The African Commission on Human and Peoples’ Rights last month published the Declaration on Principles of Freedom of Expression and Access to Information in Africa, adopted at its 65th Ordinary Session in November 2019 in Banjul, The Gambia, to update and replace the Declaration of Principles on Freedom of Expression in Africa, which has been in existence since in 2002.
Formally released on April 17, the Declaration elaborates on the scope and content of Article 9 of the African Charter on Human and Peoples’ Rights and was developed under the auspices of the Commission’s Special Rapporteur on Freedom of Expression and Access to Information in Africa, Commissioner Lawrence Mute.
In a statement announcing the publication of the Declaration in English, Commissioner Mute expressed the hope that “States, as well as non-state actors, will use the principles established in the Declaration for purposes of ensuring the rights to freedom of expression and access to information which are enunciated in Article 9 of the African Charter.”
He also encouraged “stakeholders to use the Declaration to ensure that responses to the COVID-19 pandemic do not violate the rights enshrined in Article 9 of the African Charter.”
Commissioner Mute said texts of the Declaration in French, Portuguese and Arabic will be posted on the Commission’s website soon.
According to him, the Declaration was prepared pursuant to Article 45(1) of the African Charter, which requires the Commission to promote human and peoples’ rights, among others, by formulating and laying down principles and rules to solve legal problems relating to human and peoples’ right and fundamental freedoms upon which the African States may base their legislation.
Commissioner Mute explained that “the Declaration establishes or affirms the principles for anchoring the rights to freedom of expression and access to information in conformance with Article 9 of the African Charter which guarantees individuals the right to receive information as well as the right to express and disseminate information. The Declaration, therefore, forms part of the soft-law corpus of Article 9 norms developed by the African Commission, including the Model Law on Access to Information for Africa as well as the Guidelines on Access to Information and Elections in Africa, adopted by the Commission, respectively, in 2013 and 2017.”
He noted that although the 2002 Declaration elaborated on the scope and content of Article 9 of the African Charter, “over the last two decades, major pertinent issues emerged which were addressed insufficiently. This was notably the case in relation to access to information and the interface between Article 9 rights and the internet.”
Commissioner Mute explained that it was as a result of this that initially in 2012 and then again in 2016, the Commission decided to modify the 2002 Declaration to include access to information while also taking note of developments in the internet age.
He said the Declaration, therefore, consolidates developments on freedom of expression and access to information guided by hard-law and soft-law standards drawn from African and international human rights instruments and standards, including the jurisprudence of African judicial bodies.
Commissioner Mute remarked that the preparation of the Declaration was led by him and that in the process, he worked closely with stakeholders from State and non-State actors to generate the concept for and to prepare the Declaration.
He said: “Drafting was spearheaded by a Technical Drafting Team constituted by a team of 15 individuals drawn to cover relevant Article 9 themes as well as various legal traditions on the continent. Technical meetings were held in Nouakchott, Mauritania, on 22 April 2018; Mombasa, Kenya, from 11 to 12 October 2018, and again from 28 to 29 March 2019; and Pretoria, South Africa, from 30 September to 01 October 2019.”
In addition, consultations to validate the Declaration were launched at a panel discussion on the Declaration held on 29 April 2019 at the 64th Ordinary Session of the Commission, in Sharm-el-Sheikh, Egypt while during May and June 2019, State and non-State actors were invited through a public call to provide feedback; and a similar specific call was sent to each State Party to the African Charter.
Commissioner Mute also recalled that “Validation workshops were also held covering State and non-State representatives in Maputo, Mozambique, from 11 to 12 July 2019; Windhoek, Namibia, from 19 to 20 September 2019; and Banjul, The Gambia, from 18 to 19 October 2019.”
Part I of this Declaration establishes the general principles which apply to the whole Declaration while Part II sets out principles on freedom of expression, and Part III sets out principles on access to information. Part IV addresses freedom of expression and access to information on the internet and Part V establishes principles on the Declaration’s implementation.
He thanked all State and non-State stakeholders who participated in the preparation of the Declaration by making contributions to the approach and content of the Declaration and also expressed gratitude to all those who provided technical or financial support to the process, including the Technical Drafting Team.
Commissioner Mute expressed confidence that the “Declaration will anchor the promotion, protection and interpretation of Article 9 of the African Charter at the continental, regional and municipal levels and within the executive, legislative and judicial branches as well as amongst the non-State sector, including the media, civil society and indeed the public generally.”