Name: Madete Sambazi Maureen ANR: 186797 Course: Master Thesis 1 FREEDOM OF SPEECH AND FREEDOM AFTER THE SPEECH A LEGAL ANALYSIS OF THE AFRICAN UNION AND THE COUNCIL OF EUROPE Student: Madete Maureen Sambazi ANR: 186797 Department: European and International Public Law, Faculty of Law, Tilburg University Date: January 2020
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“There is freedom of speech, but I cannot guarantee freedom after the speech” -Idi Amin Dada,
former president of the Republic of Uganda.
Over the past decade, there has been an increase in instances of disrespect of freedom of speech
and expression1 internationally.
In 2016, tensions ran high in Uganda during the run up to the presidential elections due to a state
ban on the use of social media platforms such as Facebook, Twitter, Instagram and WhatsApp.
The State further directed all media houses to avoid publishing material that portrayed a negative
side of the regime. The media houses faced possible sanctions such as a total shut down if they
failed to heed the government directives. Even before the elections in February, in January of the
same year, police raided a printing press in Kampala where the opposition party, Forum for
Democratic Change (FDC) was printing its election manifesto. The government also barred
private independent media houses like Nation Television (NTV) Uganda from broadcasting
campaign rallies of the ruling National Resistance Movement (NRM) party over what it deemed
poor coverage of the incumbent President Museveni’s campaign.2
The government was criticized for deploying “a wide range of tactics to stifle critical reporting,
from occasional physical violence to threats, harassment, bureaucratic interference and criminal
1 Freedom of ‘speech’ and/or ‘expression’ will be used interchangeably throughout this paper, but ultimately mean the same thing. 2 BBC News, ‘Uganda Election: Issues, Candidates and the Poll’, 10 February 2016, https://bbc.com/news/world-africa-35522675
charges”3. This is just one example of the various infringements on the exercise of freedom of
speech across Africa.
European countries, which had traditionally been considered beacons of protection of freedom of
expression, have not been spared the surge in the abuse and violation of the right. On 16th
October 2017, Maltese investigative journalist Caruana Galizia was killed in a car bombing near
her home. The bomb was placed under the driver’s seat of her car and remotely detonated. Due
to the several death threats that she had received for her work, she was under police protection up
until 2013 when the protection was withdrawn after the Labour Party that had been a subject of
many of her investigations, returned to power. At the time of her death, she was investigating the
alleged involvement of different Maltese public figures including the then Prime Minister and
members of his household, public servants and some prominent businessmen, with the Panama
companies that deal with off-shore accounts and invasion of taxes. It was speculated that her
murder was connected to her investigative work. Adrian Delia, a Maltese opposition leader
stated that “the Prime Minister and Ministers were at the very least fully aware of what was
going [on]…they are at the very least guilty of allowing a situation to precipitate to a stage where
a journalist was assassinated to shut her up for good.”4
In February 2018, two Slovakian journalists, Jan Kuciak and his fiancée Martina Kusnirova were
murdered for their alleged5 “…investigation into the presence of the infamous Italian criminal
3 Human Rights Watch, ‘A Media Minefield. Increased Threats to Freedom of Expression in Uganda’, May 2,2010, https://hrw.org/report/2010/05/02/media-minefield/increased-threats-freedom-expression-uganda 4 Sharon Braithwaite and Barbie Latza Nadeau, ‘Why Murdered Maltese Journalist Daphne Caruana Galizia is Back in the News.’ CNN, November 30, 2019, https://edition.cnn.com/2019/11/30/europe/daphne-caruana-galizia-qa-intl/index.html 5 From the news, it was suspected that their murders were linked to the investigations
group “Ndrangheto” in Slovakia and possible connections to the country’s political elite.”6
Although the factual reason for their deaths, at the time of writing, was yet to be uncovered,
these assassinations “highlighted the price that media professionals continued to pay for
investigating corruption and organized crime in 2018.”7
It is trite law that all human beings have the right to freedom of speech. In limited instances, the
right can be curtailed, particularly in instances of legally restricted speech. This paper proposes
to analyze how much weight the right carries when it comes to protection of persons, from
violations, after they have expressed an opinion that does not fall within the bounds of restricted
speech, but is merely considered offensive or undesirable. These violations can be occasioned by
third parties like private individuals or corporations and by the state and its organs. The paper
discusses whether the protection granted to the right to speak is not limited to only the point of
speech, but also during the post speech period. It will explore whether persons should be
protected as a matter of law, after they speak out.
