Case Summary and Outcome

The African Commission on Human and Peoples’ Rights (“ACmHPR” or “the Commission”) held that Eritrea violated Article 9(2) of the African Charter on Human and Peoples’ Rights (“the Charter”) relating to the right to express and disseminate opinions within the law. The case concerned the illegal detention of eleven former government officials who were openly critical of the Eritrean Government. In this case, the ACmHPR found that the State indeed interfered with the victims’ right to freedom of expression and that such restriction did not comply with the Charter nor other relevant international human rights standards. In particular, the Commission noted that no charges were brought against the victims, nor had they appeared before the courts. In addition to freedom of expression, the Court held that Eritrea violated the right to freedom from discrimination, the right to personal liberty and protection from arbitrary arrest, as well as the right to a fair trial under Articles 2, 6, and 7(1), respectively.

Facts

The present case was presented by Dr. Liesbeth Zegveld and Mr. Mussie Ephrem on behalf of Petros Solomon, Ogbe Abraha, Haile Woldetensae, Mahmoud Ahmed Sheriffo, Berhane Ghebre Eghzabiher, Astier Feshation, Saleh Kekya, Hamid Himid, Estifanos Seyoum, Germano Nati and Beraki Ghebre Selassio. These eleven victims were among a group of fifteen senior government officials who were openly critical of the Eritrean government policies. In May 2001, they sent an open letter to the members of the ruling party, the People’s Front for Democracy and Justice (PFDJ), in which they criticized “the government for acting in an ‘illegal and unconstitutional’ manner” and called on “all PFDJ members and Eritrean people in general to express their opinion through legal and democratic means and to give their support to the goals and principles they consider just” [para. 2].

Right after the senior officials wrote the open letter, the government announced that they had been detained “because of crimes against the nation’s security and sovereignty” [para. 3]. At the date of submission of the communication, their whereabouts were unknown despite the Complainants habeas corpus request, which was presented to the Minister of Justice of Eritrea without any response from the authorities. The Complainants could not file a habeas corpus request to the courts since it would require knowing the place of detention. The Complainants submitted that the 11 detainees had no access to lawyers, their families or adequate medical care. Similarly, they contend that these detainees “could be prisoners of conscience, detained solely for the peaceful expression of their political opinions” [para. 3].

On 9 April 2002, the complainants submitted the communication to the Secretariat of the African Commission together with a request for provisional measures. In 2003, the Commission declared the communication admissible at its 33^rd Ordinary Session in Niamey, Niger.

Decision Overview

In relation to freedom of expression in this case, the ACmHPR had to decide whether the secret and incommunicado detention of the 11 senior officials of the government of Eritrea violated Article 9 of the Charter. In that sense, the Complainant argued that their arrest and detention were motivated solely by their political convictions expressed through their critical opinions against the government. With regards to the detention, the Respondent State simply claimed that “their detention is in ‘consonance with the existing criminal code… and other relevant national and international instruments’” without referring to specific provisions justifying their arrest [para. 57].

The ACmHPR reaffirmed that any law restricting the right to freedom of expression must be compatible with the Charter and international human rights standards. It recalled that contrary to other international human rights instruments, the Charter does admit derogations in special circumstances or emergency situations. Therefore, restrictions to freedom of expression “have to be provided by the law” as categorically stated in Principle II (2) of the Declaration of Principles in Freedom of Expression in Africa. However, even when “a person expresses or disseminates opinions that are contrary to laws that meet the aforementioned criteria, there should be due process and all affected persons should be allowed to seek redress in a court of law” [para. 61].  In that sense, the Commission noted that in this case, no charges were brought against the detainee, and they have not been presented before the courts. Consequently, it found that the State indeed interfered with the victims’ right to freedom of expression and that such restriction did not comply with the Charter nor other relevant international human rights standards. In that sense, the Commission held that the State of Eritrea violated article 9(2) of the Charter. In addition, the ACmHPR held that Eritrea violated the right to freedom from discrimination, the right to personal liberty, and protection from arbitrary arrest, as well as the right to a fair trial under Articles 2, 6 and 7(1), respectively.