Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or the “Commission”) found that Mauritania was responsible for the violation of the Right to Freedom of Association under Article 10.1 (Right to Freedom of Association) of the African Charter on Human and Peoples’ Rights (“The Charter”). The present case relates to the dissolution of the political party known as the Union des forces démocratiques-Ere nouvelle (“UFD/EN”) under the provisions of Articles 11 and 18 of the Mauritanian Constitution, and Articles 4, 25, and 26 of the Decree 91-024 of 25 July 1991, which punished any resort or attempt to damage the country’s image, incite violence or cause public outrage against the government. In this respect, the Applicant argued that the declarations delivered by the UFD/EN leaders during the pre-campaigns for the elections of 2001 were consistent with the Mauritanian Constitution. In the Applicant’s view, political debate constitutes one of the cornerstones of a democratic society; therefore, government and public officials are required to tolerate a higher degree of criticism, even if perceived as insulting. On the other hand, the Respondent State maintained that the dissolution of the UFD/EN was made on the basis of preserving national security and order as per Article 27 of The Charter. The Commission partly concurred with the Respondent State’s allegations that the dissolution order had a legitimate aim. However, the Commission ruled that the dissolution measure was disproportionate in light of the offenses attributable to the leaders of the UFD/EN. In conclusion, the Commission found no violation of the right to freedom of expression.
The present case concerned the dissolution of the political party known as the Union des forces démocratiques-Ere nouvelle (“UFD/EN”) based in Mauritania since 2 October 1991. At the time of the events, Mauritian political parties were preparing their campaigns for the 2001 elections. In this sense, the UFD/EN, as the main opposition party in the country, focused its political campaign mainly on criticizing the Mauritian government by disclosing alleged racist practices and misappropriation of public resources, among other governmental shortcomings.
On 28 October 2000, the Respondent State issued the Decree No. 2000/116, which ordered the dissolution of the political party UFD/EN pursuant to Articles 11 and 18 of the Mauritanian Constitution, and Articles 4, 25, and 26 of the Decree 91-024 of 25 July 1991 relative to political parties, which prevented “…political parties from destroying the country’s important image and interests, from inciting intolerance and violence and from organizing demonstrations that are likely to compromise public order, peace, and security” [para. 50].
On the same day, the Minister of the Interior, Posts, and Telecommunications informed Mr. Ahmed Ould Daddah, Secretary-General of the UFD/EN party, that the government had seized the party’s assets and properties as per Decree No. 2000/116. Subsequently, leaders of the UFD/EN who attended public demonstrations against the proscription of the political party were apprehended by the government, including Mr. Ahmed Ould Daddah, who was detained on 9 December 2000 and released days later.
On 25 December 2000, representatives of the UFD/EN filed a complaint with the Administrative Chamber of the Supreme Court indicating, inter alia, that Decree No. 2000/116 lacked sufficient legal motivation, was issued by an incompetent authority and was disproportionate to the interest to be protected. However, on 14 January 2001, the Administrative Chamber of the Supreme Court ruled UFD/EN’s complaint groundless. Since the Supreme Court’s decisions cannot be appealed against, Applicants were devoid of any ordinary judicial remedy per Mauritian law.
The dissolution decision made by the government was aggravated by the following statements issued by the UFD/EN:
According to the Respondent State, the declarations made by the UFD/EN incited violence and strife against the government. In this sense, the Respondent State argued that the UFD/EN’s declarations intended to cause damage to the image of the country, incited public outrage, and disturbed national stability, amounting to a violation of the Mauritanian Constitution and the Decree 91-024 relative to political parties.
On the other hand, the Applicants maintained that both statements of September 1998 and October 1999 included no insults against the government nor incited public outrage. Furthermore, the Applicants alleged that “…the Party was acting as an activist in the national political life and playing its natural and important role in drawing public attention to the facts outlined by the information disseminated by independent organizations, and all of this with due respect for the laws and regulations of the country…” [para. 60].
Consequently, on 25 April 2001, the Institute for Human Rights and Development in Africa, INTERIGHTS, and the Association Mauritanienne des Droits de L’Homme lodged a complaint to the Commission on behalf of Mr. Ahmed Ould Daddah as Secretary-General of the UFD/EN party, arguing that Mauritania had infringed Articles 1, 2, 7(a), 9(2), 10(1), 13, and 14 of The Charter. In May of 2000, the Commission declared the complaint admissible.