Although the paper seeks to discuss all situations of persons who have exercised their freedom of
expression, it mainly explores situations of journalists, media personnel and political activists,
due to the fact that their situations are the most publicized and it is therefore limited in that
regard. In addition, the post speech period explored is a fairly new concept and therefore, there is
limited (if any) literature that directly discusses the protection of persons after the exercise of the
freedom of expression. That being said, the paper intends to uncover whether said protection
during the post speech period is actually catered for within the right to freedom of expression or
6 Ole Tangen Jr, ‘2 journalists were murdered-but their investigations live on’, DW Freedom, 7th April 2019. https://dw.com/en/2-journalists-were-murdered-but-their-investigations-live-on/a-48241808 7 Report by the Information Society Department, ‘Freedom of Expression in 2018. An assessment of the state of the freedom of expression in Council of Europe member states, based on findings of the Council of Europe monitoring mechanisms and bodies’, DGI (2019)3. At www.coe.int/freedomofexpression
the existence of a lacuna in the law that needs immediate remedy. Before delving into whether
freedom of speech grants protection during the post speech period, it is material to have a brief
introduction of how the right to freedom of speech and expression evolved into the sacred right
we know of today.
1.1 FREEDOM OF SPEECH
Freedom of speech is the right every individual has to disseminate his/her opinion without fear of
retribution.8 This expression can range from words, written or said, pictures, images or films, it
can either be symbolic speech, political speech or commercial speech9. It has always been an
important and salient human right deserving protection and the cornerstone to any democratic
society.
The origin of this freedom can be traced as far back as ancient Greece during the end of the fifth
century BC, with the Greek word ‘parrhesia’ literally meaning ‘free speech’. “Athenians, indeed,
boasted that in this respect they were a unique people…they had freedom of speech.”10 As early
as 1215, the British Magna Carta set in motion a tradition of civil rights which can be argued laid
the foundation for the British Bill of Rights which was passed in 1689. This Bill of Rights
introduced the freedom of speech, albeit only restricted to parliamentary debates. Additionally,
8 Frank La Rue, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’, (2013, 17 April), A/HRC/23/40 9 ‘Speech’ or ‘expression’ in this paper relates to any and all types of speech or expression. This is because delving into the different types of speech or expression and what they entail would go beyond the bounds of this paper. The important aspect is the fact that any and all types of speech or expression can be subject to violation, which is the underlying factor in this paper. 10 Max Radin, ‘Freedom of Speech in Ancient Athens’, The American Journal of Philology, Vol. 48, No.3 (1927). Published by: The Johns Hopkins University Press, Page 215
“before the American Revolution, the only mention of freedom of speech in the basic charter of
any colony referred to the rights of legislators during sessions of the legislature”.11
Over the years the right to free speech evolved to encompass a right of every person to not only
hold an opinion, but also articulate it whenever it was desired. It was codified internationally in
the Universal Declaration of Human Rights (UDHR) providing for everyone’s right to freedom
of opinion and expression without interference12. Owing to the non-binding nature of the UDHR
at the time, although now it has acquired the status of customary international law and is
therefore binding, the right was incorporated into international instruments that had a binding
nature to those who ratified them, specifically, the International Covenant on Civil and Political
Rights (ICCPR)13. It was additionally evident in regional instruments like the African Charter on
Human and Peoples Rights (ACHPR)14 stating that “every individual shall have the right to
express and disseminate [their] opinions within the law”15, the European Convention on Human
Rights (ECHR)16 that provides for “freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless of frontiers”17,
American Convention on Human Rights18 that affirms that everyone has the right of thought and
expression which included “freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any
11 David S.Bogen, ‘The Origins of Freedom of Speech and Press’, Maryland Law Review, Vol 43, No.3 (1983), Page 431 12 Universal Declaration of Human Rights, 1948, Article 19 13 1967, under Article 19 that guarantees everyone’s right to hold opinions without interference and the freedom of expression. 14 1986 15 Article 9(2) 16 As amended by Protocols Nos. 11 and 14, and supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16 17 Article 10(1) 18 Pact of San Jose, Costa Rica, 1969
information received in confidence, or for maintaining the authority and impartiality of the
