree that the system is a failure. Obviously, huge challenges remain, but we also have to look at the achievements, even if these sometimes appear very limited compared to the challenges. Realistically, the situation on the continent will not change overnight but we have to be optimistic and use our strengths and build on our achievements to move forward instead of thinking about our past mistakes - some might say failures - unless we are looking back only to learn from these past experiences.

HA: What do you see as the challenges and strengths of the African Commission on Human and Peoples' Rights?

FPT: I think that we all know about the challenges, including limited resources (financial and personnel), which create a lot of other difficulties. However, since we are celebrating the 20th anniversary, I would like to focus on the strengths of the commission, which include its 'accessibility'. The commission is the forum where NGOs, individuals and other alleged victims of human rights violations can have their voices heard. It is also the place where a true dialogue can be initiated between member states and alleged victims or organisations that want to bring a situation to the attention of the public at large. It is noteworthy that since the last ordinary session, the number of NGOs enjoying observer status with the commission has reached 367 and that the number of national human rights institutions with affiliate status has also grown over the years.

HA: In November 2007, the African Commission on Human and People's Rights will be celebrating its 20th year of existence. What do you feel has been the greatest accomplishment of the commission?

FPT: Increased sensitisation and recognition of the work done by the commission by different stakeholders. To have existed for 20 years is an achievement indeed, but at the same time, 20 years is a rather short period for an institution with a mandate as wide and far-reaching as that of the African Commission on Human and Peoples' Rights, given all the challenges it has to face. We must look at what has been achieved so far, take stock and fix ourselves realistic objectives for the future.

HA: Moving forward what do you think would strengthen the work and impact of the ACHPR?

FPT: I have mentioned the increased recognition of the work done by the commission, but there is a need for the commission to reach a wider, grassroots audience. I believe that the better the mandate and work of the commission are understood by everyone on the continent, and abroad, the greater the legitimacy of the commission and consequently the more collaboration it will receive from AU member states. We need to build more bridges.

HA: How can civil society and citizens in Africa help to ensure freedom of expression on the continent?

FPT: There is an obvious need for civil society, NGOs and other actors including me as Special Rapporteur on Freedom of Expression in Africa, to keep raising awareness of the principles of freedom of expression in Africa, to campaign for the implementation of the relevant instruments and to call on governments to respect their obligations under international human rights law by bringing their laws in line with international standards. Civil society and the citizens of Africa can also help in collaborating with my mandate by, for instance, continuing to send in information on alleged violations of the rights.

Only collaboration between all the actors involved, including, obviously, the full participation of the states, can ultimately lead to full respect of the right to freedom of expression on the African continent, and so the real co-existence of nations based on the principles of democracy. Indeed, together we can help states implement these principles by adopting a culturally sensitive approach, taking into account the different situations prevailing in each country and region of the continent. That is where the importance of raising awareness becomes truly relevant and where the work of a mandate such as mine draws all its significance.

* Hakima Abbas is the AU Policy analyst for Fahamu Networks for Social Justice

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