Regional Perspectives on Media & Freedom of

Information Laws in Africa

By Edet Ojo Executive Director

Media Rights Agenda, Lagos

Focus of Presentation

This presentation focuses on 2 ongoing regional initiatives:

• An initiative aimed at defending & protecting FoE/Media Freedom in Africa

• An initiative aimed at advancing the adoption & effective implementation of FOI laws in Africa

State of Media Laws in Africa• In most African countries, the laws do not

adequately protect/guarantee FoE. • Most countries continue to use repressive laws to

restrict FoE & journalistism practice• About 48 out of Africa’s 53 countries have such

laws in one form or another. • Only Ghana, Kenya, Mozambique, South Africa &

Togo appear to be free of such laws. • Only a few have taken deliberate steps to

decriminalize media laws, e.g. Togo & Ghana

Forms of Obnoxious Media LawsThe various forms & manifestations of repressive media laws include:

• Criminal libel & criminal defamation laws

• Sedition/seditious libel laws

• Laws on false (news) publications

• Laws on incitement

• Insult laws, which make it a criminal offence to “insult” the head of state or other government officials

Forms of Obnoxious Media Laws• Laws which punish the publication or disclosure of

information even when such information are not legitimately classified

• Other laws which criminalize various forms of journalistic content & activities

• Laws which mandate the compulsory licensing of journalists by government authorities before they can practice

• Laws that empower government bodies or authorities to withdraw licenses to practice or expel journalists from the profession

Forms of Obnoxious Media Laws• Laws which require annual licensing of

newspapers & news magazines (with discretionary powers given to a government body to withdraw such licenses)

• Laws which allow government officials to proscribe or shut down media houses/facilities

• Laws which allow security agents to seize copies of publications or confiscate other journalistic materials, etc.

NAFEO• At the GM of the International Freedom of

Expression Exchange (IFEX) held in Baku (Azerbaijan) in June 2004, African members decided to strengthen their collaboration in addressing these issues, among others.

• They agreed to organize a meeting of African FoE organizations (both IFEX & non-IFEX members) to develop strategies for collaboration for more effective defence of FoE on the continent.

NAFEO• A conference of African FoE organizations

was later held in October, 2005, jointly organized by 4 groups – MFWA, MISA, MRA & JED.

• The conference, held in Accra, brought together 42 participants from national, regional, & international FoE organizations.

• At the end of the conference, the participants formed the Network of African Freedom of Expression Organizations (NAFEO).

NAFEO• The Network seeks to strengthen collaboration,

cooperation, solidarity & joint action to improve the environment for FoE in Africa.

• In June 2006, a planning meeting was held in Lagos, hosted by MRA, to set up systems for the practical functioning & operation of NAFEO.

• The meeting agreed on a structure to promote collaboration, ensure coordination in areas of common action, & develop strategies for addressing key issues affecting FoE in Africa.

NAFEO• NAFEO has identified 6 countries which

constitute the “hot spots” of extreme violations of media freedom & FoE in Africa, namely: The Gambia, Ethiopia, Eritrea, Zimbabwe, Tunisia, & Swaziland.

• NAFEO’s Secretariat is hosted by MFWA & has a full-time Coordinator.

• It has also developed at elaborate plan of action for engaging FoE issues over the coming years

Challenge of Legal Protection for FoE• A major challenge for NAFEO is how to strengthen

the legal protection of FoE in Africa• The main instrument to protect FoE in Africa is the

AChHPR, adopted by Heads of State of the OAU on June 26, 1981, Article 9 of which guarantees FoE in the following terms:

1. Every individual shall have the right to receive information

2. Every individual shall have the right to express and disseminate his opinions within the law.

Challenge of Legal Protection for FoE• CSOs have argued that Article 9 does not

adequately protect FoE

• Following a strong civil society lobby, the AComHPR adopted the Declaration of Principles on FoE in Africa in 2002

• The Declaration elaborated on the right to FoE guaranteed by Article 9 of the AChHPR in an effort to strengthen it.

• It also provided clearer benchmarks on FoE.

Challenge of Legal Protection for FoE• The AComHPR has also established a

monitoring mechanism for FoE in Africa in the form of a Special Rapporteur on FoE in Africa.

• At its 38th Ordinary Session held in Banjul in 2005, the Commission designated Ms Pansy Tlakula (of South Africa) as “Special Rapporteur on Freedom of Expression in Africa”.

Mandate of Special RapporteurThe mandate of the Special Rapporteur include to:

• Analyze national media legislation, policies & practice within Member States, monitor their compliance with FoE standards in general & the Declaration of Principles on Freedom of Expression in particular, & advise Member States accordingly.

Mandate of Special Rapporteur• Undertake investigative missions to Member

States where reports of massive violations of the right to FoE are made & make appropriate recommendations to the AComHPR

• Undertake country missions & any other promotional activity that would strengthen the full enjoyment of the right to FoE in Africa

• Make public interventions where violations of the right to FoE have been brought to his/her attention. - This could be in the form of issuing public

statements, press releases, urgent appeals.

Mandate of Special Rapporteur

• Keep a proper record of violations of the right to FoE & publish this in his/her reports submitted to the AComHPR; and

• Submit reports at each Ordinary Session of the AComHPR on the status of the enjoyment of the right to FoE in Africa.

Special Rapporteur Mechanism• The SR presents a very important mechanism for

improving the state of FoE in Africa.• But the mechanism is rarely used, especially by

media professionals & media professional bodies or journalists associations.

• NAFEO has taken a strategic decision to strengthen & work with the SR

• It is in the enlightened self-interest of the media community to engage the SR & assist her to become more effective

Special Rapporteur Mechanism• Ms Pansy Tlakula, the current Special Rapporteur

is also the Chief Electoral Officer of South Africa.• Her contact details are:

Ms Pansy Tlakula

P. O. Box 7943

Pretoria, 0001, South Africa.

