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ACHPR
mandates protection of freedom of expression without exemptions
MISA-Zimbabwe
November 14, 2008
The African
Commission on Human and Peoples Rights' (ACHPR) Special Rapporteur
on Freedom of Expression and Access to Information in Africa Advocate
Pansy Tlakula on 13 November 2008 expressed concern with the reports
she has received on violations of freedom of expression and access
to information in several African countries including Zimbabwe.
In her report to the 44th Session of the ACHPR in Abuja, Nigeria
Advocate Tlakula singled Zimbabwe, Sierra Leone, Eritrea, Nigeria,
Ethiopia, Lesotho and Cameroon as the offending countries. "The
Special Rapporteur has been informed that in the run-up to the 27
June 2008 presidential elections run-off (in Zimbabwe), numerous
journalists and leading cast members of plays perceived as critical
of the government were allegedly harassed, arrested and detained.
I have also received reports that journalists have been convicted
for offences such as intentionally publishing falsehoods contrary
to the country's media law," she said.
"In this regard, I would like to remind member states that
unlike other international human rights instruments, the African
Charter does not contain a derogation clause. Thus, regardless of
circumstances such as conflict, civil unrest or any other form of
emergency, States have a perpetual obligation to respect, promote,
protect and fulfil the right to freedom of expression as provided
under the African Charter and the Declaration on the Principles
of Freedom of Expression which supplements it."
She noted that only a few countries had adopted legislation on freedom
of information that conforms with regional and international human
rights standards and urged member states to ensure that their laws
on Freedom of Information conform with applicable regional and international
human rights standards particularly Principle 4 of the Declaration
on the Declaration on Principles of Freedom of Expression in Africa.
The Declaration states among other provisions, that public bodies
hold information not for themselves but as custodians of the public
good and everyone has the right to access that information, subject
only to clearly defined rules established by law. South Africa,
Mozambique, Malawi and Madagascar are the only four countries in
southern Africa whose constitutions expressly protect the right
to freedom of information.
"There is need for continuous dialogue with States reminding
them that adoption of effective freedom of information legislation
remains a yardstick for determining transparency and accountability
towards promotion of access to social and economic development in
any society which lays claims to adherence to democratic ideals,"
she said.
She paid tribute to Non-Governmental Organisations that have worked
"tirelessly" to promote the adoption of freedom of expression
laws and through whose intervention draft legislations have been
introduced in various member states. MISA-Zimbabwe has produced
a model access to information law as a lobby and advocacy tool for
the repeal of the draconian Access
to Information and Protection of Privacy Act (AIPPA).
Commissioner Tlakula noted that AIPPA which only provides for access
to information held by public bodies and for appeals to be lodged
with the statutory Zimbabwe Media Commission (which is still to
be constituted following the December 2008 Amendments), has been
widely criticised for its broad exemption provisions. The Special
Rapporteur drew parallels with the positive aspects of South Africa's
Promotion of Access to Information Act whose implementation is overseen
by the South African Human Rights Commission, an independent constitutional
body.
The South African Act contains exemption provisions that conform
with international human rights standards and is subject to the
public interest test. Its major weakness though is that it provides
for appeals against decisions of public and private bodies to be
lodged with the courts which are largely inaccessible to individuals
in terms of costs and inordinate delays.
Advocate Tlakula said all laws relating to criminal defamation wherever
they exist should be repealed or amended in conformity with the
provisions of the Declaration on the Principles of Freedom of Expression
in Africa. Laws on defamation should respect the following standards:
- no one shall
be found liable for true statements, opinions or statements regarding
public figures of which it was reasonable to make in the circumstances.
- public figures
shall be required to tolerate a greater degree of criticism.
- sanctions
shall never be so severe as to inhibit the right to freedom of
expression.
Applauding the
courage and resolve of journalists, media practitioners and NGOS
that have committed themselves to advancing the right to freedom
of expression at great personal risk as well as those that have
been killed in defence of that right, the Special Rapporteur said
she planned to introduce the African Commission Human Rights Journalist/Media
Practitioner of the Year Award. The winner of the award which will
honour journalists and media practitioners that have made outstanding
contributions to the advancement of freedom of expression and access
to information in Africa, will be announced at a ceremony during
the 45th Session of the ACHPR in May 2009 as part of commemorations
of the World Press Freedom Day.
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