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To: Senate Committee on Information
CC: Freedom of Information Coalition, African
Democracy Group, Transparency
International, and TIRI
From: Juliet Ume-Ezeoke, LL.M, Member, International
Media Lawyers Association
(IMLA)
Date: 26/04/2005
Re: International Perspectives on Freedom of
Expression and Information
1. International
Comparative Regulatory Framework and Freedom of Information1
In Africa, the greatest obstacle to development
is poverty, lack of transparency and accountability in governance. Over
the years, dictators and sit tight presidents who do not have regard for
rule of law, and human rights have occupied leadership positions. Nigeria
in particular, presents an example of a country in Africa where 29 years
of military rule has deprived the majority of the citizen the opportunity
to benefit from its huge human and material resources (see UNDP and World
Bank Development Reports 2003). Following the 1999 elections, and the
return to civilian rule, efforts are now being made to stabilize the hard
earned democracy. However, enthroning true democratic values will remain
an illusion and indeed a luxury for the future generation of Nigerians
unless the current administration can develop a level playing field for
everybody to participate in the political, social and economic development
of Nigeria.
a). Definition
Freedom of information and expression has long been seen as
the foundation stones of a democracy that helps to secure other rights and
freedom. Therefore, the importance of the proposed Freedom of Information
bill, which is currently before the Nigerian National Assembly, cannot be
underestimated. The United Nations under Article 19 of the Universal
Declaration of Human Rights (UDHR), 1945 stated what has become the norm
of freedom of expression to wit:
‘Every one has the
right to freedom of opinion and expression; this right includes the
freedom to hold opinions without interference and to seek, receive and
impart information and ideas through the media and regardless of
frontiers”
The essence of freedom of information and expression has
been well articulated as meaning either one or two of the following2
• It is the right to voice political, cultural,
social and economic opinions;
• It is the right to access information on
government policies and actions;
• It allows citizens to influence government
policies and to change the way
government
exercises democratic rights;
• It allows people to make informed decisions
about their lives;
• It provides the framework in which man-made
catastrophes such as famine, debt
burden, corruption,
economic and financial crime, and AIDS epidemic can be
prevented;
• It guarantees the right to participate in all
of the above free from fear,
persecution,
imprisonment, torture or death.
b). The Regional and National Laws and Policies
Following the UDHR declaration, member countries including
African Countries provided for the protection of freedom of expression in
their constitution. At the regional level, the European Union3,
the Inter American Commission4 and the African Union5
enshrined freedom of expression as one of the basic conditions
for the progress of democratic societies and of the development of each
individual.
In Nigeria, the current prevailing law is chapter
four of the Constitution which provides generally under Section 39 for the
protection of freedom of expression without specific provision on the
right to access information within public and private institutions.
Under the South African Law, the 1996 Constitution
in S 16 (1) provides for strong protection of freedom of expression
including the right of the media and press to impart and receive
knowledge. This right can be only be limited by a state of emergency,
hate speech, incitement to violence and propaganda of war. Such a
limitation as explained in S. 36 must be seen to be reasonable and
justifiable in an open and democratic society based on equality and
freedom taking into account what should be less restrictive and not a
general sweeping statement ’on national security
and public interest”.
Ss 32 and 33 of the South African Constitution further
provides for right of access to all information held by the state and
private persons that is necessary for the protection of rights in that
society and also for administrative justice that is fair, lawful,
reasonable, and procedurally fair (that is the right to be heard by an
independent judicial or administrative mechanism).
Thus the importance attached to freedom of information and
the press in South African ensures pluralism and protects diversity of
opinion.
When compared to Nigeria and Zimbabwe, South Africa
has indeed expanded the frontiers for access to information and expression
in the continent. Since 2002 elections, the Freedom of Information Bill
and Protection of Access to Information enacted by the Zimbabwean
government has been criticized by national an international media as being
repressive. The Government has clamped down on journalists and media
houses, thus denying them the constitutional guaranteed right to
information and freedom of the press. Even though S. 20 of the Zimbabwean
constitution guarantees the right to freedom of expression, this has been
constantly violated by the Government through reliance on national
security measures, public order, morality, and protection of reputation of
people in governance. An attempt by the judiciary to expand
the protection of these rights led to the sacking of former Chief Justice
Gubbay by President Robert Mugabe through death threats. In order to
extend his tenure in office, he replaced the justices of the Supreme Court
with a bunch of lawyers whose only task is to put the stamp of judicial
authority on every atrocity committed by the current administration
including the clamping down on independent newspapers and journalists.
