Freedom of Association and Assembly / Protests, Political Expression
Tatár v. Hungary
Closed Mixed Outcome
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The African Court on Human and Peoples’ Rights held that the Beninese government had violated the rights to freedom of association, the right to free participation in the government and the right to non-discrimination under the African Charter of Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. A Beninese businessman based in France had filed an application challenging various Beninese laws which banned the alliance of political parties and independent candidature and introduced residency requirements, and prevented certain types of digital expression. The Court accepted that the laws violated the rights to equality, freedom of association and to participate in government and ordered that Benin repeal those laws. However, the Court held that the laws which restricted expression were permissible as the aim of preventing racial and xenophobic insults was legitimate.
On November 29, 2019, Sébastien Germain Marie Aïkoué Ajavon, a Beninese businessman living in France as a political refugee, filed an application before the African Court of Human Rights, arguing that laws recently enacted in Benin violated various rights. Ajavon submitted that the elections held on April 28, 2019 were irregular and that the election itself and the constitutional amendments and laws adopted by the Parliament subsequently violated the rights to, inter alia, strike; freedom of opinion and expression; freedom of assembly; freedom of association; and the right of political parties to carry out their activities freely.
Ajavon referred to Law No. 2018-34 of 5 October 2018 which made strikes by “military personnel, paramilitary personnel (police, customs, water, forests and hunting, etc.), health service personnel” unlawful [Footnote 54], and articles 551, 552 and 553 of the Digital Code prohibited “the offences of racially motivated and xenophobic insults using a computer system and that of incitement to hatred and violence on such grounds as race, colour, national or ethnic origin, or religion” [para. 121].
Ajavon noted that article 237(1) of and Law No. 2018-016 of 2 July 2018 on the Penal Code stated that “[a]ny unarmed gathering on a public road … that may disturb public peace shall be banned” and article 240 of the same law provided that “any direct provocation to start an unarmed gathering, either by a speech made in public, or by written or printed material displayed or distributed, shall be punishable”. In addition, articles 16 of the Charter of Political Parties provides that “the number of founding members of a political party must not be less than fifteen (15) per municipality” and article 48 of that Charter states that “where a political party violates the provisions of this law, the Minister in charge of the Interior may report the facts to the Public Prosecutor to seek the suspension or dissolution of the political party concerned. To this end, the public prosecutor shall, in urgency procedure, refer the matter to the competent court, which shall decide without delay.” Article 27 of the Charter of Political Parties states that “any political party loses its legal status if it does not present candidates for two parliamentary elections”. The Electoral Code of 2018 required, in article 249 that “No one may be a candidate unless he is at least twenty-five (25) years old in the year of the election, if Beninese by birth, he has not been domiciled for a (01) year at least, in the Republic of Benin, if, a naturalized Beninese foreigner, he is not domiciled in the Republic of Benin and has lived there continuously for at least ten (10) years.” Article 44 prohibited the use of electoral alliances presenting candidates as it stated that “electoral alliances are not authorized to present lists of candidates” and article 269 “requires that the declaration of candidacy must mention the name of the party to which the candidate belongs” [para. 200].
Ajavon approached the African Court of Human Rights, seeking a declaration that Benin had violated the African Charter on Human and Peoples’ Rights.
The decision was delivered by J. Oré, J. Kioko, J. Achour, J. Matusse, J. Mengue, J. Mukamulisa, J. Chizumila, J. Bensaoula, J. Tchikaya, J. Anukam, J. Aboud and J. Eno of the African Court on Human and Peoples’ Rights. The main issue for consideration was whether the impugned laws passed by the government violated international human rights standards including the right to freedom of expression and the right to freedom of assembly and association.
Ajavon submitted that provisions of the Digital Code violated the right to freedom of opinion and expression, protected by article 9(2) of the African Charter and article 19 of the ICCPR as the provisions did not meet the standard of a “law” and that the purpose of the penalties they attached was “neither legitimate, necessary nor proportional” [para. 114]. Ajavon also argued that Law No. 2018-34 of 5 October 2018 infringed the right to strike protected by article 15 of the Charter and Convention No. 87 of the International Labour Organization. Ajavon argued that laws restricting assemblies violated the Charter as any bans on assemblies should be made only by a judge and not through an administrative decision, and that the “organisers of a public assembly or their supporters should not be punished for acts committed by other people” [para 144]. Ajavon also argued that Benin’s argument for restricting the right to freedom of association to prevent the formation of regional political parties was irrelevant as “no such threat had been demonstrated” [para. 177]. Ajavon argued that the bans on political alliances for the purpose of nominating candidates and the independent candidatures under these provisions were contrary to established international human rights standards. He also submitted that the eligibility conditions of the residence requirement of one year for native Beninese and ten years for the naturalised person were unreasonable. Ajavon added that article 27(2) of the Charter of Political Parties violated Article 1(i) of the ECOWAS Protocol on Democracy which gives political parties the right to participate freely and without hindrance or discrimination in any electoral process.
