West Africa: Free expression and law in 2011

In this brief, ARTICLE 19 outlines the major legal developments relating to freedom of expression and information in West and Central African countries in 2011. These include new:

• laws
• regulations
• policies
• jurisprudence.

Overview

There were signs of both positive and negative trends across the region in 2011.

Positive trends

• Mauritania adopted a new law removing custodial sentences for press offences.
• Mauritania also showed signs of moving towards a more liberalised broadcasting market.
• An increasing number of West African states seem set to adopt Freedom of Information laws. Nigeria is leading the way with the adoption of a Freedom of Information Act in June.
• There is also a noticeable trend towards the adoption of new Information and Communication Technology laws, which  generally aim at providing universal access to the internet in West Africa.
• In October 2011, the Contracting Parties of the Economic Community Of West African States (ECOWAS) adopted a Supplementary Act on a Uniform Framework on Freedom of Expression and Freedom of Information in West Africa. The Act provides strong safeguards for the protection of freedom of expression in West Africa, notably by decriminalising press offences such as: criminal defamation, insult laws, sedition laws, false news laws.
• In December 2011, a conference of stakeholders from West Africa adopted the Bamako Declaration and its Strategic Framework on Impunity, Justice and Human Rights. The stakeholders included a wide variety of people from the sub-region. As well as Ministers of Justice, there were also representatives from: Supreme Courts. Truth and Reconciliation Commissions, sub-regional and regional organisations, political missions and agencies, civil society. The resulting Declaration and Strategic Framework provide concrete and innovative recommendations for preventing conflicts by strengthening good governance and the rule of law.
• In April 2011, the African Commission on Human and Peoples' Rights adopted the Resolution on the Safety of Journalists and Media Practitioners in Africa.[1] The Resolution calls on states that are party to the African Charter and other concerned authorities to: fulfil their obligation to prevent and investigate all crimes allegedly committed against journalists and media practitioners; and bring the perpetrators to justice.

Negative trends

•  Decriminalisation of press offences is still relatively rare in West African countries.
• The Information and Communication Technology laws or bills currently being debated in some West African countries tend to grant extensive powers to regulate the internet and broadcasting.
• Togo adopted a restrictive law on the exercise of freedom of assembly.

Regulation of the Media

Senegal In 2011, a new draft media law was discussed in the Senegalese Parliament. It has been drafted:

• to meet the challenges of new media
• to place such limits on press freedom as are "necessary to ensure the protection, in a democratic regime, of the citizen, the public and institutions".

It removes custodial sentences for a number of press offences. It also proposes a new definition of the term 'journalist'. emphasising training and qualification.

Guinea  In 2010, Guinea was hailed for the adoption of three pieces of progressive media legislation:

• Law L/2010/002/CNT of 6 May 2010, which decriminalised a number of media offences
• Law L/2010/03/CNT of 21 May 2010, which established the High Communication Authority
• A new freedom of information law, adopted in December 2010.

However, none of these laws have been published in the official Gazette or implemented.

Guinea-Bissau and Mauritania Both countries set out to adopt broadcasting reforms but the proposed laws have not been adopted.

Ivory Coast In May 2011, the Haute Autorite de la Communication Audiovisuelle (HACA) replaced the Conseil National de la Communication Audivisuelle (CNCA), with a view to liberalising the broadcasting sector. Contrary to international standards of freedom of expression, however, it appears that the president of the HACA was nominated by the president of the Ivory Coast, putting in doubt the impartiality of the new broadcasting regulator.

Information and Communication Technologies

Cameroon Following the adoption of two laws on cybercrime (the Law N 2010/012 Governing the Cyber-security and Cyber-criminality),  and electronic communications (Law No. 2010/013 Governing Electronic Communications) in 2010, the Government has undertook more restrictive approach for regulating of the internet. These laws include measures, such as the immediate identification of internet users, which violate users' privacy and are in violation of international standards. 

Ghana Four information and communication technology (lCT) bills are currently pending  review by the Cabinet:

•  the National Information Technology Agency Bill (NITA)
• the Electronic Transaction Bill
• the New Telecommunication Bill
• the NCA Amendment Bill./li>

The new Telecommunication Bill, in particular, provides for the regulation of electronic communications and broadcasting. 

