Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.
Since the decolonization of African States began in the 1950’s, the subcontinent has endured a rather volatile political environment. In 1990 Freedom House recorded just three African countries with multiparty political systems, universal suffrage, regular fraud-free elections and secret ballots. Over the years, the region has seen a sluggish yet promising process of democratization, with 53 of 54 States having elected forms of government. However, political corruption that continues to plague the subcontinent has been a tool to secure or gain illegitimate power and silence the voice of the people.
In 2013 alone, 211 journalists were imprisoned. African countries are amongst the worst offenders in using criminal defamation laws to fine and imprison journalists. Freedom of the press and media acts as an important check on the government and the administrators. The duty of a free press is to raise its voice against any social ill or wrong. It is therefore the necessary pre-condition to the fulfillment of democratic ideologies.
Freedom of Speech and Expression
The African Commission on Human and Peoples’ Rights (the African Commission) was established by virtue of Article 30 of the African Charter on Human and Peoples’ Rights (the African Charter)with the specific mandate to promote human and peoples’ rights and ensure their protection in Africa.Under Article 9, the African Charter guarantees every individual the right to receive information and express and disseminate his/her opinions within the law.
The African Commission on Human and Peoples’ Rights, in the 32nd Ordinary Session, in Banjul, The Gambia adopted the Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa. It recognized that, Freedom of expression is a basic human right and –
“... a potent and indispensable instrument for the creation and maintenance of a democratic society and the consolidation of development.”
Nevertheless, the right to free expression and access to information remains under threat, with countless impingements due to restrictive laws and practices. With arbitrary laws still on statute books across Africa, legal guarantees for their enjoyment are weak, or worse, non-existent. Even today, exercising the right to free expression can be fraught with danger. The following gives a non-exhaustive list of prevalent perils: harassment, assaults and attacks, persecutions, prosecutions and civil suits, various bans, imprisonment, disappearancesand murders. Such dangers or threats thereof affect veteran journalists or media professionals as well as human rights defenders and ordinary citizens daily.
The weakness of Article 9
The African Charter contains ‘claw-back’ clauses, which may have the effect of curtailing a specific right in question due to ambiguity or shortfalls in drafting. A number of civil and political rights are limited by, inter alia, terms such as “except for reasons and conditions previously laid down by law”,“subject to law and order”, or “within the law”. These limitations have been severely criticized, given that they usually subject the guaranteed rights to domestic law, thereby weakening their content and scope.
In Civil Liberties Organization (In respect of the Nigerian Bar Association) v Nigeria, regarding freedom of association, the Commission held that –
“... in regulating the use of this right, the competent authorities should not enact provisions which should limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international human rights standards.”
The jurisprudence of the African Commission has stated that limitations are to be in accordance with states parties’ obligations under the Charter. Thus, the Commission has attempted to “neutralize the claw-back clauses” by relying on its duty to interpret the Charter in light of international human rights jurisprudence, as required by Articles 60 and 61.
Scope of Freedom of Expression and Right to Information
The African Commission ruled that –
“... freedom of expression is a basic human right, vital to an individual’s personal development and political consciousness, and to his participation in the conduct of public life in his country.”
In a subsequent case, the Commission held that –
“... in keeping with its important role of promoting democracy in the continent, the African Commission should also find that a speech that contributes to political debate must be protected.”
Moreover, Article 9 of the African Charter comprises the right to receive information and to express one’s opinion. Therefore, the intimidation and arrest or detention of journalists for articles published and questions asked deprived not only the journalists of their rights to freely express and disseminate their opinions, but also the public of their right to information.
The subsequent case of Liesbeth Zegveld and Mussie Ephrem v Eritrea reaffirmed the above principles, which were further discussed in the Declaration of Principles on Freedom of Expression. The Declaration lays down a more comprehensive framework to further strengthen freedom of expression and access to information in relation to Article 9 of the African Charter on Human and Peoples’ Rights.
Freedom of expression and information is stated in the Declaration to be a “fundamental and inalienable human right and an indispensable component of democracy”. Specific reference is made to this fundamental principle in The Law Office of Ghazi Suleiman v Sudan. It restates the basic principle of equal opportunity and non-discrimination in the exercise of the “right to freedom of expression and to access information”.No “arbitrary interference” is permitted in the enjoyment of freedom of expression. Any restriction would have three components: it should (i) be provided by the law; (ii) serve a legitimate interest; and (iii) be necessary in a democratic society.
