freedom of speech and freedom after the speech

Name: Madete Sambazi Maureen ANR: 186797 Course: Master Thesis

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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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CONTENTS

ABBREVIATIONS……………………………………………………………………………3

CHAPTER 1: INTRODUCTION…………………………………………………………….4

1.1 FREEDOM OF SPEECH…………………………………………………………………..7

1.2 POST SPEECH PERIOD………………………………………………………………….12

1.3 RESEARCH QUESTION AND METHODOLOGY………………………………………13

CHAPTER 2: COUNCIL OF EUROPE LEGAL FRAMEWORK……………………….16

2.1 INTRODUCTION………………………………………………………………………….16

2.2 EUROPEAN COURT OF HUMAN RIGHTS CASES……………………………………21

2.3 CONCLUSION…………………………………………………………………………….30

CHAPTER 3: AFRICAN UNION LEGAL FRAMEWORK………………………………32

3.1 INTRODUCTION …………………………………………………………………………32

3.2 AFRICAN COURT/COMMISSION ON HUMAN RIGHTS CASES……………………34

3.3 CONCLUSION ……………………………………………………………………………40

CHAPTER 4: ANALYSIS OF CASES AND CONCLUSION……………………………..42

4.1 ANALYSIS OF CASES……………………………………………………………………42

4.2 CONCLUSION……………………………………………………………………………..42

BIBLIOGRAPHY……………………………………………………………………………..44


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ABBREVIATIONS

NAME DESCRIPTION

ACHPR African Charter on Human and Peoples’ Rights

ECHR European Convention on Human Rights and Fundamental Freedoms

ACtHPR African Court of Human and Peoples’ Rights

ACoHPR African Commission of Human and Peoples’ Rights

ECtHR European Court of Human Rights

UDHR Universal Declaration of Human Rights

ICCPR International Covenant on Civil and Political Rights

AU African Union

CoE Council of Europe

FDC Forum for Democratic Change

NTV Nation Television

NRM National Resistance Movement

ASEAN Association of Southeast Asian Nations


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CHAPTER 1: INTRODUCTION

“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


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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

https://edition.cnn.com/2019/11/30/europe/daphne-caruana-galizia-qa-intl/index.html



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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


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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


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“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


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other medium of one’s choice.”19 The right was also protected under the Arab Charter on Human

Rights which guarantees “the right to information and to freedom of opinion and expression, as

well as the right to seek, receive and impart information and ideas through any medium,

regardless of geographical boundaries”20 and the Association of Southeast Asian Nations

(ASEAN) Human Rights Declaration stating that “every person has the right to freedom of

opinion and expression, including freedom to hold opinions without interference and to seek,

receive and impart information, whether orally, in writing or through any other medium of that

person’s choice.”21 This freedom of expression applies to all forms of ideas and information,

either regarded as offensive or complimentary, as the material aspect of a democratic society is

the ability to tolerate all kinds of expression, whether one agrees with it or not.22

Freedom of speech and expression carries with it duties and responsibilities and as such, is not an

absolute right and can be subject to restrictions. Just like in ancient Greece where “…certain

words were by law declared to be unsayable…,”23 there are limitations on what an individual is

legally permitted to say. This is apparent in the ECHR holding that this freedom:

“…may be subject to such formalities, conditions, restrictions or penalties as are prescribed by

law and are necessary in a democratic society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder or crime, for the protection of health or

morals, for the protection of the reputation or rights of others, for preventing the disclosure of

19 Article 13(1) 20 2004, Article 32(1) 21 2012, Article 23 22 Handyside V United Kingdom, [1976] EHRC 5 (7 December 1976), paragraph 49 23Supra, note 10, page 223


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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


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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

http://www.repository.law.indiana.edu/ilj/vol84/iss3/3


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1.2 POST SPEECH PERIOD

The ‘post speech period’ at the time of writing lacks a precise definition, nevertheless it can be

regarded as that period of time after a person has expressed an opinion. The time period after the

expression can be minutes, hours, days, months or even years. It is desirable that the length of

time following the expression is relatively short, as it can be argued that a longer period of time

would bring about difficulties in proving causation, as opposed to a shorter period of time.

