Access to Public Information, Content Regulation / Censorship, Licensing / Media Regulation
Esquivel v. Costa Rican Electricity Institute
Closed Expands Expression
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The Community Court of Justice of the Economic Community of West African States held that a new regulation imposed by the Nigerian Government against a human rights group was tantamount to censorship and violated their freedom of expression. The National Broadcasting Commission had issued a regulation requiring Festus A. O. Ogwuche, as well as all broadcasting houses, to have any proposed live programming vetted by the Commission 48 hours prior to airing on the grounds that some programs were broadcasting content which threatened the peace and unity of the country. The Court examined international and regional human rights instruments to find that the Government of Nigeria failed to establish proof that Ogwuche’s media programs constituted a sufficient threat to justify the restriction and that the restriction, as such, was an excessive burden. Therefore, the Court ordered that the Regulation be withdrawn.
Festus A. O. Ogwuche is a lawyer, broadcaster, and the head of the Crownfield Solicitors, a firm of solicitors that engage in human rights advocacy, advancement of democracy and good governance, and sponsorship of radio and television broadcasts on the aforementioned subjects. The plaintiffs received a letter, dated May 30, 2014, titled “Additional Regulation for Live Political Broadcasts” from the Nigerian Government through the National Broadcasting Commission stating that because some political live programs were airing content that incited violence, was provocative or highly divisive and threatened the peace and unity of the country, the plaintiffs and all Broadcasting Houses must give 48 hours prior notification to the Commission before airing any live political program.
The Commission further threatened “withdrawal of broadcast license, outright closure of broadcast outfits, direct censorship of all broadcast materials and seizure of broadcast equipment of any organization that does not comply with the directives of the said letter.” In response to actions taken by the Government to stop their radio, television, and social media advocacy, the plaintiffs asked the Commission for any specific proof of abuse of transmission program which threatens the peace and unity of the country; the plaintiffs received no response.
The plaintiffs initiated a case at the ECOWAS Community Court of Justice on March 18, 2015. In its Preliminary Objection, the Government of Nigeria argued that the Court did not have jurisdiction because the issues raised in the suit by the plaintiffs are non-justiciable under the Nigerian Constitution of 1999, the National Broadcasting Commission was performing oversight as allowed under Nigerian law, and the suit was frivolous because no human rights violation occurred. This objection was subsequently struck down.
Asante J led the three-man panel, comprised of Asante, Atoki and Costa. The two issues for determination are: (i) Whether the Court has jurisdiction to adjudicate on this case and (ii) Whether there is any violation of the human rights of the plaintiffs to freedom of speech/expression (pg.6).
The plaintiffs argued that they brought the suit to enforce their fundamental rights to freedom of speech/expression and that the Court has jurisdiction over complaints regarding a fundamental human rights violation in any member state by virtue of Article 9(4) and 10 (d) of the 2005 Protocol on the Court.
Article 9 (4) of the 2005 Protocol on the Court as amended states that: “The Court has jurisdiction to determine cases of violations of Human Rights that occur in any Member State.”
While Article 10 (d) of the 2005 Protocol on the Court as amended states:
“Individuals on application for relief for violations of their Human Rights; the submission of application for which shall:
(I) not be anonymous; nor
(ii) be made whilst the same matter has been instituted before another international court for adjudication”
The plaintiffs proceeded to argue that the requirement to notify the National Broadcasting Commission in writing 48 hours before live political broadcast will be aired and the eventual closure of the transmission of their media programs violated their right to freedom of speech. The plaintiffs further relied on Article 19 of the ACHPR to support their claim. Article 19 of African Charter on Human and People’s Rights (ACHPR) states that: “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by Another.”
In submitting that there were violations of their rights to freedom of speech, the plaintiffs alleged that they received a letter from the Nigerian Government via the National Broadcasting Commission that required all political live programs to be submitted 48 hours before broadcast to the Commission in order to avoid divisive, inciting and hateful speech from being transmitted on the plaintiffs’ programme. The plaintiffs however requested proofs of allegation of divisive, inciting and hateful speeches in the plaintiffs’ program from the defendant. The Government did not respond and instead decided to close down the plaintiffs’ media programs in violation of their human rights to freedom of speech.
The plaintiffs argued that the alleged violation of their human right to freedom of speech violated Article 9 of African Charter on Human and People’s Rights (ACHPR) that provide that:
They also cited Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR) which establish that: “Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.” Additionally, the plaintiffs relied on Article 19 of the Universal Declaration of Human Rights (UDHR) which similarly proclaims the protection for freedom of expression. The plaintiffs therefore argued that any interference with the right to freedom of expression and the right to hold free opinions in any media constitutes a violation of human right to freedom of expression.