Konate v. Burkina Faso
The African Court on Human and Peoples’ Rights has handed down a powerful judgment on press freedom by ruling that criminal defamation laws cannot include custodial sentences or sanctions that are disproportionate, such as excessive fines. The Court ordered Burkina Faso to change its criminal defamation laws and pay compensation to the applicant. The African Court unanimously held that Burkina Faso violated Article 9 of the African Charter, Article 19 of the ICCPR, and Article 66(2)(c) of the Revised ECOWAS Treaty. The Court found that although Burkinabe law served a perfectly legitimate objective, namely to protect the honour and reputation of public officials, the penalty of imprisonment constituted a disproportionate interference in the exercise of the freedom of expression by Konaté and journalists in general.
The judgment will have a major impact across the continent, where many journalists still face prison for defamation. In 2013, at least 200 journalists were imprisoned around the world under criminal defamation laws. By clearing one of the major impediments to effective journalism – the threat of prison for journalists who expose corruption or criticize the government – it paves the way for a freer and stronger media.
Though the judgment has received much praise for the decriminalization of arbitrary defamation laws, the failure of the Court to address the nature of such colonial and archaic laws itself, has been missed my many. The judgment rules in favor of Konate simply on the ground that, criminal penalties for defamation are unjust and cannot be prescribed by law. However, it does not address the issue of restrictions on press freedom and right to information that are ‘within the law’ yet arbitrary. As discussed above, the Right to Freedom and Expression under Article 9 loses much of its strength due to the phrase ‘within the law’ in the provision, thus it is imperative that the Court direct the member states to liberalize Libel and Sedition laws.
In recent years, there has been a gradual erosion of democratic standards in Africa. It is common for governments to carry out media blackouts and ban live broadcasts during elections, arrest and persecute journalists, and persecute anyone that criticizes the government with defamation.  Thus, even though the ideals of democracy are a political de rigueur in the 21st century, the situation of human rights in Africa provide with solid example of how even elected governments do not ensure protection of peoples rights. Further, with rampant poverty, war, and corruption the subcontinent is in the dire need of better governance. It is thereby necessary for the African Commission to take on the role of protector and enabler of human rights in the region, and facilitate the liberalization of domestic laws so as to encourage public debate, exchange of political ideas, free and fair elections and thus, better governance of the region.
 African [Banjul] Charter on Human and Peoples' Rights, adopted by the Assembly of Heads of State and Government (AHSG) of the Organisation of African Union (OAU) (now African Union - AU) meeting in Nairobi, Kenya on 26th June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). It entered into force on 21st October 1986. The AHSG elected the first members of the African Commission in July 1987.
 Article 30 of the African Charter. Today, all members of the African Union, except Morocco, are party to the African Charter.
 African Commission, Resolution on Freedom of Expression adopted at its 29th Ordinary Session in Tripoli, Libya, in May 2001, Preambular para.2
 In the wake of the African Union Summit in June 2006, authorities in The Gambia, host of the Summit and of the African Commission on Human and Peoples’ Rights, banned a Forum on Freedom of Expression meant to bring together journalists and members of civil society organisations, on the grounds that no prior official authorisation had been obtained.
 On 5 June 2008, the Court of Justice of the Economic Community of West African States (ECOWAS) gave a ruling ordering the release of Chief Ebrima Manneh, a Gambian journalist detained incommunicado since his arrest on 11 July 2006
 “Another murder in Somalia as HornAfrik director is killed”; available at http://www.cpj.org;
Term coined by Professor Rosalyn Higgins, quoted in Udombana (2000:45)
 Article 9 – Freedom of expression, African Charter on Humans and Peoples Rights
 101/93 Civil Liberties Organization (in respect of the Nigerian Bar Association) v Nigeria, 8th Annual Activity Report [in Compilation 1994–2001, IHRDA, Banjul 2002, pp.200– 202], para. 16.
 1 147/95 and 149/96 Sir Dawda K Jawara v The Gambia, 13th Annual Activity Report [in Compilation 1994–2001, IHRDA, Banjul 2002, pp. 108–121];
 Heyns (2002:143).
 145/95 Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda v Nigeria, 13th Annual Activity Report
 228/99 The Law Offices of Ghazi Suleiman v Sudan, 16th Annual Activity Report
 250/02 Liesbeth Zegveld and Mussie Ephrem v Eritrea, 17th Annual Activity Report
 Application No 004/2013 Lohé Issa Konaté v Burkina Faso (2015), African Court on Humans and Peoples’ Rights
 Article 9, African Charter on Rights of Humans and Peoples
 Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa, presented at the 44th Ordinary Session of the African Commission on Human and Peoples’ Rights, 10–24 November 2008, Abuja, Federal Republic of Nigeria