judiciary.”24
The limitation of the right on account of protection of national security, public order, health and
morals is also catered for in Arab Charter on Human Rights under Article 32(2) as well as the
American Convention on Human Rights under Article 13(2). The ACHPR subsequently provides
that one can only express his/her opinions within the law25, meaning that one’s expression has to
fall within the legal parameters of accepted speech, for fear of repercussions. Such restrictions
“must be necessary for a legitimate purpose”26 and “must not be overboard,”27 thereby, they
should conform to the principles of proportionality and necessity. The law that provides a
restriction on freedom of expression must also be “accessible, unambiguous, drawn narrowly and
with precision so as to enable individuals to foresee whether a particular action is lawful.”28 The
ECtHR further stated that such law should be “public, accessible, predictable and foreseeable.”29
Certain categories of people such as journalists and politicians enjoy a larger freedom of
expression and protection than other individuals. This however comes with greater
responsibilities. Journalists are considered ‘watchdogs’ of a democratic society, reporting on
issues of public importance and “it is precisely this mission which explains and justifies the
increased level of protection accorded to the freedom of journalistic expression, which resembles
24 Article 10(2) 25 Article 9(2) 26General Comment No.34, ‘Article 19: Freedoms of Opinions and Expression’, Human Rights Committee, CCPR/C/GC/34, 12 September 2011, Paragraph 33 27Supra, note 26, paragraph 34 28The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Global Campaign for Free Expression, International Standards Series, Adopted 1st October 1995, Principle 1.1(a) 29 The Sunday Times V The United Kingdom, Application No. 6538/74, Judgment 26th April 1979, paragraph 49
at times a veritable privilege.”30 However, as they exercise their freedom of expression, they
have to avoid publishing material that would threaten the territorial integrity and national
security of a state.31 Politicians on the other hand represent and owe a duty to their constituents
to highlight their grievances and defend their interests and it is specifically this responsibility that
grants them a higher level of protection on their freedom of expression.32 This however opens
them up to more criticism from the public at large in relation to their duties and they must
exercise a larger degree of tolerance to the criticisms.33
The right to freedom of speech places both positive and negative obligations on a state, as far as
enjoyment and protection of the right is concerned. Positive obligations require “member states
to…take action”34 like the fact that “state parties should put in place effective measures to
protect against attacks aimed at silencing those exercising their right to freedom of expression,”35
while negative obligations “essentially require states not to interfere in the exercise of rights.”36
These obligations impose “not only a state duty to abstain from interfering with the exercise of
the right, but also to protect the right from infringement by third parties.”37
30 Flauss, Jean-Francois, ‘The European Court of Human Rights and the Freedom of Expression’, Indiana Law Journal: Vol.84, Issue 3, Article 3, 2009, http://www.repository.law.indiana.edu/ilj/vol84/iss3/3, paragraph 827 31 See Surek V Turkey (No.1), (Application No. 26682/95), Judgment 8th July 1999 32 See Castells V Spain, Application No. 11798/85, Judgment 23rd April 1992 33 ‘Declaration on Freedom of Political Debate in the Media’ Adopted by the Committee of Ministers on 12th February 2004, Council of Europe, paragraph IV. See also Lingens V Austria, (Application No. 9815/82), Judgment 8th July 1986 34 Alastair Mowbray, ‘Human Rights Law in Perspective: The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights’, Hart 2004, Page 2 35Supra, note 26, paragraph 23 36 Jean-Francois Akandji-Kombe, ‘Positive Obligations Under the European Convention on Human Rights: A Guide to the Implementation of the European Convention on Human Rights’, 2007, Human Rights Handbook No.7, Page 5 37 Dinah Shelton and Ariel Gould, ‘Positive and Negative Obligations. The Oxford Handbook of International Human Rights Law’, Edited by Dinah Shelton, 2013, Page 1
freedom of expression which is not stated therein42. “Equally, national authorities are not
required to interfere with the exercise of freedom of expression whenever one of the grounds
enumerated in paragraph 2 is at stake, as this would lead to a limitation of the content of that
right.”43
It should be pointed out that freedom of expression does not operate in isolation. It is linked to
various other rights such as the right to privacy, freedom of thought, conscience and religion,
right to assembly and association, to mention but a few, and this connection to other rights is
essentially why a person exercising freedom of expression possesses certain duties and
responsibilities towards other people’s rights.
