In her report to the 44th Session of the ACHPR
in Abuja, Nigeria Advocate Tlakula singled Zimbabwe, Sierra Leone,
Eritrea, Nigeria, Ethiopia, Lesotho and Cameroon as the offending
countries. "The Special Rapporteur has been informed that
in the run-up to the 27 June 2008 presidential elections run-off
(in Zimbabwe), numerous journalists and leading cast members
of plays perceived as critical of the government were allegedly
harassed, arrested and detained. I have also received reports
that journalists have been convicted for offences such as intentionally
publishing falsehoods contrary to the country's media law," she
said.
"
In this regard, I would like to remind member states that unlike
other international human rights instruments, the African Charter
does not contain a derogation clause. Thus, regardless of circumstances
such as conflict, civil unrest or any other form of emergency,
States have a perpetual obligation to respect, promote, protect
and fulfil the right to freedom of expression as provided under
the African Charter and the Declaration on the Principles of
Freedom of Expression which supplements it."
She noted that only a few countries had adopted legislation on
freedom of information that conforms with regional and international
human rights standards and urged member states to ensure that
their laws on Freedom of Information conform with applicable
regional and international human rights standards particularly
Principle 4 of the Declaration on the Declaration on Principles
of Freedom of Expression in Africa.
The Declaration states among other provisions, that public bodies
hold information not for themselves but as custodians of the
public good and everyone has the right to access that information,
subject only to clearly defined rules established by law. South
Africa, Mozambique, Malawi and Madagascar are the only four countries
in southern Africa whose constitutions expressly protect the
right to freedom of information.
"
There is need for continuous dialogue with States reminding them
that adoption of effective freedom of information legislation
remains a yardstick for determining transparency and accountability
towards promotion of access to social and economic development
in any society which lays claims to adherence to democratic ideals," she
said.
She paid tribute to Non-Governmental Organisations that have
worked "tirelessly" to promote the adoption of freedom
of expression laws and through whose intervention draft legislations
have been introduced in various member states. MISA-Zimbabwe
has produced a model access to information law as a lobby and
advocacy tool for the repeal of the draconian Access to Information
and Protection of Privacy Act (AIPPA).
Commissioner Tlakula noted that AIPPA which only provides for
access to information held by public bodies and for appeals to
be lodged with the statutory Zimbabwe Media Commission (which
is still to be constituted following the December 2008 Amendments),
has been widely criticised for its broad exemption provisions.
The Special Rapporteur drew parallels with the positive aspects
of South Africa's Promotion of Access to Information Act whose
implementation is overseen by the South African Human Rights
Commission, an independent constitutional body.
The South African Act contains exemption provisions that conform
with international human rights standards and is subject to the
public interest test. Its major weakness though is that it provides
for appeals against decisions of public and private bodies to
be lodged with the courts which are largely inaccessible to individuals
in terms of costs and inordinate delays.
Advocate Tlakula said all laws relating to criminal defamation
wherever they exist should be repealed or amended in conformity
with the provisions of the Declaration on the Principles of Freedom
of Expression in Africa. Laws on defamation should respect the
following standards:
no one shall be found liable for true statements, opinions or
statements regarding public figures of which it was reasonable
to make in the circumstances.
public figures shall be required to tolerate a greater degree
of criticism.
sanctions shall never be so severe as to inhibit the right to
freedom of expression.
Applauding the courage and resolve of journalists, media practitioners
and NGOS that have committed themselves to advancing the right
to freedom of expression at great personal risk as well as those
that have been killed in defence of that right, the Special Rapporteur
said she planned to introduce the African Commission Human Rights
Journalist/Media Practitioner of the Year Award. The winner of
the award which will honour journalists and media practitioners
that have made outstanding contributions to the advancement of
freedom of expression and access to information in Africa, will
be announced at a ceremony during the 45th Session of the ACHPR
in May 2009 as part of commemorations of the World Press Freedom
Day.
Rashweat Mukundu
Programme Specialist: Media Freedom Monitoring
MISA Regional Secretariat
21 Johann Albrecht Street
Private Bag 13386
Windhoek, Namibia
Tel: + 264 61 232 975
Fax:+264 61 248016
Mobile: 00 264 813 675 362
E mail rashweat@misa.org, misaalerts@gmail.com
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