As regards the right to freedom of expression, the Applicants complained that the declarations delivered by the UFD/EN leaders during the pre-campaigns for the elections of 2001 were consistent with the Mauritanian Constitution. In the Applicant’s view, political debate constitutes one of the cornerstones of a democratic society; therefore, government and public officials should endure a higher degree of criticism, even if perceived as insulting. However, the Respondent State maintained that the dissolution of the UFD/EN was made on the basis of preserving national security and order. According to the State’s submissions, the “…lack of direction and extremism of this Party was such that the dissolution was not only justified but also necessary in view of the danger that it represented for the State and for social peace” [para. 69].
After taking note of the parties’ submissions, the Commission decided to join the analysis of Articles 9 (Right to Receive Information and Free Expression), 10 (Right to Freedom of Association), and 13 (Right to Participate in Government) of The Charter due to the relationship these Articles share, notably “because the protection of opinions and the right to express them freely constitute one of the objectives of the right of association” [para. 80]. In this respect, the Commission emphasized the need to follow the domestic legal framework on the rights to freedom of expression and association. Nonetheless, the Commission noted that national regulations must conform to the international obligations ratified by the State party to protect the right to freedom of expression.
In this regard, the Commission cited its jurisprudence on Media Rights Agenda and Constitutional Rights Project v Nigeria in which it established that “…the right of States to restrain, through national legislation, the expression of opinions did not mean that national legislation could push aside entirely the right to expression and the right to express one’s opinion. This, in the Commission’s view, would make the protection of this right inoperable” [para. 77]. In conformity with the wording of Article 27 of The Charter, The Commission held that the only legitimate grounds to restrict the right to freedom of expression are (i) the protection of the rights of others, (ii) reasons of national security, (iii) the preservation of morality, and (iv) the public interest. Additionally, the restriction should pass the tests of necessity and proportionality in a democratic society.
In the instant case, the dissolution order aimed at preventing the UFD/EN from hindering national security and public order. Therefore, the Commission concluded that the Respondent State acted in concert with its international obligations. However, the Commission held that the Respondent State failed to evaluate other less restrictive measures prior to dissolving the UFD/EN party. The Commission further stated that “It would appear in fact that if the Respondent State wished to end the verbal ‘drifting’ of the UFD/EN party and to avoid the repetition by this same party of its behavior prohibited by the law, the Respondent State could have used a large number of measures enabling it, since the first escapade of this political party, to contain this ‘grave threat to public order’” [para. 82].
At last, the Commission ruled that the dissolution of the UFD/EN party observed national provisions, particularly the Decree 91-024 of 25 July 1991 relative to political parties. Furthermore, the Commission concurred with the Respondent State allegation that the declarations delivered by the leaders of UFD/EN could have potentially infringed others’ rights and hinder national security. Nonetheless, the Commission noted that the dissolution measure was disproportionate in light of the offenses attributable to the political party’s leaders since other less intrusive measures could have had the same effect. Surprisingly, the Commission held the Respondent State responsible for violating Article 10 of The Charter relative to the right to freedom of association without addressing any responsibility under Article 9 of The Charter. Hence, no violation of the right to freedom of expression was declared by the Commission.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming international standards on the exceptional character of restrictive measures. In this sense, the Commission held that the only legitimate grounds to restrict the right to freedom of expression are (i) the protection of the rights of others, (ii) reasons for national security, (iii) the preservation of morality, and (iv) the protection of the public interest as per Article 27 of The Charter. Likewise, the Commission ruled that restrictive measures must follow the principles of proportionality and necessity in a democratic society. The Commission also referred to the Respondent State’s obligation to assess other less intrusive measures prior to restricting the right to freedom of expression in accordance with the spirit of The Charter. However, after having found that the dissolution of the UFD/EN party was disproportionate in light of the offenses attributable to the party’s leaders, the Commission held the State responsible for infringing the victim’s right to freedom of association without referring to the right to freedom of expression under Article 9 of The Charter.
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