Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
Closed Expands Expression
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The Human Rights Committee (HRC) found that the Government of Cameroon had violated, among other rights, the right to freedom of expression of Albert Mukong, a writer, journalist and opponent of the country’s one-party system. Mukong was arrested and detained in inhumane conditions, once after criticizing the Government and President of Cameroon and again for meeting to discuss the introduction of multi-party democracy; the State denied Mukong’s allegations of wrongdoing, declaring that its actions were a necessary safeguard to national unity as allowed under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The HRC rejected this defense and furthermore reasoned that protecting and strengthening national unity cannot be achieved by muzzling advocacy for multi-party democracy and human rights.
Albert Mukong was a journalist and outspoken longtime opponent of a one-party system in Cameroon. In 1988, he was arrested after giving a BBC interview in which he criticized Cameroon’s government and President. He was subjected to what he described as cruel and inhuman treatment during his detention. He was held in a small cell, without sanitary facilities and access to food until friends and family located him. He was released in May 1989. In 1990, he held a meeting to discuss different ways to introduce multi-party democracy in Cameroon. Following this he was rearrested, and during this detention he was subjected to intimidation and mental torture. His captors threatened to shoot him should any unrest arise among the population. He was charged and convicted of “intoxication of international and national opinion”.
Before the HRC, Mukong argued that he had twice applied to the High Court of Cameroon for writs of habeas corpus but that his pleas had been rejected on the grounds that the case was before a military tribunal, where the writ of habeas corpus did not apply. Further, he could not bring a civil claim for cruel, inhumane and degrading treatment because under Cameroonian law, a Military Tribunal cannot entertain a civil action separately from a criminal action it has been declared competent to preside over. Only the Minister of Defense or the examining magistrate can seize the military tribunal with a civil action not civilians. Therefore, Mukong argued that there were no remedies available to him domestically.
Mukong complained of violations of Article 7 ICCPR (freedom from cruel, inhuman or degrading treatment or punishment), Article 9 ICCPR (the right to liberty and security of person), Article 12 ICCPR (freedom from arbitrary deprivation of the right to enter one’s own country), and Article 14 ICCPR (equality before the law). He further complained that because his arrest and detention were linked to his activities as an advocate of multiparty democracy, his right to freedom of expression had been violated.
The State argued that Mukong was never subjected to torture or cruel, inhuman and degrading treatment, and that he had not exhausted his remedies. The State denied that it had violated Articles 7, 9, or 12 and argued that his arrest had been necessary to safeguard national security, as allowed under Article 19(3) ICCPR. The State contended that the exercise of the right to freedom of expression must take into account the prevailing political context and that since Cameroon’s independence and reunification, there has been a constant struggle to strengthen national unity.
With regard to the alleged inhuman treatment, the HRC held that it was incumbent upon the State party to refute the allegations in detail. Mukong had provided detailed information about the treatment he had been subjected to and failing evidence to the contrary, the Committee found that this constituted cruel, inhuman and degrading treatment in violation of Article 7 ICCPR.
With regard to the alleged violation of the right to freedom of expression, the HRC explained that any restrictions on this right must be provided for by law, pursue a legitimate aim (such as safeguarding national security or public order) and be strictly necessary to achieve this legitimate purpose. Examining the State’s arguments against these criteria, the HRC found that an unsubstantiated need to safeguard an alleged vulnerable state of national unity could not justify subjecting individuals to arrest, detention and inhuman treatment. Furthermore, the HRC held that “the legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights”. The Committee concluded that there had been a violation of Article 19 ICCPR.
The HRC also found on careful examination of the evidence and material before it that Mukong’s right to a fair trial had not been violated. In respect of Article 9 the Committee noted that the material and evidence before it was not sufficient to make a finding , and with regard to Article 12 the Committee found Mukong had not been forced into exile by the State party’s authorities.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision establishes that advocacy for multi-party democracy cannot be muzzled in the name of national unity.
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.
Although not strictly binding, decisions of the United Nations Human Rights Committee establish an authoritative interpretation of the International Covenant on Civil and Political Rights, which is a binding treaty.
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