Press Freedom, Violence Against Speakers / Impunity
The Case of Orlando Sierra Hernández
Closed Expands Expression
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Deyda Hyadra, an advocate of media freedom who was critical of the government, was one of Gambia’s most important journalists. He was assassinated on December 16, 2004. His family members and the International Federation of Journalists filed an application in the Economic Community of West African States Court (“ECOWAS”) against Gambia on the grounds that the Gambian Government failed to effectively investigate the crime, and in doing so, it allowed impunity, violated the right to freedom of expression, and failed to provide redress. The Gambian Government denied all claims. The ECOWAS determined that, indeed, Gambia did not properly investigate the crime, allowed impunity, and violated the right to freedom of expression. The court also determined that the Gambian Government was obligated to provide redress to the Hydra’s family because of its failure to effectively investigate the crime.
Deyda Hydara Jr. and Ismaila Hydra (“the Applicants”) are the decedents of Deyda Hydara. Deyda Hydara was a Gambian journalist and cofounder of The Point newspaper. Hydara dedicated much of his life to defending the freedom of the media in Gambia. During his life, he received several death threats because of his journalistic work. He was assassinated on December 16, 2004, by a drive-by shooter. Hydara’s family contended that he was under constant surveillance by the government, including the day he was murdered. The Applicants claim that the state did not allow public scrutiny of the investigation.1 The government also prosecuted seven journalists for sedition because they condemned the Gambian Government’s failure to conduct a proper investigation into Hydara’s murder.
The Applicants filed an application against the Gambian Government on November 23, 2011, arguing that the Gambian Government: 1) failed to effectively investigate the murder of journalist Deyda Hydara; 2) caused and tolerated impunity concerning the death of Hydara; 3) violated the right to freedom of expression; and 4) failed to provide redress to Hydara’s family, because failing to properly investigate the crime inhibited the family from obtaining compensation. The International Federation of Journalists joined the application as the third Applicant. The Gambian Government rejected the notion that it did not properly investigate the death of Hydara and that it tolerated impunity following the crime.
Hydara v. Gambia, ECW/CCJ/APP/30/11, p. 3 (2014). ↩
Justice Hansine N. Donli delivered the judgment of the ECOWAS.
The main issue before the court was whether Gambia was responsible for the violation of the right to freedom of expression concerning the death of journalist Deyda Hydara. The ECOWAS also needed to determine whether the state properly investigated the death of Hydara, whether it caused and tolerated impunity, and whether it failed to provide the Applicants with redress.1 The Applicants founded their application on Articles 1 (obligations of Member States), 4 (right to life) and 9 (freedom of expression) of the African Charter of Human and Peoples Rights (“ACHPR”), and Article 66 of the Revised Treaty of ECOWAS. The Gambian Government rejected the entire claim brought forth by the Applicants.2
The ECOWAS analyzed the Applicants’ claim of impunity and freedom of expression simultaneously. Firstly, the Applicants made reference to jurisprudence concerning government mistreatment of journalists. The ECOWAS established that a state breaches international law and its treaty obligations when “it fails to protect media practitioners including those critical of the regime.”3 The right to exercise freedom of expression, according to the court, includes the right and freedom to openly criticize the government.4 The ECOWAS also made reference to Article 66 of the Revised Treaty of ECOWAS and deemed that the Article “imposes an obligation on Member States to assure a safe and conducive atmosphere in the practice of journalism.5 Thus, the court added that the consequence of systematic impunity has a chilling effect on journalists attempting to exercise journalistic duties and to exercise the right to freedom of expression.6
The Applicants established that the Gambian Government did not provide redress or compensation to the family for the death of Hydara and for the violation of his right to freedom of expression.7 The Applicants also submitted that the state’s failure to effectively investigate the crime against Hydara precluded them from obtaining compensation.8 The court awarded compensation regarding the state’s failure to properly investigate Hydara’s assassination.9 Justice Donli conveyed that there were various irregularities during the criminal investigation that included the failure of a ballistics report and complicity in Hydara’s killing by the state’s intelligence agency. The court determined that the state’s intelligence agency was not impartial enough to carry out a proper investigation.
Accordingly, ECOWAS awarded the Applicants US$50,000 in compensation.
Hydara v. Gambia, ECW/CCJ/APP/30/11, p. 4 (2014). ↩
Id. at p. 5. ↩
Id. at p. 6. ↩
Id. at p. 9. ↩
Id. at p. 10. ↩
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression as it highlights that impunity allowed and tolerated by a government can have a chilling effect on the right to freedom of expression. It also recognizes that state has an obligation to protect media practitioners, especially those who are critical of government. Freedom of expression, according to the decision, includes the right to criticize and scrutinize a government. Unfortunately, as of March 29, 2016, the Gambian Government has not complied with the ECOWAS court’s decision. Several human rights organizations have denounced Gambia’s non-compliance as an element stifling freedom of expression and furthering impunity in the state.
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.
According to articles 9 and 76 of the Revised Treaty of the Economic Community of West African States, ECOWAS Court decisions are binding on all Member States.
Let us know if you notice errors or if the case analysis needs revision.