Current state of freedom of expression and access to information in Africa
There is a sense in which, at the legislative and policy levels, there are positives which have been happening. For example, we are seeing a slow but gradual increase in numbers of states which have established specific laws on accessing information. That is very welcome. We are also seeing judiciaries around Africa which are quite proactive in terms of ensuring that the rights of people and press are not undermined.
At the same time, we are also seeing a trend of violations. Journalists continue to be quite unsafe in Africa. We see journalists continuing to be killed, continuing to be injured, and continuing to be stopped from undertaking their professional work. We see journalists being harassed online. Unfortunately we also see governments which are responding to particular situations by shutting down the internet.
We are seeing a slow but gradual increase in numbers of states which have established specific laws on accessing information
The internet is an important tool for facilitating expression and information, so when governments shut down the internet, that cannot be a good thing in terms of their obligations to respect freedom of expression and access to information. So in my advocacy, I am really calling upon our governments to stop their practice of shutting down the internet. I think even where there may be problems of disinformation or misinformation, there can be better ways of dealing with that without actually shutting down the internet.
Obstacles hindering respect for freedom of expression in Africa
There is an instinct, perhaps among state bureaucracies or politicians, to suppress views which run counter to theirs, those of them who are in power. I suppose it’s an instinct that we do not want to hear you speak, because your view will be different from ours, and we are the ones who are ruling. And honestly that cannot be a good way of dealing with things. I think society progresses better where there can be robust engagements and where there can be disagreements, because when there are disagreements you have discourse and then you have positive results out of discourse. If you have a society which is closed, a society who simply says yes, then that society cannot really progress.
If you have a society which is closed, a society who simply says yes, then that society cannot really progress
Of course this also has been proven in respect to development. If we shut down people from speaking, people will not say when they are hungry, people will not say when they are thirsty. So you see we will not know where famines are happening, where drought is happening. We will not know where people are dying from treatable diseases. So I think Africa needs to be smart in this regard. That actually expression and information facilitates the exercise of all other human rights.
Assessment of the independence of the commission
I think independence is overused as a term. Because really I don’t suppose one can have a theoretical notion of independence if independence imposes independence from everything around you. If you are to think about independence in those terms, then one would be saying that the commission would need to be independent of states, independent of NGOs, and independent of stakeholders. And that really doesn’t make sense.
I think on a more practical level, the question on hand would be whether the commission is able to execute its stated functions, its legal functions effectively. So you then have to look at specific functions. If you look at the commission’s protection function, complainants can file cases before the commission and the commission can make determinations on those cases. I can assure you in that respect, once a case is filed before the commission, there are very clear procedures and rules on how to deal with that.
And no one, either state or civil society organization, would actually be able to interfere, or indeed does interfere, with that sort of process. I think the commission has had to have engagements for example with the African Union Commission, in respect to providing the commission with more autonomy, and for example in respect to recruitment, to make sure we are more efficient. But ultimately we still have to be resourced by the African Union Commission.
We are extremely happy with the procedures which we use presently because they mean that sessions such as this one are places where we can get independent thinking and independent information from around Africa
I think the question of independence comes up, for example, in respect to the request by the policy organs a couple of years ago for the commission to deregister or to withdraw the observer status of the Coalition of African Lesbians. I think the commission made its position quite clear in a series of activity reports which were submitted to the policy organs to the effect that no one’s rights may be violated, no one will be discriminated against on the basis of their sexual orientation or gender identity.
I think the eventual decision to acquiesce to the request by the policy organs; I would term that as clearly, perhaps, political considerations came into play, pragmatic considerations came into play. From time to time clearly you can blot your record. Perhaps in due cause we will be judged on whether indeed we blotted our record in that regard, but I’m sure that there were clear pragmatic considerations that were had in respect to the specific withdrawal of registration of the Coalition of African Lesbians.
I think moving forward, it’s not about a theoretical notion of independence. It’s about focusing on quite specific issues. It’s about asking if the protection mandate is under threat. And the answer is actually no, it is not under threat. There have been questions that have been raised about procedures for giving observer status to NGOs and that is a consideration which the commission is quite clear about. We are extremely happy with the procedures which we use presently because they mean that sessions such as this one are places where we can get independent thinking and independent information from around Africa by people who actually work on these issues and in these NGOs. So I think the commission will be intent on ensuring that its current framework for providing observer status to NGOs is not undermined.
Lawrence Mute serves as the Special Rapporteur on Freedom of Expression and Access to Information for the African Commission on Human and Peoples Rights. He is also the outgoing Vice Chairperson of the commission. He focuses on issues involving Article 9 of the African Charter on Human and Peoples Rights, which establishes the right to freedom of expression and access to information. He is mandated with ensuring that states are properly implementing their Article 9 obligations.