However, just because it is difficult, does not mean it is impossible. If it can be proved that a

specific violation, when committed, is attributable to a previous expression, the length of time

between that expression and the violation would become immaterial. The violation in this respect

can range from assassinations to closing down of newspapers and sacking persons from their

jobs after exercising their freedom of expression.

Whether or not the post speech period has a beginning and an end is yet to be assessed from the

court judgments of the ECtHR and ACtHPR. It is contended that positive and negative

obligations exist prior and during expression, therefore, the right offers protection to an

individual before and when an expression is made. There however, appears to be no clear

position on whether protection of individuals will/should continue after they have exercised this

right.

It is important to protect persons after speech because the right to freedom of expression contains

both a personal and social element. Penalizing persons for expressing an opinion that is legally

acceptable has a chilling effect, not only on the individual, but on the public at large. People will

tend to place muzzles on themselves and avoid participating in social dialogue that is beneficial


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to the democratic society, for fear of repercussions, leading states back to the dictatorial and

authoritarian regimes which the ancestors fought very hard to get rid of.

1.3 RESEARCH QUESTION AND METHODOLOGY

Freedom of speech is and has always been a fundamental human right deserving protection. It

allows individuals to participate in social dialogue that is beneficial to their wellbeing. The

importance of this right to a democratic society is essentially why any restrictions placed on it

should observe the principles of necessity and proportionality “since there is otherwise danger

that freedom of expression would be undermined.”38 However, this freedom in its current state

does not always seem to factor in the effects after it has been exercised. It is becoming

widespread for states to not only sit back while an individual is being attacked by third parties,

including state organs, for expressing an opinion, but also muffle this right on several pretexts.

The main research question discussed in this paper is therefore:

‘Whether, and/or to what extent does the right to freedom of speech and expression extend

protection to an individual during the post speech period?’

With states being the custodians of rights of their nationals, it can be argued that they possess a

positive obligation, as a matter of law, to protect a person from harm, by other persons and

entities and even state agents, after they have spoken out, as well as a negative obligation to

38 Supra, note 8, paragraph 27, page 8


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refrain from going after persons that have expressed an unwanted opinion in their view,

especially when said opinion is targeting their governance.

To answer the main research question, an investigation into the legal frameworks of the Council

of Europe (CoE) and African Union (AU) is necessary. The reason for choosing these two legal

systems is because the CoE and AU bear similar traits insofar as an organized and well-

established framework for the disposal of human rights related issues is concerned. The

similarities in the establishment of the ACHPR39 and ECHR, alongside the court systems makes

it easier to analyze the two systems. That is not to say that the other continents possess inferior

human rights protection mechanisms, however, the peculiar nature of the Americas, Asia and

Arab systems is the complexity in acquiring information and the fact that there appears to not be

a clear legal system which can be relied on for constituency.

The African and European systems, thou similar in set-up, are socio-politically at odd and create

for a good study on how they interpret the right to freedom of expression. The legal framework

will mainly focus on court cases that have a ‘post speech element’ to elucidate how the right is

actually resolved by the courts in the day to day. The ECHR, ACHPR as well as other legal

instruments like guidelines, working papers, shall also be analyzed to the extent that they relate

to the subject matter. This is undertaken to shed light on the existing legal regime when it comes

to protection of freedom of expression during the post speech period.

The first sub-question is:

39 The drafters of the ACHPRs got inspiration from the ECHR and tailor made the rights to fit into the African perspective.


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‘Whether and to what extent does the ECHR protect an individual after he/she has

exercised freedom of expression?’

The paper explores this question in Chapter 2 by examining the legal framework of the CoE. The

analysis of this legal framework is limited to an interpretation of the right to freedom of

expression in the ECHR. This is because the ECHR is the main human rights instrument in the

CoE. Cases from the ECtHR that relate to the post speech period shall be analyzed to get a better

understanding of whether freedom of expression affords protection during said period.

The second sub-question is:

‘Whether and to what extent does the ACHPRs protect an individual after he/she has

exercised freedom of expression?’

This question will be discussed in chapter 3, by looking at the legal framework of the AU on

freedom of expression. This will also be limited to the ACHPRs since it is the main human rights

instrument in the AU, as well as an analysis of cases from both the ACtHPRs and ACoHPRs to

have an in-depth look on how far the freedom of expression stretches, in relation to protection

during the post speech period, in the African context.

The third sub-question is:

‘What is the way forward for the protection of individuals after expression?’