Mauritania In June 2011, the newspaper El Badil Al Thalith's website was blocked as a result of pressure put on the hosting company by the UAE authorities. The website, which is hosted by an Emirati company, published a series of articles criticising Arab leaders before being blocked both inside and outside Mauritania. 

Nigeria A Copyright (Amendment) Bill was drafted in 2011 and submitted to the Nigerian Parliament. The purpose of the Bill is to provide technological ways of protecting copyright. Under the bill, internet Service Providers (ISPs) are required to adopt and reasonably implement a policy allowing for the termination of the account of 'repeat' copyright infringers. In October, the Acctiton Congress of Nigeria (CAN) urged the National Assembly not to pass a controversial bill that would authorise e-surveillance of telephone calls by the security agencies. The bill was an attempt to monitor the growing insecurity in the country.

Senegal In February 2011, Parliament adopted a new Law on Telecommunications. The law deals mainly with the technical aspects of telecommunications, such as technological neutrality. Content-related issues fall outside the scope of the law.

Togo In March, the government held a workshop on a draft law on electronic communications. 

Defamation

Mauritania  In June 2011, the Ministerial Council of Mauritania passed a law decriminalising a number of press offences and liberalising the broadcasting market. Under the new law, imprisonment is no longer an option for press offences. However, the media can still be subject to fines and offences of treason have not been abolished.

Elections Restrictions

Benin On 1 March 2011, the African Commission on Human and Peoples' Rights adopted Resolution ACHPR/RES.183 (EXT.OS/IX) 2011. This resolution expressed the Commission's concerns about the electoral process taking place in Benin this year. Despite this, the High Authority for Audiovisual and Communication adopted very strict reporting restrictions during the electoral period between March and April 2011. Decision no. 11-019/HAAC of 28 March 2011 prohibited any form of expression that:

• could incite to religious, tribal or racial hatred
• would endanger national cohesion
• would tarnish the image of - or undermine - political parties, candidates or lists of candidates.

Niger On 12 January 2011 the National Monitoring Communication Monitoring Centre (ONC) issued two resolutions on election reporting, resolutions 002/2011 and 003/2011. These resolutions established how the messages of candidates and political parties should be produced, programmed and disseminated. The resolutions have been welcomed as contributing positively to the quality of election reporting.

Freedom of Information

Ghana In 2011, the Government finalizsd the Right to Information Bill that is currently pending in the Parliament. This Bill came with a number of commendable provisions including: 

• the right to information being extended to every person irrespective of purpose 
• the inclusion of a public interest override.  

However, the Bill has still not been passed into law. ARTICLE 19 also notes the limitations of the current draft, which include:

• long time-limits 
• unclear and broad exception clauses 
• a lack of independent control over its implementation 
• only applying to public bodies, which is contrary to international standards.  

Guinea A new freedom of information law was adopted in December 2010. However, it has yet to be implemented.

Mali The Malian government committed to the adoption of a strong Access to Information law in July 2011. However, no information is available on how this commitment has been implemented in practice and what stage the drafting process has reached.

Nigeria  In June 211, Nigerian president Goodluck Jonathan signed the Freedom of Information Act into law. The law is the culmination of an 11-year struggle and makes Nigeria the second country in the region with a dedicated Freedom of Information law. ARTICLE 19 has welcomed the law as a 'good starting point', highlighting that the law:

•  gives a broad right of access to information held by public institutions
• lays down clear procedures to follow in order to obtain information.

Niger On 23 February 2011, the Council of Ministers of Niger adopted an Ordinance on Access to Information. The ordinance seems to have been well received as a positive step towards greater transparency and democratic accountability in the country.

Senegal and Sierra Leone Pressure has been mounting for parliaments to adopt freedom of information laws in both countries, with their governments making promises to make reforms. Unfortunately, the laws have not been adopted in 2011.

Freedom of Association and Assembly

Togo  In May, the Togolese National Assembly adopted a new Law on the Exercise of Freedom of Assembly and Freedom to Demonstrate on the Public Hightway or in Public Places. Under the law: 

• marches cannot take place before 06:00 
• marches must stop after 22:00 
• prior notification must be given in advance to the relevant authorities.  

The new law has been heavily criticised by both political parties and civil society.  

[1] ACHPR/Res.178 (XLIX) 2011