Tel. +27 12 428-5516

Fax. +27 12 428-5592

Email: tlakulap@elections.org.za

Regional Treaty/Protocol on FoE• Despite the Declaration & the creation of the

SR mechanism, concerns remain that the legal protection of FoE in Africa is weak.

• A major argument is that the Declaration is merely a statement of principles & not legally enforceable

• NAFEO & its member organizations are therefore engaged in a campaign to encourage the AU to adopt a Treaty or Protocol on FoE in Africa.

Regional Treaty/Protocol on FoE• The Treaty/Protocol will set common

minimum standards for the protection of FoE & media freedom for African countries

• It will be legally binding on all African countries/state parties (depending on whether it is a protocol or a treaty)

• It will have enforcement mechanisms, including through the African Court & the sub-regional courts

Freedom of Information• The mandate of the Special Rapporteur

was recently expanded to cover FOI

• She is now Special Rapporteur on Freedom of Expression & Information in Africa

• This is of critical importance given that Africa is lagging behind in the global movement towards the adoption of Freedom of Information Laws

State of FOI Laws in AfricaCurrently, only a handful of countries in Africa have FOI laws:

• South Africa (Promotion of Access to Information Act, 2000) & Uganda (Access to Information Act, 2005) have adopted FOI laws, although Uganda continues to face the challenges of implementation

• Zimbabwe (Access to Information & Protection of Privacy Act, 2002) & Angola (Access to Administrative Documents Act, 2005) have also adopted laws which lay claims to being FOI laws, but which do not meet the standards for FOI laws.

State of FOI Laws in Africa• While East and southern Africa have made

some progress, the situation is disheartening in West, Central & North Africa

• No single francophone country in the region has a law or has made any appreciable progress towards adoption

Initiating an FOI Movement in Africa• This situation informed a 2-day regional workshop

on FOI in Africa held in Lagos is Sept. 2006 by MRA & OSJI.

• It was attended by representatives of 30 CSOs from 16 countries

• The workshop adopted the “Lagos Declaration on the Right of Access to Information” with a resolution to establish a regional Freedom of Information Centre in Africa

• The main rationale for the Centre is to create a platform for cooperation & collaborative activities among CSOs in the region.

FOI Country Initiatives in AfricaAt the moment, there are a number of draft FOI laws in different stages of progress in various African countries, including:

• Ghana (draft Right to Information Bill 2003)

• Kenya (Freedom of Information Bill 2005)

• Liberia (draft Freedom of Information Bill 2007)

• Malawi (draft Access to Information Bill 2004)

FOI Country Initiatives in Africa• Mozambique (draft Right to Information Bill

2005)

• Nigeria (Freedom of Information Bill 1999, 2003, 2004 & 2005, 2007)

• Sierra Leone (draft Freedom of Information Bill 2006

• Tanzania (draft Right to Information Bill 2006)

• Zambia (draft Freedom of Information Bill)

Other Countries Discussing FOIFOI is also in various stages of discussion, although no drafts are under consideration in:

• Benin Republic• Bostwana• Burkina Faso• Ethiopia• Lesotho• Mali• Namibia• Senegal

Consensus at Lagos Workshop

There was consensus at the workshop on a number of issues, including:

• There is a huge deficit in collaborative activities among CSOs in the region on FOI

• There is too much dependence on non-African frameworks which though useful & important, frequently lack proper appreciation of the context

Consensus at Lagos Workshop• Relevant expertise in the region in the areas

of drafting, advocacy, monitoring, implementation & litigation that are not being sufficiently tapped & utilized

• Much of the relevant experience garnered by CSOs in the region has not been sufficiently documented & shared

• CSOs in the region working on FOI issues need to upscale networking & collaboration within the region

What are the Needs?It was also observed that many organizations in the region working on FOI issues require assistance:

• With drafting good FOI Laws• With reviewing or analyzing their draft FOI Laws• With developing context-specific advocacy

strategies• With developing monitoring mechanisms• With developing implementation strategies• With developing litigation strategies

What are the Needs?• They also need a platform to share ideas,

experiences & best practices on FOI advocacy, monitoring, implementation & litigation

• They require a framework to initiate & coordinate joint advocacy campaigns, especially at regional levels (e.g. for appropriate regional instruments)

• They require a framework for mobilizing regional & sub-regional solidarity in specific country situations

AFICThe Africa Freedom of Information Centre was therefore established to meet these needs, in the hope that it can serve as:

• The engine room for a regional network or coalition around FOI

• A platform for coordinating the sharing of ideas, experiences & best practices on FOI advocacy, monitoring & implementation

• A platform for mobilizing solidarity across the region for a specific country situation.

AFIC

• A vehicle for launching joint regional campaigns & advocacy

• A source of advice, support & assistance to CSOs involved in any stage of FOI work

• A framework for the provision of effective technical assistance in drafting FOI laws, developing context-specific advocacy campaigns & developing monitoring & implementation strategies

AFIC• The Centre is registered under Nigerian

laws under the Africa Freedom of Information Trust

• It is hosted by Media Rights Agenda in Lagos, with a full-time coordinator

• It currently has an 8-member Steering Committee, with representatives from all the sub-regions, except North Africa which is not yet represented

Conclusion• Tanzanian groups are not yet involved in any of

these initiatives, despite their relevance to the present circumstances in Tanzania.

• There is no Tanzania member in NAFEO (But IFJ Africa Office/MISA are actively involved)

• There is also no Tanzania member in AFIC (But IFJ Africa Office/MISA are actively involved)

• Tanzanian groups & media professionals need engage these initiatives to contribute to the regional efforts, to learn from others & to share their experiences