Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The African Commission on Human and People’s Rights found that the Nigerian government, by banning publications and detaining activists and journalists after the annulment of Presidential election results, violated the right to freedom of expression. The 1993 Presidential election results were annulled by the federal military government who claimed they did so in the public’s interest, and this action resulted in protests. Many of those who protested the government’s action were arrested, one magazine was banned, and thousands of copies of magazines were seized. The Commission held that the government breached the citizens’ right to participate freely in the politics of their country and their right to freedom of expression due to the seizure of certain publications and unlawful detention of protestors. The Commission reasoned that the Government should not have restricted rights protected by the constitution, or especially those protected by international human rights law.
On June 12, 1993, free and fair presidential elections were held in Nigeria. Dissatisfied that Abiola, the Social Democratic Candidate won, the Federal Military Government annulled the results on June 23. Decrees were put in place which made the government’s actions legal, and also guaranteed that certain candidates could not stand for election again.
Many opposition activists who protested the annulment of the elections were arrested and detained, many without charges ever being brought. The government also banned “The News” magazine and declared four of its editors wanted by the police. Further, the authorities seize 50,000 copies of the weekly magazine “Tempo.”
The government conceded that annulling the election and setting up a government was a coup and that those who opposed it were arrested and detained. However, it justified its actions by claiming that there were irregularities in the election and fundamental issues with those elected, and to prevent further issues it chose to form a different government. “The government felt that it had to avoid chaos and it restored an interim government, rather than even perpetuating its own regime” [para. 10] The government also admitted that many people were arrested and detained at the time the elections were annulled, but claimed that “many have now been released”
Some of those detained brought a complaint to the African Commission on People’s and Human Rights, alleging violations of articles 6 (the right to liberty and to the security of his person) and 13 (the right to participate freely in the government of his country) of the African Charter on Human Rights.
The government maintained that its actions were justified it actions by referencing the “chaotic” situation that arose following the annulment.
The underlying issue for the Commission to decide was whether the government had breached fundamental human rights in the annulment of the elections and their subsequent actions. The Commission rejected the government’s argument that these measures were taken in order to prevent a certain situation from arising, and found the decrees created by the government, tailored specifically to certain individuals or legal entities, likely to amount to unequal treatment before the law and therefore in breach of Article 1, that the Charter be respected by all Member States by recognizing the rights, freedoms and duties contained within.
Furthermore, there is a “basic premise of international human rights law is that certain standards must be constant across national borders, and governments must be held accountable to these standards” [para. 47] In this case it is apparent that this international standard was not respected as citizens were denied their rights to participate freely in the politics of their country. This also constituted a breach of Article 20.1 of the Charter, the right to determine ones ‘”political status”.
Sitting in Banjul on October 31, 1998, the Commission also found there was a clear breach of freedom of expression through the banning and seizure of certain publications and unlawful detention of protesters regardless of whatever situation claimed by the government, especially given that libel suits, where appropriate were available under Nigerian law. The Commission noted that “competent authorities should not enact provisions which limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international human rights standards” (ACHPR\A\101/93:18). [para. 57] Here, the Commission declared that the government’s actions undermined rights and led to a limitation of the right to freedom of expression.
The detention of many protesters, the banning of the two candidate to participate in elections and the general annulment of the election results also led the Commission to find a breach of the right to freedom of expression and the right to participate freely in politics. The Commission’s reasoning behind this decision being that the Government should not have restricted rights protected by the constitution, or especially those protected by international human rights law.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In order to limit expression, it must be necessary to achieve a legitimate purpose. In the case, the Commission found that preventing a hypothetical situation from happening is not good enough grounds to contract expression. This decision also reiterates that there is an international standard which needs to be complied with in order to protect fundamental human rights.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Let us know if you notice errors or if the case analysis needs revision.