This is discussed in chapter 4 with an overview of whether or not freedom of expression offers

protection to persons in the post speech period as analyzed in chapters 2 and 3.

Recommendations on changes (if any) as well as a conclusion, with an overview of what has

been discussed, shall subsequently be given.


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CHAPTER 2: COUNCIL OF EUROPE LEGAL FRAMEWORK

2.1 INTRODUCTION

The ECHR protects the right to freedom of expression under Article 10. Paragraph 1 states that,

“Everyone has the right to freedom of expression. This right shall include freedom to hold

opinions and to receive and impart information and ideas without interference by public

authority and regardless of frontiers. This article shall not prevent states from requiring the

licensing of broadcasting, television or cinema enterprises.”40 Article 10(1) therefore provides

for the basic principle of freedom of expression, that it is a right every individual has to express

themselves in whatever form.

Paragraph 2 provides for the legitimate restrictions on the right, that:

“the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject

to such formalities, conditions, restrictions or penalties as are prescribed by law and are

necessary in a democratic society, in the interests of national security, territorial integrity or

public safety, for the prevention of disorder or crime, for the protection of health or morals, for

the protection of the reputation or rights of others, for preventing the disclosure of information

received in confidence, or for maintaining the authority and impartiality of the judiciary.”41

This paragraph caters for the legal situations when the right can be restricted, which restrictions

should be ‘prescribed by law’ and ‘necessary in a democratic society’. The list enumerated in

paragraph 2 is exhaustive and state authorities cannot lawfully rely on another ground to limit

40 Article 10(1) 41 Article 10(2)


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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



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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.


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of fact and value judgments, on the other hand, is that the former can be proved, while the latter

is not capable of being proved and asking a person to prove a value judgment actually infringes

freedom of expression.50

“The choice of whether a statement constitutes a declaration of fact or a value judgment is a

deciding factor in determining the level of protection afforded to comments that have been

expressed- a value judgment will benefit from wide protection, almost absolute, as long as the

opinion put forward is not devoid of any factual basis and was made in good faith.”51

As regards the gravity of the sanctions, the ECtHR has stipulated that governments should

refrain from imposing criminal sanctions, especially where there are other means available to

remedy the harm that are not as severe as criminal penalties, however, this does not take away

their duty to protect public order by imposing criminal penalties, as long as they are

proportionate to the expression made.52

Article 10 guarantees, not only everyone’s right to freedom of expression, but also the right to

have an opinion and to receive and pass on information in any way the person desires, therefore,

it protects both the substance and form in which the expression is made.53 It also protects

different types of expressions, ranging from verbal expressions, artistic drawings, political

expressions, commercial expressions, cultural, satirical expressions and even silence.54 The right

to freedom of expression also “includes the negative freedom of expression-the right not to

50 Otegi Mondragon V Spain (Application no. 2034/07), Judgment 15th March 2011, paragraph 53 51 Supra, note 44, page 817 52 Supra, note 40, paragraph 61 53 Supra, note 42, page 18. This principle was also expressed by the court in Oberschlick V Austria, 23rd May 1991 54 Supra, note 46


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speak.”55 This was upheld by the European Commission on Human Rights in K.V.Austria56

where it found a violation of Article 10 when the state denied the applicant his right to remain

silent, in an effort to avoid incriminating himself, in a case brought against him for the illegal

purchase of heroin.

In effecting the provisions of Article 10, state parties are granted a wide margin of appreciation

(or margin of state discretion) by the court, because domestic authorities are presumed to be best

suited, compared to the ECtHR, to ensure that the rights are enjoyed in accordance with the

domestic aspirations of the population being governed. “The margin is given both to the

domestic legislator (prescribed by law) and to the bodies, judicial amongst others, that are called

upon to interpret and apply the laws in force.”57 However, this margin of appreciation should not

be misused by state parties, since the court has the final say on whether or not a restriction

imposed on freedom of expression is in line with the provisions of Article 1058, therefore, “the

domestic margin of appreciation thus goes hand in hand with a European supervision.”59

Freedom of expression is therefore largely protected under the ECHR, from expression that is

considered offensive, to that which is well received. The protection is extended to any and all

types of expression, communicated in whatever form, as long as it does not fall within the

parameters of legally restricted speech like hate speech. The protection of the right is granted to

state parties and the ECtHR steps in only to examine whether a particular state party has violated

its obligations under the ECHR.

