“(1) Every individual shall have the right to receive information.
(2) Every individual shall have the right to express and disseminate his opinions within the law.”
Article 9(1)
Article 9(1) of the African Charter on Human and Peoples’ Rights (African Charter) provides that all individuals shall have a right to receive information. The African Commission on Human and Peoples’ Rights, in Article 19 vs. Eritrea, found that a ban on members of the press constituted a violation of the right to receive information.
In Jawara v. The Gambia, the Commission held that:
“the intimidation and arrest or detention of journalists, for articles published and questions asked deprives not only the journalists of their rights to freely express and disseminate opinions but also the public of their right to information.”
It may be deduced from a reading of multiple decisions of the Commission, including the foregoing, that the right to receive information may not be precisely quantifiable, but is strongly tied to the right to express opinions.
In Law Office of Ghazi Sleiman vs Sudann (II), the Commission, restating the words of the IACtHR, held:
“when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated but also the right of all others to receive information and ideas.”
However, the Commission further established that certain classes of communication may hold higher relevance to society, and thus deserve a higher level of protection, holding that:
“in keeping with its important role of promoting democracy in the content, the African Commission should also find that a speech that contributes to political debate must protected.”
Thus, the right to disseminate information or express opinions that have a clear capacity to contribute to governance or the promotion of human rights ought to receive a higher standard of protection than other rights.
Article 9(2)
Article 9 (2) of the African Charter provides for the right to freedom of expression. However, like many of the rights in the Charter, this right has been made subject to certain restrictions through the clawback clause: “within the law.”
In Lohé Issa Konate v Burkina Faso (hereinafter referred to as “the Issa Konate Judgment”) [paras 145-166], the African Court on Human and Peoples’ Rights (The Court), relying on the jurisprudence of the Commission and other international and regional human rights bodies, held that the terms “prescribed by law” and “within the law” in Article 9(2) envisage the possibility that restrictions may be put in place on the exercise of freedom of expression provided that such restrictions are:
- Prescribed by law,
- Serve a legitimate purpose, and
- Are necessary and proportional as may be expected in a democratic society.
These elements are considered individually, below.
Prescription by Law
The right to express and disseminate opinions is subject to a far-reaching clawback clause. The right is required to be exercised within the boundaries of the applicable laws of State parties, leading to the question of whether or not national laws can effectively vitiate the right to freedom of expression.
In deliberating on this issue, the Commission, in Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (1999), held that “there must be proportionality in the restriction of the right in order not to render the enjoyment of such right nugatory or illusory.”
The Commission further held, also, that the terms “prescribed by the law” or “within the law” must be construed to mean that there must be no unnecessary [or unlawful] interference by the state and the law must be laid out with specific precision and clarity.
This is similar to the jurisprudence of the European Court on Human Rights as held in Meltex Ltd and Mesrop Movsesyan v. Armenia (2008):
The first step in the Court’s examination is to determine whether the denial of a broadcasting licence was “prescribed by law”, within the meaning of Article 10. According to its settled case-law, this expression, which is also used in Articles 9 and 11 of the Convention, and the expression “in accordance with the law”, used in Article 8 of the Convention, not only require that an interference with the rights enshrined in these Articles should have some basis in domestic law, but also refer to the quality of the law in question. That law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
Legitimacy of Purpose
The requirement that the restriction be prescribed by law has already been set out in much detail above. However, there is a question on the meaning and threshold of the legitimacy requirement and a further question on the meaning and threshold of the proportionality requirement.
The Court held, in expounding on the content of the restrictions of the right to freedom of expression, in the Konate judgment, that any restriction even when prescribed by law, must be found to have been necessary for either:
“(a) Respect for the rights of reputation others”
“(b) National security, public order, health, or public morality”
Proportionality
Proportionality is assessed as a measure of how the degree to which the restriction is necessary for achieving its objective of protecting others under the framework of legitimacy as discussed above.
In the Issa Konate judgment, the Court, building from among a range of sources, on the position of the U.N Human Rights Committee, on the unsuitability of custodial sentences in the limitation of human rights, found that the failure of the respondent to show that custodial sentences were necessary limitations on freedom of expression for the protection of the rights of members of the judiciary rendered any such sentences disproportionate.
The Validity of Domestic Criminal Defamation Laws
The Issa Konate judgment is particularly relevant to states that have criminal defamation laws. The Court, in this case, held that criminal defamation laws are a disproportionate measure for the restriction of the right to express an opinion, and are therefore incompatible with States’ human rights obligations.