This duty “was written into the convention not only to take account of the distinctive identity of
the freedom of speech, but also to prevent the irresponsible and dangerous use of democracy.”44
These duties are therefore in place to ensure that rights of others are protected once someone is
exercising their freedom of expression. However, the ECtHR has emphasized that any
restrictions imposed on freedom of expression should correspond to the objective being
achieved:
“freedom of expression constitutes one of the essential foundations of [a democratic society],
one of the basic conditions for its progress and for the development of every man. Subject to
paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are
favourably received or regarded as inoffensive or as a matter of indifference, but also to those
42 Dominika Bychawska-Siniarska, ‘Protecting the Right to Freedom of Expression Under the European Convention on Human Rights’, A Handbook for Legal Practitioners, Council of Europe, page 43 43 Supra, note 42, page 32 44 Flauss, Jean-Francois (2009), ‘The European Court of Human Rights and the Freedom of Expression’, Indiana Law Journal: Vol. 84: Issue 3, Article 3, http://www.repository.law.indiana.edu/ilj/vol84/iss3/3, page 810
that offend, shock or disturb the state or any sector of the population. Such are the demands of
that pluralism, tolerance and broadmindedness without which there is no “democratic society”.
This means, amongst other things, that every “formality”, “condition”, “restriction” or
“penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.”45
Article 10(2) therefore only provides for adopting measures of restrictions that are necessary in
the democratic society in order to achieve the aims sought, and not any blanket restriction that
hampers persons from exercising their freedom of expression.
The extent to which a state party has the power to restrict freedom of expression depends on a
number of factors. These factors as stated by the ECtHR include; whether the speech contributes
to a public interest debate, whether they are statements of fact or value judgments and the gravity
of the sanctions imposed by the state46. A public interest debate relates to one where the actions
or omissions of the government are scrutinized in the public domain and since these actions or
omissions affect everyone, they are usually of interest to the public at large.47 If it is established
that said expression does contribute to the public debate at the time, as long as it does not call for
an incitement to violence and is not regarded as hate speech, the court has usually found that
whatever restriction was imposed by the state party, was not necessary regardless of how harsh
or unpopular the opinion was.48 Whilst if the expression did not offer any contribution, the
restriction imposed is considered legitimate and necessary49. The difference between statements
45 Handyside V The United Kingdom, Application No. 5493/72, Judgment 7th December 1976, paragraph 49 46 Morice V France (Application no. 29369/10), Judgment 23rd April 2015 47 Surek V Turkey (No.1), (Application No. 26682/95), Judgment 8th July 1999 48 Supra, note 46 49 “The adjective ‘necessary’ within the meaning of article 10 (2) implies the existence of a pressing social need,” as stated in Otegi Mondragon V Spain (Application no. 2034/07), Judgment 15th March 2011, paragraph 49. Whether or not an opinion expressed contributes to the public interest debate at the time varies from case to case and depends on the prevailing circumstances in each state.
Article 9 (1) of the ACHPR provides that “Every individual shall have the right to receive
information”. Paragraph 2 adds that “Every individual shall have the right to express and
disseminate his opinions within the law”. The African Commission on Human and Peoples’
Rights (ACoHPR) also adopted a Declaration of the Principles of Freedom of expression which
reaffirms in its preamble “the fundamental importance of freedom of expression as an individual
human right, as a cornerstone of democracy and as a means of ensuring respect for all human
rights and freedoms.80” Freedom of speech under the ACHPR has a double connotation; it
includes not only the right of an individual to have an opinion and express it, but also the right of
others to receive that opinion. This was emphasized by the ACoHPR in Law Offices of Ghazi
Suleiman V Sudan81 that “when an individual’s freedom of expression is unlawfully restricted, it
is not only the right of that individual that is being violated, but also the right of all others to
receive information and ideas.”82
As stated earlier, the right carries with it duties and responsibilities, and as such can be limited.
Unlike in other international and regional human rights instruments, the grounds of limitation of
the right in the ACHPR are not explicitly provided for, however the phrase ‘within the law’
contained in Article 9(2) “provides a leeway to cautiously fit in legitimate and justifiable,
80 African Commission on Human and Peoples’ Rights, ‘Declaration of the Principles on Freedom of Expression in Africa’, 32nd Session, 2002, Banjul Gambia, Preamble. 81 Communication No. 228/99, 2003 82 Supra, note 81, paragraph 50. Also stated in Scalen and Holderness V Zimbabwe, African Commission on Human and Peoples’ Rights, Communication No. 297/05, April 3 2009, paragraph 108
individual, collective and national interests as grounds of limitation.”83 The phrase can be
deemed a claw-back clause especially where the term ‘law’ is applied to mean any domestic laws
regardless of the effect of said law. It would have the effect of allowing member states to violate
the rights of individuals on the basis of domestic laws. The ACoHPR however guides on the
interpretation in a Communication against Nigeria84 that the word ‘law’ contained in the Article
should be used in reference to international law and not domestic law. State parties are therefore
bound to only apply domestic laws insofar as they are consistent with international obligations.