55 Supra, note 42, page 18 56 13th October 1992 (report of the Commission). Also stated in K.V.Austria 1993 before the ECtHR, paragraph 11(b) 57 Supra, note 45 58 Supra, note 45 59 Supra, note 45


21

2.2 EUROPEAN COURT OF HUMAN RIGHTS CASES

The ECtHR has handled numerous cases concerning freedom of expression under Article 10 of

the ECHR. Many of the cases concern the validity of defamation laws such as Lingens V

Austria60, The Sunday Times V The United Kingdom61; respect for other’s reputations such as

Morice V France62, Axel Springer AG V Germany63, Castells V Spain64; and the legality of the

inaction of states in the face of attacks against persons after they have exercised freedom of

expression such as Ozgur Gundem V Turkey65 and Dink V Turkey66. To avoid going beyond the

bounds of the topic, the paper analyzes those cases that contain a post speech element. Regarding

the ‘post speech period’, although the court does not explicitly mention the phrase, there are

some noteworthy cases which are discussed below, where the court touched on the existence of

positive and negative obligations of contracting states, in terms of both providing protection to

persons from attacks ‘after’ they have spoken out, as well as refraining from performing acts that

in essence interfere with a persons’ freedom of expression.

CASE STUDY 1: OZGUR GUNDEM V TURKEY (APPLICATION NO. 23144/93),

JUDGMENT 16TH MARCH 2000

Brief Facts.

60 Application No. 9815/82, Judgment 8th July 1986 61 Application No. 6538/74, Judgment 26th April 1979 62 Application No. 29369/10, Judgment 23rd April 2015 63 Application No. 39954/08, Judgment 7th February 2012 64 Application No. 11798/85, Judgment 23rd April 1992 65 Application No. 23144/93, Judgment 10th March 2000 66 Judgment 14th September 2010, [Section 11], Case-law No. 133


22

The Applicant, Ozgur Gundem, was a daily newspaper established in Istanbul, Turkey with a

national and international circulation. The newspaper was popular for printing articles accusing

the Turkish authorities of suppressing the citizen’s freedom of expression. It brought an

application to the European Commission of Human Rights (the Commission), alleging, among

others, a violation of Article 10 due to targeted attacks (including bomb attacks) and killings of

journalists and other persons involved with the newspaper between 1992 to 1993. The

Commission, after unanimously finding a violation of Article 10, forwarded the application to

the ECtHR. The Applicant alleged before the court, that the killings and attacks on its

employees, which led to the eventual closure of the newspaper in 1994, were attributable to the

Turkish authorities either directly or indirectly. They based these allegations on the fact that

numerous petitions and letters were sent to the government authorities, namely the Governor of

the State of Emergency Region, Prime Minister, Deputy Prime Minister and the Minister of

Interior; addressing the attacks and requesting protection and investigations to be opened. A vast

number of the letters went unanswered. Police protection was only offered to the employees on

two occasions; one in 1993 to escort the distribution of newspapers and the other in 1994 after a

bomb explosion on the premises of the newspaper. The police had also instituted a search and

arrest operation on the premises of the newspaper in 1993 alleging that the Applicant was taking

part in terrorist activities with the PKK ‘terrorist organization’, which led to the arrest and

detention of all employees, including cooks and closure of the newspaper. Various prosecutions

were also brought against certain employees of the newspaper that resulted in convictions and

sentences ranging from prison sentences, fines, orders for closure of the newspaper for a period

of three weeks to a month as well as the confiscation of the issues of the newspaper.

Issues


23

The ECtHR was tasked with finding whether the acts of the Turkish authorities, regarding the

search of the newspaper premises and arrests of employees of Ozgur Gundem, were in line with

the provisions of Article 10 of the ECHR, as well as whether the state of Turkey had a positive

obligation to protect those associated with the newspaper, from the attacks against them.

