Twenty years after the Windhoek Declaration on press freedom

The February working session
included only a few participants,
so as to facilitate as flowing a
discussion as possible. From among
<strong>the</strong> commission’s working group,
only Chigovera and Pityana were
able to attend, along with some
staff from <strong>the</strong> African Commission
and a small number of experts.
This meeting was one of <strong>the</strong>
most intense and intellectually
stimulating of <strong>the</strong> large number of
meetings I have been to in my many
<strong>years</strong> as a freedom of expression
activist and campaigner. The
discussions were challenging, and
much expertise and experience was
brought to bear on <strong>the</strong>m.
Importantly, all of <strong>the</strong> participants
were aware, from sometimes different
institutional perspectives but
always with <strong>the</strong> same overall goal
in mind, of <strong>the</strong> significance of what
we were doing. I have no doubt that
<strong>the</strong>se factors played a key role in
forging a document of <strong>the</strong> superior
quality as reflected in <strong>the</strong> declaration.
The draft that I had prepared as
background for <strong>the</strong> meeting was
intended to represent a high-water
mark of protection for freedom
of expression. I suspected, from
previous experience, that <strong>the</strong> overall
trend would be to dilute <strong>the</strong> strong
statements of support for this
fundamental right as contained in
<strong>the</strong> draft.
This did sometimes happen. For
example, I remember Chigovera
remarking, amusingly, in response to
a line in <strong>the</strong> draft that would have
abolished sedition, false news and
contempt laws, that this seemed an
attempt to undo all three branches
of government. However, I was very
pleasantly surprised at how little
of <strong>the</strong> substance of <strong>the</strong> initial draft
ended up actually being removed,
although several provisions were
rendered into a ra<strong>the</strong>r more
diplomatic language.
Fur<strong>the</strong>rmore, <strong>the</strong> trend was by
no means one way; several
provisions were added to <strong>the</strong> draft to
streng<strong>the</strong>n protection of freedom of
expression. For example, provisions
were added on:
• <strong>the</strong> right to equal enjoyment of
freedom of expression without
discrimination,
• <strong>the</strong> promotion of local
languages,
• <strong>the</strong> need for public
broadcasters to be available
throughout <strong>the</strong> whole territory
of <strong>the</strong> country, and
• <strong>the</strong> desirability of media
owners and professionals
adopting agreements to
protect editorial independence
against undue commercial
influence.
The preamble was also streng<strong>the</strong>ned,
including by highlighting <strong>the</strong>
particular importance of <strong>the</strong> broadcast
media in Africa and making reference
to various relevant African
processes and documents.
One of <strong>the</strong> really remarkable
aspects of <strong>the</strong> meeting – given
<strong>the</strong> wide variety of backgrounds
of <strong>the</strong> participants – was that we
managed to come to an agreement
on every provision. While this
sometimes involved compromise or
even sacrifice, in no instance did we
run into an impasse that we could
not address amicably. And, in many
cases, apparent disagreements
were resolved through imaginative
formulations that managed to retain
what was important to one party
while addressing <strong>the</strong> objections of
<strong>the</strong> o<strong>the</strong>r.
Following on from this initial meeting,
a second draft was prepared,
reflecting <strong>the</strong> agreements that had
been reached. This draft was <strong>the</strong>
subject of a much wider consultation
among African stakeholders,
held in Pretoria in May 2002. I did
not attend that meeting but by all
accounts it was again characterised
by very serious and high-level dis-
Section 1: Freedom
cussions and also by a high degree
of consensus.
The most significant change introduced
at <strong>the</strong> second meeting was to
add a new principle on regulatory
bodies for broadcasting and telecommunications.
Using language
that closely reflected that of <strong>the</strong> African
Charter on Broadcasting 2001,
it called for such bodies to be independent.
O<strong>the</strong>r substantive changes
included:
• protection for whistleblowers;
• editorial independence of public
broadcasters,
• respect for <strong>the</strong> non-combatant
status of journalists in conflict
situations, and
• a new principle calling on states
to give practical effect to <strong>the</strong>
principles.
“The most significant
change introduced
at <strong>the</strong> second
meeting was to add
a new principle on
regulatory bodies
for broadcasting and
telecommunications.”
Up until this point <strong>the</strong> process,
which had largely involved <strong>the</strong>
working group and civil society
organisations, was such that it was
natural that <strong>the</strong> draft declaration
strongly supported freedom of
expression. Although <strong>the</strong> process
had resulted in a very strong draft
declaration, <strong>the</strong> desired impact
would only be achieved if it were to
be formally adopted by <strong>the</strong> African
Commission. This approval was <strong>the</strong>
last hurdle to be cleared – and it was
not an inconsiderable one.
The draft declaration was considered,
and ultimately adopted, at <strong>the</strong>
32nd Ordinary Session of <strong>the</strong> com-
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