01: Freedom of Expression – the basics
Freedom of expression is not an ideal or nice-to-have. It is a basic human right.
Yet, all too often authorities in Africa seek to suppress the free exchange of information and opinion by jailing journalists and bloggers, by deploying sweeping laws, and by refusing to disclose information of public interest. And they risk violating international law and universally agreed principles in the process.
Here are a few pointers on how citizens can defend against such attempts to limit freedom of expression and access to information.
THE GROUND RULES
Article 19 of the Universal Declaration of Human Rights formulates one of the most basic rights enjoyed by all human beings. It is the essential point of reference for all freedom of expression issues:
“Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
This clear statement has stood the test of time since 1948, when it was adopted by the General Assembly of the United Nations. It has become the norm for assessing laws in democratic systems of governance the world over. All UN member states are expected to abide by it and it can be referred to in all these countries – be they democratic or authoritarian.
Article 19 includes two rights – one on the output side of expression (“right to impart”), and one on the input side (“right to seek, receive”). The two are two sides of the same coin. If there are restrictions on “imparting expression”, the range of information and ideas that people can “seek and receive” is going to be limited. If the act of seeking and receiving is restricted, there is not much point in imparting expression that people will not have access to freely.
Without a default setting of people having unhindered access to all sorts of media – from print, broadcasting to websites and social media – both parts of this right cannot be realised.
AFRICAN STANDARDS
The Declaration of Principles on Freedom of Expression and Access to Information in Africa was adopted by the African Commission on Human and Peoples’ Rights in 2002 and updated in 2019.
In the Declaration, the member states of the African Union commit to the following:
“Were affirm the fundamental importance of freedom of expression and access to information as individual human rights, as cornerstones of democracy and as means of ensuring respect for all human rights.”
AU member states are expected to comply with this Declaration. Courts across the continent use it in cases dealing with violations of media freedom. The document is also an indispensable tool in campaigns to preserve or fight for freedom of expression and access to information.
HOW TO TEST THE LEGITIMACY OF RESTRICTIONS
While there is no doubt about every person being entitled to seek, receive and impart information, the right to freedom of expression is not absolute. It may, exceptionally, be restricted under certain, narrowly defined conditions.
According to the Declaration of Principles on Freedom of Expression and Access to Information in Africa, states may only act to limit the right to freedom of expression (including access to information) if such a curb is a necessary and proportionate means in a democratic society to achieve the stated aim; if this aim is legitimate and if this measure is authorised by law.
Together, these three preconditions constitute what is termed the Three-Part Test: All limitations on freedom of expression and access to information must meet all these preconditions, meaning they must:
- be justifiably necessary and proportional – meaning the least intrusive measure possible in order to protect other basic rights,
- serve a legitimate purpose according to international standards,
- be codified in written laws and regulations and exclude subjective interpretations and applications.
The Necessity and proportionality
The extent of a curb on freedom of expression is often overly wide, and with disproportionate penalties for offences – like the proverbial use of a shotgun to stop a fly. This applies for generalised definitions of hate speech, and almost always in regard to so-called “false news” or “fake news”. Such sweeping laws allow for the penalisation of expression that does not intend to, and is also unlikely to, incite hate or spread falsehoods that harm human rights.
Or take defamation. There may be a law that is compliant with the three-part test, and it may have the narrow purpose of protecting the right to dignity and reputation. But that does not make it necessary or proportionate, for example, to jail a journalist for publishing true information about a politician being corrupt. As the AU’s Declaration says: “No one shall be found liable for true statements, expressions of opinions or statements which are reasonable to make in the circumstances”.
Legitimate purpose
The South African constitution lists reasons for legitimate restrictions of freedom of expression:
“Propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm…”.
Kenya’s Constitution says that the right to freedom of expression does not include the protection of “propaganda for war; … incitement to violence; … hate speech; or … advocacy of hatred that … constitutes ethnic incitement, vilification of others or incitement to cause harm; or … is based on any ground of discrimination.”
“National security” as a handy excuse
In many cases, the reason given for restricting freedom of expression or access to information is the protection of “national security” or “public order”.
These broad concepts are open to interpretation and biased reading. Without any further specification, they can easily be used to suppress citizens’ freedom of speech, harass journalists or exercise censorship. They may be – and often are – resorted to as a handy excuse for denying access to information held by the state, especially when such disclosure might be uncomfortable for those in power or expose corruptive behaviour by state officials.
“Freedom of expression shall not be restricted on public order or national security grounds unless there is areal risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression.”
In 1995, under the auspices of the NGO Article 19, a group of experts developed the Johannesburg Principles which defined grounds for restrictions of freedom of expression in the “national interest”. They are only legitimate if they are meant to “protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government”.
“Public morals”
“Public morals” is another rationale which is often abused by authorities. For example, they ban publications or websites which support equal rights of gay and lesbian Africans, because such orientations are branded as generally conceived to be “wrong behaviour” – although Africa has a tradition predating colonialism that shows African tolerance of consenting adult sexual preferences. Such censorship imposes one community view over the rights of a minority and thus needs to be challenged. However public morals are interpreted, they cannot be applied in ways that violate people’s entitlement to the right to equality. “Traditional values” for example cannot override women’s right to expression, to vote, etc.
“Within the law”
Some actors put emphasis on a clause in Article 9 of the African Charter on Human and Peoples’ Rights, which says that “every individual shall have the right to express and disseminate his opinions within the law”.
Couldn’t that open the door for all kinds of restrictive provisions in national legislations? It could – but it should not. Every law or other regulatory provision on a basic human right must itself stand up to the three-part-test: it must be written to serve the purpose of law (i.e. being narrowly framed and enabling people to predict when something violates it), and especially whether it is for legitimate purpose, and meets the criteria of being necessary and proportional.
SUMMING UP
In essence, then: Advocates and defenders of freedom of expression and access to information are not running out of work any time soon. We have good reason to keep up their fight against any attempts to limit or deny these basic human rights. But we also have good reason to be optimistic: international human rights law is on our side.
This INFO BITE is selected from the online course on Media
and Digital Policy in Africa, offered by Stellenbosch University
in association with Namibia Media Trust.
There are free and paid options available for the full course.
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