AU Special Rapporteur Calls on African Countries with ATI Laws to Establish Independent Mechanisms to Ensure Effective Implementation

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Commissioner Jamesina Essie L. King
ACHPR Special Rapporteur on Freedom of Expression and Access to Information

The African Commission on Human and Peoples’ Rights’ (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information in Africa, Commissioner Jamesina Essie L. King, has called on African Union (AU) Members State with Access to Information (ATI) Laws to establish independent and impartial oversight mechanisms mandated to ensure promotion, monitoring and protection of the right of access to information pointing out that as with all rights, effective implementation of ATI Laws is key to their realization.

She made this call in her opening remarks during a webinar held to commemorate the International Day for Universal Access to Information (IDUAI) on September 28, 2021.

The Special Rapporteur noted that freedom of access to information and freedom of expression are inter-related adding, in the African Charter on Human and Peoples’ Rights, these rights are enshrined in Article 9(1) and (2), which provide that “every individual shall have the right to receive information;” and “shall have the right to express and disseminate his opinions within the law.”

The degree of implementation of the rights of freedom of expression and access to information, according to her, are indicators of citizen’s effective participation in the governance of a State.

She noted: “For democracy to succeed, it must be based on a human rights framework which includes the rights to free expression and information, which in turn facilitate others, such as the right to participate in the governance of one’s country, the rights to education and healthcare.”

Article 1 of the African Charter obliges States Parties to ‘adopt legislative, or other measures to give effect to the rights, duties and freedoms enshrined. In order to assist States fulfil this obligation in relation to the rights of freedom of expression and access to information, the Commission sought to elaborate on their scope and content, in the 2002 Declaration of Principles on Freedom of Expression in Africa, the Model Law on Access to Information, the Guidelines on Access to Information and Elections in Africa and most recently the Declaration of Principles on Freedom of Expression and Access to Information in Africa.

The Commissioner took the opportunity to give an overview of the soft law instrument on Article 9 of the African Charter on Human and Peoples’ Rights (ACHPR) which she pointed out was adopted by the Commission in 2019; that is the Declaration of Principles on Freedom of Expression and Access to Information in Africa.

Noting that the aforementioned 2002 Declaration included only one Principle, Principle IV on freedom of information, the revised Declaration, she said, expands the guidance to States on access to information and digital rights, while affirming the principles on freedom of expression.

She noted that there are currently, twenty-six (26) countries in Africa have enacted specific national access to information legislation. These are Angola; Botswana; Burkina Faso; Cote d’Ivoire; Ethiopia; The Gambia; Ghana; Kenya; Liberia; Malawi; Morocco; Mozambique; Niger; Nigeria; Rwanda; Seychelles; Sierra Leone; and South Africa.

The other countries are South Sudan; Sudan; Tanzania; Togo; Tunisia; Uganda; and Zimbabwe. She took the opportunity of the event to commend the Republic of The Gambia which she noted enacted a law on access to information in August 2021.

Panelists and participants at the webinar focused the discussions on the recently adopted Declaration of Principles on Freedom of Expression and Access to Information in Africa, as a way to raise awareness on its salient principles and to encourage the Commission’s stakeholders to utilize this useful document. Specifically, they sought to unpack and understand the various principles in the Declaration, in relation to freedom of expression, access to information, in addition to the promotion and protection of these rights in the digital age.

While thanking all the panelists and participants for the quality of their contributions to the webinar in her closing remarks, Commissioner King encouraged all participants to continue to advocate for the right of access to information, and the related right of freedom of expression in Africa.

The Special Rapporteur noted that one additional principle, that is Principle 43 which is in the final section of the Declaration, indicates key principles which are also note-worthy.

She cited Principle 43(1) which calls on States Parties to “adopt legislative, administrative, judicial and other measures to give effect to the Declaration,” in addition to stressing the State’s responsibility to “facilitate its dissemination.”

Principle 43(2), she noted, reminds States of the need to “review or adopt legislation on access to information” in view of the importance of such legislation in ensuring realization of this right. She added that reference is made to the Model Law on Access to Information, which can serve as a tool for States Parties to translate the obligations related to the right of access to information into detailed national legislation.

She added that Principle 43(3) calls on States to be guided by the Guidelines on Access to Information and Elections in Africa when adopting measures related to elections pointing out that these Guidelines were adopted by the Commission in November 2017 to develop a regional standard on access to information and elections, as a means of guaranteeing the credibility of elections and strengthening democratic governance in Africa.

Lastly, she cited Principle 43(4) which calls on States to provide detailed information in each Periodic Report, on the measures taken to facilitate compliance with the provisions of this Declaration. She stressed that this principle refers to the responsibility of States Parties, as stated in Article 62 of the African Charter, to submit Periodic Report submitted to the African Commission every two years, on the measures which have been taken to implement the African Charter at the national level. She pointed out that the Declaration can serve as a guide to States when they reporting on the measures taken to give effect to Article 9.

Commissioner King proposed that National Human Rights Institutions and civil society organizations should also utilize the Declaration to guide the information provided in their shadow reports, which serve as a useful source of information to the African Commission when reviewing the States Periodic Reports.

She reminded participants that all the soft law documents are available on the Commission’s website; specifically on the webpage of the special mechanism. She called on all stakeholders to take ownership of these instruments, in order to ensure promotion and protection of human rights in Africa.