African Commission Identifies Challenges Impeding Enjoyment of Freedom of Expression in Africa

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Commissioner Ourveena Geereesha Topsy-Sonoo, Special Rapporteur on Freedom of Expression and Access to Information in Africa

The African Commission on Human and Peoples Rights (ACHPR) has identified persistent attacks on journalists online and offline, the lack of accountability for the violations of their rights, the existence of draconian laws in many countries, increasing reports of internet and social media shutdowns, and the lack of allocation of adequate resources for implementation of freedom of information laws as some of the challenges impeding the protection of freedom of expression in Africa.

The Commission’s Special Rapporteur on Freedom of Expression and Access to Information in Africa, Commissioner Ourveena Geereesha Topsy-Sonoo, identified the challenges constraining the exercise and enjoyment of the right to freedom of expression in her “Inter-Session Activity Report” presented during the Commission’s 79th Ordinary Session held in Banjul, The Gambia, from May 14 to June 3, 2024.

The Inter-session Activity Report, issued on May 10, 2024, was presented pursuant to Rules 25(3) and 64 of the Rules of Procedure (2020) of the Commission and covered activities carried out by the Special Rapporteur from November 2023 to May 2024.

Commissioner Topsy-Sonoo noted in the report that although the special mechanism has made a lot of progress in promoting and protecting freedom of expression and access to information in Africa, a number of challenges over the years have negatively impacted the effective promotion and protection of the rights on the continent. She identified some of the challenges as:

• The lack of dissemination of the soft law documents related to freedom of expression and access to information adopted by the Commission by the States Parties, saying this has had an impact on their effectiveness at the national level.

• The existence of draconian laws which have a negative effect on the rights enshrined under Article 9 of the African Charter, such as the existence of libel and defamation in the national legislation of some States Parties, despite repeated calls from the special mechanism to decriminalize such offences.

• The slow process of enactment of access to information laws by States Parties, in some cases with bills to enshrine this right languishing in Parliament for long periods of time.

• The lack of allocation of adequate resources necessary for implementation of access to information, particularly for the effective functioning of oversight mechanisms established to monitor and ensure protection of the right to access information.

• The proliferation of online violations of the rights enshrined in Article 9 of the African Charter, particularly targeting specific groups such as women, journalists, and human rights defenders, among others.

• Increasing reports of internet and social media shutdowns, with a noticeable trend of restrictions during election periods.

• The persistence of attacks on journalists and other media practitioners, both online and offline, arbitrary arrest and detention, among others, in addition to the lack of accountability for violations of their rights.

• Lack of responses from State Parties to the Letters of Appeal from the Special Rapporteur, which negatively impacts effective monitoring of the situation of freedom of expression and access to information in Africa.

• The lack of comprehensive information provided on the promotion and protection of freedom of expression and access to information in the Periodic Reports submitted by States Parties to the Commission.

• The lack of consistent submission of shadow reports from NHRIs and NGOs on issues related to freedom of expression and access to information, which would provide crucial information not available to the special mechanism during consideration of State Periodic Reports, and formulation of recommendations thereafter.

• The lack of media diversity in some countries.

Outlining the achievements of the special mechanism, Commissioner Topsy-Sonoo said the Special Rapporteur had made good progress towards protecting and promoting freedom of expression and access to information in Africa through the adoption of soft law documents related to freedom of expression and access to information in accordance with Article 45(1)(b) of the African Charter, which mandates the Commission “to formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations.”

She explained that the Special Rapporteur, in collaboration with its partners, has initiated the development of a number of soft law documents in order to enhance understanding of Article 9 of the African Charter and identified such documents as the Model Law on Access to Information for Africa, adopted by the Commission during its 53rd Ordinary Session in April 2013; the Guidelines on Access to Information and Elections in Africa, which was adopted by the Commission during its 61st Ordinary Session in November 2017; as well as the Declaration of Principles of Freedom of Expression and Access to Information in Africa adopted by the Commission at its 65th Ordinary Session in November 2019, which was adopted in order to update the principles contained in the Declaration of Principles on Freedom of Expression adopted by the Commission in 2002.

Commissioner Topsy-Sonoo urged all stakeholders, including States Parties, national human rights institutions (NHRIs), civil society organizations and (CSOs), among others, to familiarize themselves with and make use of the soft law documents as they have been developed to aid the promotion and protection of the rights to freedom of expression and access to information in Africa.

She noted that a crucial aspect of the special mechanism’s mandate are the interventions issued in response to reports of violations of the right to freedom of expression and access to information, which have been brought to the Special Rapporteur’s attention.

According to her, usually such interventions are in the form of Letters of Urgent Appeal sent to the Government of the concerned State Party, where a violation is alleged to have occurred and the letters generally express concerns on the allegations received, call for action from the Government, in addition to urging action to ensure protection of the victims, investigation of the violations and accountability.

Commissioner Topsy-Sonoo lamented that “Whereas this is an effective means of intervening in situations where violations have been brought to the attention of the Special Rapporteur, it is noted that the majority of States Parties do not respond to the Letters of Appeal, which severely limits the Special Rapporteur’s ability to engage further on the alleged violations.”

She also identified another method used by the Special Rapporteur to raise awareness on freedom of expression and access to information as Resolutions for adoption during the Sessions of the Commission.

According to her, during the tenure of the Special Rapporteur, several Resolutions have been adopted which highlight specific thematic, and at times country-related, issues relevant to Article 9 of the African Charter. She cited some examples as Resolution 221 on the Attacks against Journalists and Media Practitioners in Somalia adopted during the 51st Ordinary Session in May 2012; Resolution 522 on the Protection of Women Against Digital Violence in Africa adopted during the 72nd Ordinary Session in August 2022; and Resolution 580 on Internet Shutdowns and Elections in Africa adopted during the 78th Private Ordinary Session in March 2024.

Commissioner Topsy-Sonoo explained that since 2006 the Commission’s special mechanism has collaborated with the other special rapporteurships on freedom of expression, including the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression; the Organization for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media; and the Organization of American States (OAS) Special Rapporteur on Freedom of Expression through the release of Joint Declarations in commemoration of World Press Freedom Day.

She said these declarations, which are issued annually, highlight various topics of concern related to freedom of expression and access to information, and propose recommendations to States, adding that a compilation of all joint statements issued by the special mechanisms is available online.

Commissioner Topsy-Sonoo stressed that “It is imperative that concerted effort is made to address these challenges in order to ensure the effective realization of freedom of expression and access to information in Africa,” but added that “Despite the various challenges which have impeded the effective realization of freedom of expression and access to information in Africa, the special mechanism has been able to achieve great strides in fulfillment of its mandate. This is in large part to the different stakeholders, at the local, national and international level, who have supported and contributed to the mechanism’s mandate, projects and initiatives, over the years.”

She expressed “sincere gratitude to the tireless defenders of freedom of expression and access to information, who have worked with the special mechanism” and acknowledged predecessors as Special Rapporteurs of the Commission on Freedom of Expression “for the important contributions they made to the promotion and protection of the rights enshrined in Article 9 of the African Charter”, citing former Commissioners Andrew Chigovera, Pansy Tlakula, Lawrence Mute and Jamesina King.

Commissioner Topsy-Sonoo said due credit should be given to them for the immense progress made by the mechanism during the past 20 years, adding that she hoped that the “anniversary will provide the opportunity to renew commitment to the promotion and protection of freedom of expression and access to information in Africa.”