Court Decision

In resolving the matter, the court stressed the existence of positive obligations on states to ensure

that citizens enjoy the rights provided for in the ECHR, to the fullest, by providing an

environment where such rights can be enjoyed, stating that:

“genuine effective exercise of this freedom does not depend merely on the State’s duty not to

interfere, but may require positive measures of protection, even in the sphere of relations

between individuals.”67

However they added that, “the scope of this obligation will inevitably vary, having regard to the

diversity of situations obtaining in contracting states, the difficulties involved in policing modern

societies and the choice which must be made in terms of priorities and resources. Nor must such

an obligation be interpreted in such a way as to impose an impossible or disproportionate burden

on the authorities.”68

The court asserted that in this particular case though, the authorities had knowledge of the

numerous attacks against the employees of Ozgur Gundem and only acted in two specific

situations, which was considered insufficient in relation to the severity of the attacks. Also, the

government’s allegation that the newspaper was part of a terrorist organization, even if

67 Paragraph 43 68 Supra, note 67


24

considered to be true, was regarded as no justification for failing to protect and investigate the

attacks on the employees of the newspaper. In finding a violation of freedom of expression, the

court concluded that:

“the respondent state has failed to take adequate protective and investigative measures to protect

Ozgur Gundem’s exercise of its freedom of expression and that it has imposed measures on the

newspaper, through the search and arrest operation of 10th December 1993 and through

numerous prosecutions and convictions in respect of issues of the newspaper, which were

disproportionate and unjustified in the pursuit of any legitimate aim. As a result of these

cumulative factors, the newspaper ceased publication. Accordingly, there has been a breach of

Article 10 of the Convention.”69

Importance of the case

This case is important for a number of reasons; first, the court stresses the existence of positive

obligations of states during the post speech period, to protect persons from harm that is attributed

to their exercise of freedom of expression, as well as a negative obligation to refrain from

adopting measures that in essence hamper an individual’s further exercise of freedom of

expression. Secondly, the court notes that the positive obligations last for the time period that the

attacks persist and a few instances where the state steps up is not sufficient protection, as

opposed to the numerous other times when the persons are being attacked. Thirdly, these positive

obligations however, only come into play when a state has sufficient knowledge of said attacks

and the responsibility goes hand in hand with the prevailing circumstances in a specific country.

That being said, the court was silent on what would amount to sufficient ‘awareness’ or

69Paragraph 71


25

‘knowledge’ of the attacks by the state authorities, leaving the door open to various

interpretations and justifications.

CASE STUDY 2: DINK V TURKEY-2668/07, 6102/08, 30079/08 ET AL, JUDGMENT 14TH

SEPTEMBER 2010 [SECTION 11], CASE-LAW NO. 133

Brief facts.

The Applicants were a deceased journalist and five of his relatives. The deceased journalist was a

Turkish national of Armenian extraction and editor in chief of a Turkish-Armenian newspaper.

He wrote a number of articles in 2003 to 2004 expressing his views and opinions “on the identity

of Turkish citizens of Armenian extraction”70. He wrote “that Armenians’ obsession with having

their status as victims of genocide recognized had become their raison d’etre. That this need on

their part was treated with indifference by Turkish people and that, as a result, the traumas

suffered by Armenians remained a live issue.”71 This publication, among others that he wrote,

sparked demonstrations from extreme Turkish nationalists who also wrote threatening letters to

the journalist and lodged a criminal complaint against him. The journalist was found guilty by a

criminal court in 2005 and the Court of Cassation in 2006, for defaming the “Turkish identity”

and sentenced to a suspended prison sentence. He was later assassinated, which led the criminal

court where the case was remitted to in 2007, to discontinue the proceedings due to his death.

Criminal proceedings were instituted against persons alleged to have taken part in the

assassination, but these were never settled and investigations on whether the police had prior

70Paragraph 1 71 Supra, note 70


26

knowledge of the assassination, were subsequently dropped. This led the deceased journalists’

relatives to approach the ECtHR to resolve the issues.

Issues

The issues for determination by the ECtHR where whether the criminal proceedings instituted by

the Turkish courts and the failure of the Turkish authorities to identify and arrest those connected

to the assassination of the journalist, amounted to an interference of both his freedom of

expression under Article 10 and right to life under Article 2 of the ECHR.

Court Decision

In determination of the case, the court was of the view that the authorities had prior knowledge

of the assassination, since it was proven that two police departments and a gendarmerie

department had information “of the likelihood of an assassination attempt and even of the

identity of the alleged instigators”72. This knowledge, the court held, was sufficient to show that

the threat was “real and imminent”73, and because of the inaction of the Turkish authorities, the

state was found in violation of Article 2 of the ECHR, which provides for the protection of

everyone’s right to life.