Benin argued that there were no clear rights violations and that Ajavon was not the victim of any violation himself, and so the matter was inadmissible and the Court had no jurisdiction to hear the matter. The State argued that it had implemented restrictions on the right to strike due to “wanton misuse” of the right [para. 130]. In respect of the right to freedom of assembly, Benin submitted that the laws only prohibited protests which have been banned because of risks they pose, and that “the freedom to demonstrate has to be exercised in a manner compatible with the protection of public order” [para. 145]. Benin also argued that there must be a distinction between “organising a protest in a public place and provoking the start of a protest without due observance of the relevant legal framework” [para. 146].
In examining the alleged violation of the right to freedom of expression by the Digital Code, the Court noted that the freedom of expression is a “vehicle for the exchange and development of opinions” but that it was not absolute and could be subject to “certain restrictions provided for by law, which must, moreover, have a legitimate purpose, be necessary and proportional” [para. 119]. The Court held that the provisions’ restriction of the right was provided for by law and served the legitimate purpose of “combat[ting] any form of incitement to hatred or discrimination” [para 125], and that as the expression they criminalized was that which incited violence and discrimination – conduct which is prohibited under international law – the restrictions were necessary and proportional.
The Court acknowledged that there was no explicit right to strike in the Charter (but that it is a corollary of the right to work) but that the right is protected by article 31 of the Benin Constitution. It added that although article 31 required that “[t]he right to strike shall be exercised under the conditions laid down by law”, the State is also bound by the “principle of non-regressive measures” and so – once a State has recognized the right to strike “any act aimed at prohibiting or suppressing it is a breach of the principle of non-regression and constitutes a violation” of article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) [para. 138]. Accordingly, the Court held that the laws limiting the right to strike in Law No. 2018-34 of 5 October 2018 “deprived these workers of the exercise of a right recognised to them, thereby lowering the level of human rights protection they are entitled to; which is a breach of the principle of non-regression” and therefore violated article 8 of the ICESCR [para. 141].
In respect of the right to freedom of assembly and the bans on unarmed gatherings, the Court accepted that the right can be legitimately limited, especially in the interest of national security. It held that there was no violation to the right as the limitation was provided for by law, and was necessary and proportionate.
In examining whether Benin was justified in limiting the right to freedom of association through restricting the formation of specific political parties, the Court held that article 29(4) of the Charter which requires that everyone act “to preserve and strengthen social and national solidarity” meant that the limitation was justified. The Court did note that “the dissolution of a political party should be the exception and be based on reasonable and objective grounds” and that only a court and not the Minister of the Interior had the power to determine whether there was a grave threat to national security and whether to dissolve a political party [para. 188].
However, the Court found that Benin had violated the right by preventing the formation of electoral alliances to present lists of candidates. The Court also held that these provisions violated the right to free participation in the government of one’s country as making “membership of a political party a requirement for standing as a candidate in presidential, legislative or local elections, and therefore prohibiting independent candidates, amounts to a violation of the right” [para. 206]. The Court referred to the General Comment No. 25 of the UN Human Rights Committee, and also held that the restrictions on non-residents standing for election was unjustified and did not take into account the African context in which “many exiled opponents due to justified fears, continue, even from afar, to be interested in the situation in their countries of origin and were able, upon their return from exile, to stand for election” [para. 211]. The Court also held that the “mere fact of not standing as a candidate in two consecutive legislative elections … does not constitute reasonable and objective grounds for suspension or dissolution a political party” [para. 246].
Accordingly, the Court held that Benin had not violated the right to freedom of opinion and expression, freedom of assembly, freedom and security of the person – but had violated the right to strike, right to freedom of association, right to non-discrimination and the right to participate freely in the government of one’s country, as a result of the ban on independent candidates and the residency requirement imposed on all candidates.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The African Court on Human and Peoples’ Rights expanded expression by ruling that the government had violated the right to freedom of association, the right to free participation in the government and the right to non-discrimination by imposing unreasonable restrictions such as the ban on independent candidature, the introduction of residency requirements and loss of status of a political party if not fought for two consecutive legislative elections.
Although the Court found that the restrictions on freedom of expression in the Digital Code were provided for by law and served the legitimate purpose of preventing racial and xenophobic insults, it did so after balancing the competing rights.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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