It is also important to note “…that the only legitimate reasons for limitations of the rights and
freedoms in the African Charter are found in Article 27(2), that is, that the rights of the charter
shall be exercised with due regard to the rights of others, collective security, morality and
common interest.”85
Freedom of speech under the AU also imposes positive obligations on state parties to protect
persons from harm, and inaction from a state can attribute the harm caused, to the state, whether
committed by third parties or state organs. This was stated by the ACoHPR in Zimbabwe Human
Rights NGO Forum V Zimbabwe86 that:
“human rights standards do not contain merely limitations on a state’s authority or organs of
state. They also impose positive obligations on states to prevent and sanction private violations
of human rights. Indeed, human rights law imposes obligations on states to protect citizens or
83 Kenneth Good V Republic of Botswana, African Commission on Human and Peoples’ Rights, Communication No. 313/05, May 26th 2010, paragraph 188 84 Constitutional Rights Project V Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 102/93, October 31st 1998 85 Supra note 83, paragraph 189 86 Communication No. 245/2002, 2006
This case dealt with the murder of Norbert Zongo, an investigative journalist and his
companions, who were burnt to death in the car they were traveling in on 13th December 1998.
An Independent Commission of Enquiry, set up by the government of Burkina Faso to determine
the cause of death, issued a report connecting the deaths to their investigations into “various
political, economic and social scandals in Burkina Faso during that period, notably the
investigation of the death of David Ouedraogo, the chauffer of Francois Compaore, brother of
the president of Faso and adviser at the presidency of the Republic.”88
The case was brought by the families of Zongo and his colleagues, as well as the Burkinabe
Human and Peoples’ Rights Movement (an NGO). The Applicants alleged violations of the
ACHPR namely Article 1 (obligation of member states to give effect to the rights enshrined in
the Charter), 3 (equality of every individual before the law and equal protection of the law), 4
(right to life), 7 (right to have one’s cause heard by competent national organs) and 9 (right to
receive information, express and disseminate his or her opinions within the law). They also
alleged a violation of Article 19 ICCPR89 (freedom of expression). The Applicants argued that
Norbert Zongo had on several occasions complained in his articles of being threatened, of
88 ‘Report of Judgments, Advisory Opinions and Other Decisions of the African Court on Human and Peoples’ Rights’, African Court Law Report, Volume 1 (2006-2016), Pretoria University Law Press, 2019, Paragraph 4, Page 220 89 This is invoked in the AU through Article 60 of the ACHPRs that grants the ACoHPR the power to draw inspiration from, among others, international instruments adopted by the United Nations, when determining if a specific right exists and whether there has been a violation of said right. The ACoHPR has also stated that “international treaties which are not part of domestic laws and which may not be directly enforceable in the national courts nonetheless impose obligations on state parties.” (Legal Resources Foundation V Zambia, Communication No. 211/98, 2001, at paragraph 60)
attempts to abduct him and “the Respondent ought to have protected him by carrying out an
effective investigation of the acts of violence about which he was complaining.”90
Issues.
The issues before the court was whether Burkina Faso had a positive obligation to protect the
deceased journalists and whether the inaction by the state would amount to an interference of the
journalists’ freedom of expression protected in the ACHPR.
Decision of the court.
In determination of the case, four judges opined that “even though the Respondent state’s failure
to identify and apprehend Norbert Zongo’s assassins could potentially cause fear and anxiety in
media circles, in the instant case…the Applicants have not shown proof that the Burkinabe
media had not been able to exercise freedom of expression.”91 Therefore:
“the Respondent state cannot be accused of directly violating the freedom of expression of
journalists as guaranteed under Article 9 of the Charter…merely because it had not acted with
diligence and efficiency in identifying and bringing to trial the assassins of Norbert Zongo.”92
However, the majority of five dissenting judges93 found a violation by the Respondent state of
Article 9(2) of the Charter for its “failure to identify and send for trial the assassins of Norbert
Zongo,” since it “provoked fear and anxiety within the media circles” and thus “violated the right
90 Supra note 88, paragraph 175, page 250 91 Supra note 88, paragraph 186, page 252 92 Supra note 88, paragraph 187, page 252 93 Dissenting opinions of Judges in AU are important because they provide and improve on the African jurisprudence.