In relation to freedom of expression, the court retaliated that states have “positive obligations in

relation to freedom of expression: they must not just refrain from any interference but must

sometimes take protective measures even in the sphere of the relations of individuals between

themselves.”74 The interference by the state authorities, in particular, the criminal proceedings on

72 Paragraph 2 73 Supra, note 72 74 Paragraph 5


27

the journalist were held to be unnecessary and illegitimate because the court observed that the

journalist was merely expressing his opinions, which were not considered insulting or offensive

and generally did not encourage anyone to resort to violence. He was also writing about matters

that were of public interest at the time. Therefore, the court established that the finding of guilt

on the journalist, by the Turkish courts, “taken on its own or coupled with the lack of measures

to protect the journalist against attacks by national extremists, had amounted to interference with

the exercise of his right to freedom of expression”75. They added that state parties are “required

to create a favourable environment for participation in public debate by all the persons

concerned, enabling them to express their opinions and ideas without fear. In view of the

authorities’ failure to protect the journalist against the attack by the members of an extreme

nationalist group and his conviction in the absence of a pressing social need, the respondent state

had not complied with its positive obligation with regard to the journalist’s freedom of

expression,”76 and a violation of Article 10 was established.


This case is instrumental in showing the connection between Article 2 and Article 10 of the

ECHR, that the death of a person, once such death is attributed to their exercise of freedom of

expression and the failure of the state to avoid the attack when it was reasonably foreseeable, as

well as the failure to bring to book those who carried out the attack can amount to a violation of

not only their right to life, but also their freedom of expression.

75 Paragraph 3 76 Supra, note 74


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CASE STUDY 3: GUJA V THE REPUBLIC OF MOLDOVA (NO.2), APPLICATION NO.

1085/10, JUDGMENT 27TH FEBRUARY 2018

Brief facts

The Applicant is a journalist who was employed as the head of the press department at the

Prosecutor General’s office. In January 2003, in an alleged effort to uncover corruption within

the government, he sent out two letters to a newspaper which exposed undue pressure on the

Prosecutor, from a politician, concerning the politicians’ dissatisfaction of criminal prosecutions

of a number of police officers who were alleged to have ill-treated and unlawfully detained

suspects. Due to this act by the Applicant, he was dismissed from work by the Prosecutor

General for allegedly violating his duty of confidentiality. The Applicant lodged an application

with the ECtHR in March 2004 and in February 2008, the Grand Chamber found the dismissal to

be an infringement on his freedom of expression under Article 10. The court ordered Moldova to

repatriate the Applicant for costs and reinstate him to his former job.

After an order for reinstatement was issued by the Moldovan Supreme Court of Justice, the

Prosecutor General reinstated the Applicant. However, on the same date of his reinstatement, 5th

June 2008, the Prosecutor General applied to the head of trade unions in Moldova, as was

required by law, for permission to dismiss the Applicant as provided under Section 14(8) of the

Public Service Act. Section 14(8) permitted the termination of employment of among others,

press attaches, from public authorities by the head of those authorities, once a new head was

appointed. The head of trade unions granted the permission of dismissal. The Applicant was then

dismissed ten days after he was reinstated and during the ten days of his re-employment, he was

not granted an access badge into the work building, or given an office or any tasks to perform.


29

The Applicant appealed to the Supreme Court of Justice on points of law, alleging that Moldova

had failed to execute the ECtHR judgment of February 2008 due to his second dismissal. The

Supreme Court of Justice dismissed the appeal, leading him to re-approach the ECtHR to

determine the matter basing on the new evidence that had arisen.

Issues

The issues before the court were whether the Applicant’s second dismissal also amounted to an

interference with his freedom of expression as his first dismissal and whether the treatment he

received after reinstatement was as a result of his whistle blowing in 2003.

Court decision

In determination of the case, the court took into account the prevailing circumstances around the

second dismissal. First and foremost, the court cautioned the fact that the Prosecutor General

requested for permission from the head of trade unions to dismiss the Applicant on the same day

of his reinstatement, finding “it is unusual for an employer acting in good faith to employ a

person and simultaneously seek his or her dismissal, in the absence of sudden and unexpected

new circumstances”77 which were not proved in this case. Secondly, he was the first and only

employee dismissed on the basis of Section 14(8) of the Public Service Act within the time frame

of 2003 to 2008, even though two Prosecutor Generals had been appointed within those years.

