Twenty years after the Windhoek Declaration on press freedom

information and <strong>the</strong> right to express
and disseminate opinion. Some
countries like Kenya, Nigeria, and
Tanzania have incorporated <strong>the</strong>
Charter into national law, meaning
that its applicability can be enforced
by local courts.
“Eighteen states have
clear provisions in
one way or ano<strong>the</strong>r
guaranteeing
freedom of
information.”
The retention of archaic legislation —
despite that likelihood that it would
not pass muster with international
human rights law — is mostly (ill-)
informed by <strong>the</strong> caveat on article
9 of <strong>the</strong> Africa charter, “within <strong>the</strong>
law”.
Yet laws like official secrets, criminal
defamation and o<strong>the</strong>r insult laws,
sedition and treason laws used to
persecute journalists fly in <strong>the</strong> face
of <strong>the</strong> positive legal instruments
agreed at <strong>the</strong> continental, subregional,
and national levels <strong>after</strong>
<strong>the</strong> <strong>Windhoek</strong> <strong>Declaration</strong>.
Such instruments include <strong>the</strong>
2000 African Union Charter
which underscored <strong>the</strong> centrality
of all fundamental human rights
as captured in <strong>the</strong> Universal
<strong>Declaration</strong> of Human Rights and
<strong>the</strong> International Covenant on
Civil and Political Rights (ICCPR).
These retrogressive laws also violate
<strong>the</strong> decision of <strong>the</strong> ACHPR in 2002
to adopt a declaration on principles
of Freedom of Expression — which
to date remains <strong>the</strong> strongest
elaboration of article 9 of <strong>the</strong>
African Charter.
On ano<strong>the</strong>r positive note at <strong>the</strong> continental
level, <strong>the</strong> African Union has
adopted two regional instruments
key to advancement of freedom of
expression. One is <strong>the</strong> African Con-
vention on Preventing and Combating
Corruption and related offences
— especially articles 5 and 9 which
seek legislative measures that protect
whistleblowers as well as access
to information laws. Similarly, article
12 provides legitimacy for media
and civil society organisations to
engage in <strong>the</strong> affairs of <strong>the</strong> state in
combating of corruption.
The 2007 African Charter on Democracy,
Elections and Governance,
commits governments to promoting
conditions to foster “citizen participation,
transparency, access to,
freedom of <strong>the</strong> press and accountability
in <strong>the</strong> management of public
affairs”. In addition, it prescribes “fair
and equitable access by contesting
parties and candidates to state
controlled media during elections”.
To advance political, economic and
social governance, state parties are
required to “promote freedom of
expression, in particular freedom
of <strong>the</strong> press and fostering a professional
media”.
At <strong>the</strong> national level, most African
countries have general provisions
guaranteeing freedom of expression
in <strong>the</strong>ir constitutions. This includes
<strong>the</strong> Eritrean Constitution — approved
in 1997 but not implemented.
Eighteen states have clear provisions
in one way or ano<strong>the</strong>r guaranteeing
freedom of information — <strong>the</strong>se
are Angola, Cameroon, Democratic
Republic of Congo, Ethiopia, Ghana,
Kenya, Liberia, Madagascar, Malawi,
Mali, Mozambique, Niger, Nigeria,
Senegal, South Africa, Tanzania,
Uganda and Zimbabwe . The number
gets lower as only seven countries
have passed at least nominal
freedom of information laws —
South Africa, Angola, Uganda,
Ethiopia, Liberia, Nigeria, and
Zimbabwe. The laws in Zimbabwe
and Angola stress exceptions, more
than access.
Therefore, <strong>the</strong> answer to <strong>the</strong>
question whe<strong>the</strong>r freedom of expression
is effectively protected
Section 1: Freedom
is that at constitutional level, mostly
yes, but national statutes continue
to be a big threat. Such threats are
increasing with <strong>the</strong> passage of antiterrorism
laws especially in Ethiopia,
Uganda, and Sudan and some governments’
overzealous approach to
control <strong>the</strong> internet.
One way forward might include
testing national laws against <strong>the</strong>se
continental instruments, within
each national jurisdiction and at
ACHPR. But <strong>the</strong>re is also <strong>the</strong> African
Court on Human and Peoples’ Rights
which has an overall mandate to
rule on Africa states’ compliance
with <strong>the</strong> African Charter and which
complements <strong>the</strong> protective role of
<strong>the</strong> ACHPR.
However, access to <strong>the</strong> court remains
dependent on <strong>the</strong> 25 AU member
states that have ratified <strong>the</strong> Court’s
protocol making a declaration that
will allow individuals and NGOs with
observer status to file a case against
<strong>the</strong>m. So far only four countries,
namely Burkina Faso, Malawi,
Mali and Tanzania have made <strong>the</strong>
declaration.
Although <strong>the</strong> Human Rights court
based in Arusha, Tanzania, is being
operationalised, it will be merged
with <strong>the</strong> Court of Justice and Human
and Peoples’ Rights to form <strong>the</strong>
“Africa Court of Justice and Human
Rights” once <strong>the</strong> protocol establishing
<strong>the</strong> latter enters into force. It is
a site that could contribute to creating
a more enabling environment
for media on <strong>the</strong> continent.
Media in Africa - 2011 | 67