Any perceived opposition group or expression of thought
different from that of the ruling party is considered propaganda against
constituted authority. Given this scenario, and all the restrictions
against freedom of expression, Zimbabwean government has not succeeded in
stopping the opposition. Will it then be able to shut off access to
information and right to freedom of expression by the citizen of that
country? It has become glaringly obvious from events in that country that
compromising the fundamental rights of individuals or groups in any
society will only lead to chaos.
In Nigeria, deliberate attempt by the present
administration to ignore the need for the freedom and right of access to
information of private and public institutions, restriction of circulation
of report of panels of inquiries against past corrupt leaders, and non
implementation of report of the Human Rights Investigation and Violation
Commission (HRVIC)6 and the Okigbo report has meant that human
rights violations, extra-judicial killing, ethnic and political violence,
inflation of contracts, money laundering, embezzlement of public funds and
wanton corruption has become a way of life for the Nigerian leadership,
otherwise how can one explain that four years after the Freedom of
Information bill and the Whistle Blowers’ Act was forwarded to the
National Assembly, it is yet to be passed into law.
Since 1999, when the Obasanjo administration came into
office, not less than a 100 Bill has been passed into law, but the two
bills that underpin the essence of democracy, guarantees access to
information, protects journalistic sources while reporting high profile
crime such as, money laundering, financial crime, corruption and abuse of
office by public officials has been relegated to the background.
Juxtaposed against the trend in other African countries, it
paints gloomy picture of the type of leadership that Nigeria will provide
to the African Continent as it assumes the chair of the African Union. It
is instructive to point out that the Nigerian President occupies the chair
as a representative of the Nigerian nation and not in his own right.
Therefore, his actions must reflect the values and principles of a
democrat, and respect for rights of all individual as enshrined in the
African Charter on Human and Peoples Rights (commonly referred to as the
‘African Charter’). It is only expected that the current administration
will not by seeking to amend the Freedom of Information bill, which was in
the first instance initiated by Nigerian vibrant civil society, weaken and
make it less effective. The Government must guard against inserting
restrictive clauses that will take away the constitutional guaranteed
rights of the people of Nigeria.
IV. Enforcing the Application of International
Standards
Article 9 (1) & (2) of the African Charter
states that ‘every individual shall have the
right to receive information, express, and disseminate his view within the
law…”
These rights, with the attendant duties only requires that
the rights must be expressed in line with responsibilities expressly
defined by the law and not that of the imagination of any Government in
power. Thus in the case of Media Rights Agenda and Constitutional
Rights Project Vs. Nigerian Government8 the African
Human Rights Commission espoused the need for the protection of freedom of
expression and information. It is worth repeating here:
“National laws cannot set aside the right to express
one’s opinion as stated in the charter, this would then make the
protection of rights ineffective. International human rights standard
must prevail over contradictory national law. It went on to say that any
limitation to the charter must be in conformity with the provisions of the
charter which do not provide derogations except to the extent stated in
Article 27 (2) requesting that rights shall be exercised with due regard
to the right of others, collective security, morality and common
interests… “The Nigerian Government in 1998 was requested by the African
Commission to bring its laws, which were in violation of Article 6,7,9,14
and 16 in conformity with the Charter”.
In guaranteeing the right to freedom of expression and
information of the people in the European Union, the European Human Rights
Commission and the Court held in Fressoz and Roire V French government9
that the press has a very important role to play in the society and as
such any citizen including the press should be allowed to have information
which even though may be considered confidential is essential for public
debate and interest especially tax assessments to determine the nature of
leaders who are governing the nation. Also the Council of Ministers in
Europe (COE) in two recommendations emphasized the need for clear
interpretation of what constitutes national security and public interest
in the laws of the member states and calls for more freedom of
information, access to the public and independence of Public Broadcasters.
Recommendation 110
► Principle 1 (Right of non-disclosure of
journalists) Domestic law and practice in member States should provide for
explicit and clear protection of the right of journalists not to disclose
information identifying a source in accordance with Article 10 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter: the Convention) and the principles established herein, which
are to be considered as minimum standards for the respect of this right.
► Principle 7 (Protection against
self-incrimination) The principles established herein should not in any
way limit national laws on the protection against self-incrimination in
criminal proceedings, and journalists should, as far as such laws apply,
enjoy such protection with regard to the disclosure of information
identifying a source.
Recommendation 1111
► Regulatory authorities should have the power to
consider complaints, within their field or competence, concerning the
broadcasters’ activity and to publish their conclusion regularly.
► When a broadcaster fails to respect the law or the
conditions specified in his license, the regulatory authorities should
have the power to impose sanctions, in accordance with the law.
► A range of sanctions, which have to be prescribed
by law, should be available, starting with a warning. Sanctions should be
proportionate and should not be decided upon until the broadcaster in
question has been given an opportunity to be heard. All sanctions should
be open to review by the competent jurisdictions according to national
law.