The circumstances of his reinstatement, namely; not being given a badge to access the building

and his having to wait outside until someone let him in, to not being given an office or any tasks

to perform for the ten days of his employment were also frowned upon by the court. “In view of

77 Paragraph 53


30

the above and on the basis of the material before it, the court considers that there are sufficiently

strong grounds for drawing an inference that the applicant’s second dismissal from his

employment was not related to an ordinary labour dispute, but had all the characteristics of

another act of retaliation for his disclosing the letters in 2003.”78 The court subsequently found a

violation of Article 10 because the acts in 2008, amounted to an interference by public

authorities on the Applicant’s freedom of expression of 2003.

Importance of case

Although the court does not discuss the protection of persons during the post speech period, this

case is instrumental in showing the actual existence of a post speech period and how long it can

last. In this case, the attribution of acts against the Applicant, by the public authorities in 2008 to

his exercise of freedom of expression in 2003, can imply that his post speech period stretched to

a number of years. This shows that once specific acts against a person can be connected to his or

her exercise of freedom of expression during a previous time, a violation of the person’s prior

freedom of expression can be established, even if the time spans to a number of years.

2.3 CONCLUSION

Freedom of expression in the CoE extensively entails a protection of persons from harm during

the post speech period, as can be witnessed from the case studies above. This post speech period

can stretch to a number of years once the on-going attacks can be attributed to a prior exercise of

freedom of expression. The ECtHR has emphasized an existence of positive obligations of

78 Paragraph 57


31

contracting states to not only endeavor to protect individuals from harm that is attributed to their

exercise of freedom of expression, but to also prosecute those involved in the harm. A failure of

which, once the harm is occasioned and is foreseeable, amounts to both a violation of the right to

life and freedom of expression. In addition, contracting states also have a negative obligation to

abstain from performing acts that in essence interfere with the individuals’ freedom of

expression. The ECtHR in Castells V Spain also noted that criminal prosecutions and convictions

are very likely, the most dangerous post expression interferences with freedom of expression.79

79 Supra, note 64


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CHAPTER 3: AFRICAN UNION LEGAL FRAMEWORK

3.1 INTRODUCTION

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


33

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


34

individuals under their jurisdiction from the harmful acts of others. Thus, an act by a private

individual and therefore not directly imputable to a state can generate responsibility of the state,

not because of the act itself, but because of the lack of due diligence to prevent the violation or

for not taking the necessary steps to provide the victims with reparation.”87

3.2 AFRICAN COURT/COMMISSION ON HUMAN RIGHTS CASES

The ACtHPR and ACoHPR have handled numerous cases on interference of freedom of speech

mainly by state authorities. Most of the cases merely re-state every individual’s right to freedom

of speech and whether or not an interference violated the right as protected under the ACHPR.

The cases handled lack explicit mention of protection of individuals during the ‘post speech

period’ however there are some significant cases where the court addresses whether state parties

have a positive obligation during the post speech period, or not, and what this obligation entails.

The cases chosen to be discussed are those widely referred to in a number of cases by the

ACtHPR and ACoHPR and those considered to be of significant importance in relation to how

the right to freedom of speech in the AU is interpreted, as discussed below.

CASE STUDY 1: BENEFICIARIES OF LATE NORBERT ZONGO, ABDOULAYE

NIKIEMA ALIAS ABLASSE, ERNEST ZONGO, BLAISE IIBOUDO AND MOUVEMENT

BURKINABE DES DROITS DE L’HOMME ET DES PEUPLES V BURKINA FASO

(MERITS) (2014) 1 AfCLR 219

87 Supra, note 86, paragraph 143


35

Facts.

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)


36

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.


37

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


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)


38

It can be argued that this ruling expands what type of actions can constitute violations of freedom

of expression in the AU. Specifically, not thoroughly investigating an attack on a journalist, done

in retaliation for a story published, can be considered a restriction on freedom of expression

because it can be conceived as working to intimidate other journalists from writing on similar

issues. The decision also provides for a binding and in some instances, persuasive precedent with

which states can apply.

