Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The African Commission on Human and People’s Rights (ACmHPR) declared that the deportation of an American journalist living and working in Zimbabwe following the publication of alleged falsehoods was an infringement of article 9 of the African Charter on Human and People’s Rights (ACHPR) and recommended that Zimbabwe rescind the deportation order and enable the journalist to return and practice journalism in Zimbabwe. The High Court in Zimbabwe had acquitted the journalist of any criminal offences, and the law under which he had initially been charged was declared unconstitutional by the Supreme Court. The Commission reasoned that Zimbabwe had resorted to deportation to silence the journalist following publication of an article that the State did not appreciate and despite a court order that the journalist could stay. In these circumstances and although the journalist was not prevented from expressing himself wherever he was deported to, in respect of his status in Zimbabwe, which is a State Party to the African Charter, his ability to express himself as guaranteed under article 9 was violated.
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
Andrew Meldrum, an American national, lived as a permanent resident and worked as a journalist in Zimbabwe from 1980 until 2005. On May 7, 2002 he published an article in the Daily News (a newspaper that was later closed by the Zimbabwean state). The article was also carried in the online version of the Guardian in the U.K., and appeared to have been a report on the killing of a woman by supporters of the ruling party.
He was charged with contravening section 80(1)(b) of the Access to Information and Protection of Privacy Act (AIPPA) which criminalizes the publication of falsehoods and was acquitted in the High Court. However, Meldrum was then issued with a deportation notice under the Immigration Act. He filed two separate but parallel challenges: he appealed the deportation to the Minister of Home Affairs; and filed an application in the High Court challenging the issuance of the deportation order. In July 2002 the High Court ruled that the deportation be stayed until the Supreme Court had determined the issues raised by Meldrum as to the Constitutionality of the AIPPA. On May 7, 2003 section 80(1)(b) of the AIPPA was declared unconstitutional by the Supreme Court in the case of Mudiwa v. S (paras. 3-4).
Despite the High Court’s order, on May 16, 2003 Meldrum was summoned to the Immigration Department, informed that it had a deportation order against him and was deported. He was also told that he had not received accreditation to practice as a journalist and so was not permitted to work. Meldrum had alerted his lawyers before his flight left, and they had filed an urgent application before the High Court which ordered that Meldrum be released and not be deported. Although the immigration officials were given these court orders they went ahead with the deportation.
Meldrum, through Zimbabwe Lawyers for Human Rights (ZLHR), then approached the African Commission on Human and People’s Rights seeking a declaration that Zimbabwe had violated various rights under the ACHPR – including article 9 which protects the right to freedom of expression (para. 7).
The key issue for determination by the African Commission was whether Zimbabwe’s conduct was inconsistent with the ACHPR.
ZLHR argued before the African Commission that “the deportation of Mr. Meldrum deprived him of his rights, as well as denying the general citizenry their rights to receive information”. In addition, ZLHR argued that Meldrum had not been found guilty of any offence in Zimbabwe and, in any event, the law under which Meldrum had been charged had been declared unconstitutional a week before Meldrum was deported. This meant that “the only way for the Respondent State to deter Mr. Meldrum from the free practice of his profession was to physically censor him through an arbitrary act of deportation”. They argued that “the free practice of the profession of journalism and freedom of expression ought to be interpreted to include freedom to impart and receive information” (paras. 70-71).
ZLHR provided an analysis of the limitations to the right, and accepted that the right to freedom of expression is not absolute but can be limited when the requirements set out in article 27(2) of the Charter are met. ZLHR referred to the tests of necessity, proportionality and achievement of a legitimate objective that had been used in international law and urged the Commission to apply the same tests to the present communication (para. 80.). It said that “the act of restriction of a right must not be arbitrary, unfair or based on irrational considerations, but must be rationally connected to the objective, and should not impair the right or freedom in question more than is necessary to accomplish a given objective or a pressing social need” (para. 75)
Zimbabwe accepted that the right to freedom of expression was protected under both the Zimbabwe Constitution and the African Charter but that “it would be inappropriate for the victim to seek to enforce that right by way of publishing falsehoods” (para. 85).
The ACmHPR succinctly held that as Meldrum’s deportation “arose from the publication of an article that the Respondent State did not appreciate”, it followed that “his ability to express himself as guaranteed under article 9 was violated” (para. 112). The African Commission recommended that Zimbabwe rescind the deportation order and permit Meldrum to return to Zimbabwe as a permanent resident and that Meldrum be accredited as a journalist in accordance with the law to allow him to practice journalism in the country (para. 121).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The African Commission on Human and People’s Rights confirmed that a state cannot deport a non-national journalist simply because the journalist had written an article the state did not approve of.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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