Following the Windhoek Conference in Namibia organized by
United Nations Education, Social Cultural, Organisation (UNESCO);
participants adopted key principles on the print media-to the effect that
the press should be independent from government political, or economic
control. Another International conference in 1995 in Johannesburg, South
Africa, brought together participants from the entire region in the
world. The Conference adopted specific Principles in 199513
focusing on national security, freedom of expression and access to
information with the aim of setting standards for legitimate
restrictions on freedom of expressions and information based on national
security. This conference marked a watershed in the wave of
democratization wind that swept through most African countries in the 90s.
‘The meeting noted
that even though a state can limit the right to freedom of information,
such limitation must be in the public interest and not based on abuse of
national security concerns, which is prevalent in many African countries
where there is often so much pressure on the journalists and opposition to
refrain from reporting matters of public interest’.
The key principles can be summarized into four categories
as follows:
► General Principles: Restriction should only
be based on time, necessity, and national security interests must be
legitimate and narrowly defined by an independent and impartial tribunal
or court. There should also be time limits on emergency restrictions on
freedom of expression.
► Restriction on freedom of expression: can
only arise if it is intended to incite violence.
► Restriction on freedom of information: only
arises if the disclosure threatens or is likely to cause substantial harm
to a legitimate aim.
► Such a restriction must be based on rule of law
and respect of democratic principles and
other rights.
V. Recommendations to the Working Group:
► The Nigerian Freedom
of Information Bill and the Communication Policy should apply
internationally accepted standards as reflected in the Johannesburg
summit.
► It should not only exceed expectation of the
Nigerian populace, it should indeed seek to match and compete with the
position in countries like South Africa.
► As we assume the leadership of the African Union,
we need to set example and become role modes in the continent.
► The important role we play in the community of
nation’s calls for appropriate safe guards against corrupt leaders and the
use of public office for enrichment.
► National Security laws cannot be more important
than public interest; indeed the interest of the public who elect the
leaders should be paramount and should be held in high esteem than a
subjective and often selfish interpretation of what constitutes national
security and public order.
► The opinion of the masses and the organized civil
society is sine qua non in any democratic governance; this committee
should invite the civil society for a public hearing and ensure that their
input is reflected in the final version of the Bill.
► Law is meant for man
and not man for law, given that scenario, any law passé in Nigeria that
does not pass the test of public scrutiny and acceptance can as well be
declared null and void ab initio.
VI. Conclusion:
While this presentation and analysis are not exhaustive, we
urge you to critically assess the impact that this Bill will have on the
political, social and economic sectors in the country. The future of this
country lies in your hand as you make your recommendation to the
president, it must be based on an unbiased, selfless, and genuine interest
to change the current situation in Nigeria, where more than 70% of our
brothers, sisters, children are living below poverty level due to no cause
of theirs but simply because our resources have been looted by our
leaders!
This is the only opportunity we have to guard future
occurrences of the magnitude of crime and corruption that have bedeviled
this nation; it is either now or never!
History will judge each and every one of you for the
decisions you make today. We are watching and the world is watching too.
We either expose the villain or we risk being swallowed up by the villain.
________________
1Juliet Ume-Ezeoke is of
the International Association of Criminal Justice Practitioners (IACJP).
As part of her contribution to the debate on governance issues writes this
expert opinion on the FOI Bill. IACJP hopes that the comments and
comparative analysis of FOI issues discussed in this paper will assist the
work of the Presidential Committee.
2The 2003 Report of
Article 19, a UK based NGO working on promoting freedom of information and
expression across all countries and culture.
3Article 10 of the
European Convention on Human Rights, 1950
4 Article 13 of the Inter
American Convention on Human Rights 1969
5 Article 9 of the
African Charter on Human and People’s Rights, 1981
6 The panel, headed by
retired justice of the Supreme Court, was set up by the President in 1999
to investigate Human Rights abuses form 1967 to 1999. The report and
recommendation of the Panel has not being released since 2002 when it was
submitted.
7 The Okigbo report, which
was submitted since-has not being released to the public and none of the
recommendations has being implemented because it indicted some ex-military
generals for corrupt practices, embezzlement of public funds and
misconducts. Some of these generals are now planning to come back to
politics.
8 African Human Rights
Commission No:
9 European Human Rights
Court Decision of January 21, 1999
10 RECOMMENDATION No. R
(2000)71 of COE on journalist’s right of non-disclosure
11RECOMMENDATION No. R
(2000) 23 (2) of COE on independence and regulatory functions
of Public Broadcasters.
12Theme of Conference –
Promoting an Independent and Pluralistic African Press
13The Conference addressed
the problem of national security and access to information
JUME/22/7/04
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