CASE STUDY 2: IN THE MATTER OF INGABIRE VICTOIRE UMUHOZA V REPUBLIC

OF RWANDA, APPLICATION NO. 003/2014, JUDGMENT OF 24 NOVEMBER 2017,

AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS.

Facts.

The Applicant, Victoire Umuhoza, a Rwandese national and political activist, made a public

speech at the Kigali Genocide memorial, touching on corruption within government circles and

the pain suffered by not only the Tutsi victims of the genocide, but the Hutus as well. Following

the speech, she was arrested and charged with crimes of:

“propagating the ideology of genocide, aiding and abetting terrorism, sectarianism and

divisionism…undermining the internal security of the state, spreading rumors likely to incite the

population against political authorities and mount citizens against one another…establishing an

armed branch of a rebel movement…attempted recourse to terrorism, force of arms and such


39

other forms of violence to destabilize established authority and violate constitutional

principles.”98

She was found guilty by the High Court of Rwanda for the “…offences of conspiracy to

undermine established authority and violate constitutional principles by resorting to terrorism

and armed force…minimization of the genocide…” and was sentenced “…to 8 years of

imprisonment with hard labor.”99 She filed her case with the ACtHPR, after exhaustion of

domestic remedies, alleging violations of among others, Article 19 UDHR, 9 ACHPR and 19

ICCPR.

Issues.

The issue before the court was whether the acts of the Rwandese authorities, specifically the

criminal proceedings instituted against Victoire, amounted to an interference of her freedom of

expression.

Decision of the court.

In determination of the case, the court, using the three part test of whether the interference was

provided by law, necessary and proportional, found a violation of Article 9(2) ACHPR and 19

ICCPR, stating that “the applicant’s conviction and sentence for making the above statements

both at the Kigali Genocide memorial and on other occasions, was not necessary in a democratic

society.”100 The court also acknowledged that, “the right to freedom of expression is one of the

fundamental rights protected by international human rights law, the respect of which is crucial

98 Paragraph 8, page 3 99 Paragraph 23, page 7 100 Paragraph 162, page 41


40

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/

https://ijrcenter.org/2016/03/14/rwanda-withdraws-access-to-african-court-for-individuals-and-ngos/

https://ijrcenter.org/2016/03/14/rwanda-withdraws-access-to-african-court-for-individuals-and-ngos/


41

3.3 CONCLUSION

The court cases discussed shed a light on the prevailing legal climate surrounding the exercise of

freedom of expression in the AU, during the post speech period, with the government’s

inadequacy in protecting persons, who have spoken up, from harm, to dropping trumped up

charges on individuals who criticize the governance with an aim of silencing them. The explicit

mention of the protection of persons during the post speech period is lacking both in the legal

instruments, and the court decisions, however, it can be implied from the case studies, that state

parties of the AU have a duty to not only protect their citizens from harm during the post speech

period, but also investigate and bring to justice the instigators of the attack.


42

CHAPTER 4: ANALYSIS OF CASES AND CONCLUSION

4.1 ANALYSIS OF CASES

The cases discussed from the CoE and AU establish that state parties possess a positive

obligation in relation to protecting persons being targeted for expressing an unpopular opinion,

during the post speech period. This obligation entails the effective investigation into the

circumstances of a case and the prosecution of those involved in the attack. The failure of the

state to do so has amounted to not only a violation of the right to life, but also freedom of

expression as evidenced in Dink V Turkey and Beneficiaries of Late Norbert Zongo, Abdoulaye

Nikiema Alias Ablasse, Ernest Zongo, Blaise IIboundo and Burkinabe Des Droits De L’homme

et des Peuples V Burkina Faso.

These positive obligations exist irrespective of whether the interference is by third parties or state

organs, and in the CoE, extend irrespective of whether those subject to the attacks are considered

criminals by the state, as seen in Ozgur Gundem V Turkey. The cases also accepted that freedom

of expression contains a negative obligation on states to avoid doing acts that eventually interfere

with the right as expressed in Ozgur Gundem V Turkey and Ingabire Umuhoza V Republic of

Rwanda.

4.2 CONCLUSION

Freedom of expression is one of the most important rights for the proper functioning of a

democratic society. It is provided for in both international human rights instruments like UDHR

and ICCPR in Article 19, as well as regional human rights instruments like the ACHPR in


43

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


44

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freedom of speech and freedom after the speech

Documents