to freedom of expression of journalists.”94 They were also “of the view that when it comes to
facts of a psychological nature, which are generally difficult to prove, the court did not have to
insist on getting concise evidence.”95 They were in favor:
“especially in the area of the protection of human rights, of an adjustment of the standard of
proof relating to the establishment of the violation of certain rights guaranteed under the Charter
or any other applicable legal instruments, and in particular, regarding evidence of the possible
intimidating effect of behavior by a Respondent State which would be contrary to the
international obligations.”96
Importance of the case
This ruling is important for a number of reasons; for one, the dissenting judges improved on the
African jurisprudence and recognized that member states have a positive obligation to protect
individuals from harm after expressing an opinion and a responsibility to investigate and
prosecute those involved in inflicting the harm. Secondly, they extended this obligation to the
‘post speech period’ when an individual has already exercised the freedom of expression and
lowered the standard of proof in relation to providing evidence of an intimidating effect. Thirdly,
this judgment was the first in the court where reparations for victims of violations of their human
rights, was awarded. The court awarded the reparations on the basis that Burkina Faso did not act
with due diligence to prosecute those involved in the murders of the journalists.97
94 Supra note 88, Separate Opinion/Joint Declaration: Niyungeko, Ouguergouz, Guisse and Aba, paragraph 2, Page 256 95 Supra note 94 96 Supra note 94, paragraph 4, page 256 97 See, The Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema alias Abiasse, Ernest Zongo and Blaise Iboundo and the Burkinabe Movement on Human and Peoples’ Rights V Burkina Faso, No. 013/2011, Judgment on Reparations, African Court on Human and Peoples’ Rights (June 5th, 2015)
and indispensable for the free development of the human person and to create a democratic
society.”101 Although the court does not explicitly touch on protection of persons during the post
speech period, they implied that states have a negative obligation during the post speech period,
especially when it comes to political speech, stating “…some forms of expression such as
political speech, in particular, when they are directed towards the government and government
officials, or are spoken by persons of special status, such as public figures, deserve a higher
degree of tolerance than others.”102
Importance of the case.
The case is an example of how far some states would go to silence persons exercising an opinion
they consider unpopular. It also demonstrates that certain categories of people especially public
figures are granted a higher level of protection when exercising their right to freedom of
expression and states should refrain from carrying out acts in an effort to silence them, after such
individuals have spoken out. Although the decision of the court is a major achievement for the
extent of the protection of freedom of expression, it led the Republic of Rwanda to withdraw its
declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’
Rights, which allows individuals and Non-Government Organizations to file individual
complaints to the ACtHPR.103 Therefore, individuals in Rwanda can no longer take an individual
complaint to the ACtHPR, which is a major setback for protection of their rights under the
ACHPR.
101 Paragraph 132, pages 32-33 102 Paragraph 142, page 36 103 “Rwanda Withdraws Access to African Court for Individuals and NGOs”, International Justice Resource Center, March 14, 2016, https://ijrcenter.org/2016/03/14/rwanda-withdraws-access-to-african-court-for-individuals-and-ngos/
Article 9(2) and the ECHR in Article 10. It is connected to various other rights and therefore an
interference with freedom of expression can also lead to an interference of other rights, like the
right to life. The right is not absolute and in limited circumstances, is subject to restrictions.
Considering the importance of freedom of expression to the enjoyment of other rights, it has
been emphasized in both the CoE and AU that any restrictions imposed on it should “be
exceptional, subject to narrow conditions and strict oversight.”104
As has been discussed above, freedom of expression places positive obligations on states to
provide an environment where persons can enjoy the full exercise of rights, by protecting
individuals who are subject to harm that is attributed to a previous expression, at the same time,
ensuring that persons involved in inflicting such harm, are prosecuted and convicted. It also
obliges states to refrain from performing acts that would jeopardize the free enjoyment of the
individuals’ freedom of expression. These obligations exist prior, during and in certain
circumstances where a state has knowledge of an attack on an individual, exist after a person has
exercised their freedom of expression, regarded in this paper, as the post speech period.
104 “Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression”, United Nations General Assembly, A/74/486, 9th October 2019, page 5, paragraph 6