In determining whether or not it has jurisdiction over the matter, the Court stated that the “mere allegation of Human Rights violation as opposed to the veracity of the claim has been held by the court in decided cases, to be sufficient enough to trigger its jurisdiction to adjudicate on alleged violations of human rights provided for in the African Charter on Human Rights” (pg.8). In establishing this position, it relied on an earlier decision, His Excellency Vice-President Alhaji Samuel Sam-Sumana V. Republic of Sierra Leone.-SUIT NO: ECW/CCJ/APP/38/16 and JUD NO:ECW/CCJ/JUD/19/17 (At page 14 of the judgment) where the Court found that:
Indeed Allegations of violations of Human Rights by an Applicant is sufficient to invoke the jurisdiction of this Court. This is distinct from the issues of the veracity of the allegation.
The Court again went ahead to cite the case of Hissein Habre v. Republic of Senegal; ECW/CCJ/APP/07/08 & ECW/CCJ/03/10, where it found that in determining whether it has jurisdiction, it shall consider:
The Court found that the only condition that can make it impossible for a party to invoke the jurisdiction of the Court is when the case has already been taken up by another competent international court. This position was emphasized in the decision of the Court in El Haji Mame Abdou Gaye v. Republic of Senegal ECW/CCJ/JUD/01/12 at Para 28 and 46. The Court finally held that it was satisfied that the subject matter of the instant case being a human rights violation is “sufficient to activate the jurisdiction of the Court on the matter” (pg.9).
On the issue of whether there is a violation of the rights of the plaintiffs to freedom of expression, the Court examined international and regional human rights instruments which provide for the right to freedom of expression. Freedom of expression is protected under Article 9 of the African Charter on Human and Peoples’ Rights, Article 19 of the International Covenant on Civil and Political Rights and Article 19 of the Universal Declaration on Human Rights. The Court cited its decisions in cases involving freedom of expression, significant among them the recent case of Federation of African Journalists (FAJ) & others v. The Gambia (Judgment No: ECW/CCJ/JUD/04/18) where the applicants appealed to the court based on breach of free expression. The Court held that:
“Having critically examined the criminal laws of The Gambia, the Court declares that the criminal sanctions imposed on the applicants are disproportionate and not necessary in a democratic society where freedom of speech is a guaranteed right under the international provisions cited.’’ The Court went on: “It is our view that the impugned provisions cast excessive burden upon the applicants in particular and all those who would exercise their right of free speech and violates the enshrined rights to freedom of speech and expression under Article 9 of the African Charter, Article 19 of the ICCPR and Article 19 of UNDHR.”
The Court found that the letter of “Additional Regulations” from the defendant directing the plaintiffs to submit their Political Live programs for vetting 48 hours before broadcast every time cast excessive burden upon the plaintiffs and violated their right to free speech and expression. In emphasizing and establishing the extent of violation of the plaintiffs’ right to freedom of speech and expression, the court cited the case of Deyda Hydara JR. and Anor v. The Gambia (Suit No: ECW/CCJ/APP/30/11 Judgment No: ECW/CCJ/JUD/17/14) where it held that:
“These provisions, guarantee the right to life and also freedom of expression… A State also will be in breach of international law and treaty obligations, if it fails to protect media practitioners including those critical of the regime. For freedom of expression also includes the freedom to criticize the government and its functionaries, subject to limitations imposed by the domestic laws.”
The Court however noted that freedom of expression may be restricted but must be in accordance with established parameters. These parameters are contained in Article 19 (3) of the ICCPR which provides that:
The court further observed that Article II of the Declaration of Principles on Freedom of Expression in Africa ( 32nd Session, 17-23 October, 2002) Banjul, The Gambia, Article II also makes such a limiting provision:
The Government of Nigeria indeed failed to establish proof that the plaintiffs’ media programs constituted a threat necessary to justify the internationally recognized cases in which freedom of expression may be restricted.
Ultimately, the Court declared it had jurisdiction to hear the matter which was premised on an alleged violation of human rights. Having found that it had jurisdiction, the Court decided that the freedom of speech of the plaintiffs has been violated by the Nigerian Government and granted the declarations sought by the plaintiffs in paragraphs 23, 24, 25, 27 and 28 of their originating process and in the judgment. The court further ordered that the said Commission’s letter titled “Additional Regulation for Live Political Broadcasts” dated May 30, 2014, be withdrawn and restrained the Government from further violations of the plaintiffs’ human rights to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands Freedom of Expression as it found that that the State authorities request for prior notification 48 hours before airing a live political programme imposes an excessive burden on broadcasters and violated their freedom of expression. This decision also maintains that the burden of proof for restricting free expression of the media rests with the government rather than the broadcaster, firmly establishes this Court’s jurisdiction over cases of free expression, and recognizes the legal authority of ACHPR interpretations authored by the African Commission on Human and People’s Rights. Similarly, the Court’s decision to draw upon the ICCPR and the UDHR in its reasoning further strengthens the the authority of international human rights instruments in the regional court’s thinking.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
See also Judgment: ECW/CCJ/JUD/17/14
See also Suit: ECW/CCJ/APP/38/16
See also Suit: ECW/CCJ/APP/07/08
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