The African Commission on Human and Peoples' Rights (ACHPR) has expressed concern over reports on violations of freedom of expression and access to information in several African countries, including Zimbabwe.
In her report to the 44th Session of the ACHPR in Abuja, Nigeria on November 13, advocate Pansy Tlakula, the ACHPR's Special Rapporteur on Freedom of Expression and Access to Information in Africa, singled out Zimbabwe, Sierra Leone, Eritrea, Nigeria, Ethiopia, Lesotho and Cameroon as the offending countries. "The Special Rapporteur has been informed that in the run-up to the June 27 presidential elections run-off (in Zimbabwe), numerous journalists and leading cast members of plays perceived as critical of the government were allegedly harassed, arrested and detained. I have also received reports that journalists have been convicted for offences such as intentionally publishing falsehoods contrary to the country's media law," she said.
"In this regard, I would like to remind member states that, unlike other international human rights instruments, the African Charter does not contain a derogation clause. Thus, regardless of circumstances such as conflict, civil unrest or any other form of emergency, States have a perpetual obligation to respect, promote, protect and fulfil the right to freedom of expression as provided under the African Charter and the Declaration on the Principles of Freedom of Expression which supplements it."
She noted that only a few countries had adopted legislation on freedom of information that conforms with regional and international human rights standards. As such, she urged member states to ensure that their laws on Freedom of Information conform with applicable regional and international human rights standards, particularly Principle 4 of the Declaration on the Principles of Freedom of Expression in Africa.
The Declaration states, among other provisions, that public bodies hold information not for themselves but as custodians of the public good and everyone has the right to access that information, subject only to clearly defined rules established by law. South Africa, Mozambique, Malawi and Madagascar are the only four countries in southern Africa whose constitutions expressly protect the right to freedom of information.
"There is need for continuous dialogue with States reminding them that adoption of effective freedom of information legislation remains a yardstick for determining transparency and accountability towards promotion of access to social and economic development in any society which lays claims to adherence to democratic ideals," she said.
She paid tribute to nongovernmental organisations that have worked "tirelessly" to promote the adoption of freedom of expression laws and through whose intervention draft legislations have been introduced in various member states. MISA-Zimbabwe has produced a model access to information law as a lobby and advocacy tool for the repeal of the draconian Access to Information and Protection of Privacy Act (AIPPA).
Commissioner Tlakula noted that the AIPPA, which only provides for access to information held by public bodies and for appeals to be lodged with the statutory Zimbabwe Media Commission (which is still to be constituted following the December 2008 Amendments), has been widely criticised for its broad exemption provisions. The Special Rapporteur drew parallels with the positive aspects of South Africa's Promotion of Access to Information Act whose implementation is overseen by the South African Human Rights Commission, an independent constitutional body.
The South African Act contains exemption provisions that conform with international human rights standards and is subject to the public interest test. Its major weakness though is that it provides for appeals against decisions of public and private bodies to be lodged with the courts which are largely inaccessible to individuals in terms of costs and inordinate delays.
Advocate Tlakula said all laws relating to criminal defamation wherever they exist should be repealed or amended in conformity with the provisions of the Declaration on the Principles of Freedom of Expression in Africa. Laws on defamation should respect the following standards:
- no one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances
- public figures shall be required to tolerate a greater degree of criticism
- sanctions shall never be so severe as to inhibit the right to freedom of expression
Applauding the courage and resolve of journalists, media practitioners and NGOs that have committed themselves to advancing the right to freedom of expression at great personal risk as well as those that have been killed in defence of that right, the Special Rapporteur said she planned to introduce the African Commission Human Rights Journalist/Media Practitioner of the Year Award. The winner of the award, which will honour journalists and media practitioners that have made outstanding contributions to the advancement of freedom of expression and access to information in Africa, will be announced at a ceremony during the 45th Session of the ACHPR in May 2009 as part of commemorations of World Press Freedom Day.
