Case Summary and Outcome

The African Commission on Human and Peoples’ Rights (ACmHPR) held that the Government of the Gambia, by failing to provide any defense to the allegations concerning the arrest, detention, expulsion, and intimidation of journalists for articles they had published, thus deprived journalists of their right to disseminate opinions and violated the right of the public to information. The former head of state of the Gambia applied to the ACmHPR alleging that the military government which unseated him violated, among other things, the right to receive information, freedom of expression, and freedom of assembly and association.

This case analysis was contributed by ARTICLE 19

Facts

The complainant’s government was overthrown in a military coup in July 1994. Since then, according to the complainant, the incumbent military government had violated the African Charter of Human and Peoples’ Rights by, inter alia, abolishing the Gambian Constitution’s Bill of Rights, banning political parties and ministers of the former civilian government, killing soldiers affiliated with the civilian government, and arresting journalists without cause and detaining them without trial. The allegations implicated several Articles of the African Charter of Human and Peoples’ Rights. The arrest and detention of journalists implicated Article 9 of the Charter, protecting the right to freedom of expression.

Decision Overview

Regarding The Gambia’s violations of the Charter, the Commission noted that when a State claims in its defense that it acted in accordance with previously laid down domestic law, such laws should not override constitutional or international human rights standards; they must be consistent with the state’s obligations under the Charter:

“[There exists] a general principle … that “competent authorities should not enact provisions which limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution or international human rights standards”. This principle … applies … to all … rights and freedoms. For a State to avail itself of this plea, it must show that such a law is consistent with its obligations under the Charter.” [para. 59]

With respect to Article 9, the Commission concluded that the arrest, detention, expulsion, and intimidation of journalists for articles they published deprived journalists of their right to disseminate opinions as well of the public of their right to information. The government provided no defense to the allegations and the Commission concluded there was a clear violation of the right to freedom of expression.

The Commission emphasized that “the intimidation and arrest or detention of journalists for articles published and questions asked deprives not only the journalists of their rights to freely express and disseminate their opinions, but also the public, of the right to information” [para. 65].