Somalia: Provisional Constitution a positive step towards realising right to freedom of expression and information, but challenges remain

ARTICLE 19 welcomes the adoption of the Provisional Constitution for Somalia as a significant step in the country's transition towards democracy, and an important landmark for embedding protections for the rights to freedom of expression and information in the country. However, deficiencies in these protections threaten to undermine the ability of new federal institutions to properly safeguard these rights. Full public participation and transparency must define processes for enhancing protections for these rights in the Constitution going forwards. 

On 1 August 2012, the National Constituent Assembly for Somalia overwhelmingly voted in favour of adopting the Provisional Constitution for Somalia. The Constitution provides for the repeal of the Transitional Charter for the Somali Republic (2004).[1] Presidential elections are set for 20 August 2012, which will formally conclude the legal stage of the transition. During the first term of the Federal Parliament, the Provisional Constitution Review and Implementation Oversight Committee (the Oversight Committee) will be tasked with reviewing and strengthening the constitution.[2] 

ARTICLE 19 welcomes the focus given in the Constitution to embedding the protection of the right to freedom of expression and information, as guaranteed in a number of international human rights treaties to which Somalia is a party.[3] However, to fully comply with international standards on the right to freedom of expression and information, a number of Constitutional provisions require reform. Somalia's transition to democracy, including the adoption of the Constitution, continues amid great instability and on-going conflict. Attacks against the media, including the killing of journalists, continue unabated. The Oversight Committee must prioritise strengthening constitutional protections for the right to freedom of expression and information to address the serious threats facing the country's media. 

Fundamental rights and the duties of citizens

The Constitution is premised on a number of founding principles outlined in Article 3. ARTICLE 19 welcomes in particular subsection 4 to this provision, which states that: 

"The Constitution of the Federal Republic of Somalia promotes human rights, the rule of law, general standards of international law, justice, participatory consultative and inclusive government, the separation of powers between the legislature, executive and an independent judiciary, in order to ensure accountability, efficiency and responsiveness to the interests of the people."

Chapter 2 of the Constitution builds upon this foundation, enumerating fundamental rights and duties of citizens between three titles: "general principles of human rights", including human dignity, equality, and guidance on application; "rights, basic personal liberties and its limitations", and "duties of citizens."

ARTICLE 19 is concerned that a number of rights are guaranteed on the basis of citizenship, potentially limiting the enjoyment of rights on the basis of legal status, rather than guaranteeing the right to all people. In some cases, such as the right to vote or hold public office (Article 22), this is a legitimate restriction. However, in the case of the right to non-discrimination (Article 11), the provision switches between the language of "citizen", "person", and "human being" without distinction. It must be clarified that the right to non-discrimination applies to all people.

Recommendation

• The right to non-discrimination should be guaranteed to all people, not reserved to citizens.

The domestic status of international human rights law

The Constitution is premised on the promotion of "general standards of international law" and "human rights" (Article 3), and fundamental rights are to be interpreted in light of "international law" (Article 40). However, no provision in the Constitution clarifies the status of international human rights treaties in domestic law. The Transitional Federal Charter, which the Constitution replaces, provided at Article 14 that all international human rights conventions and treaties ratified by the Republic will be recognised and enforced. The inclusion of a similar provision in the new constitution would give clear domestic support to individuals asserting rights guaranteed by international law.

Recommendation

• The Constitution should include a provision specifically incorporating international human rights treaties into domestic law.

Freedom of expression

The right to freedom of expression and freedom of opinion is protected in Article 18 of the Constitution in the following terms:

(1)     Every person has the right to have and express their opinions and to receive and impart their opinion, information and ideas in any way.

(2)     Freedom of expression includes freedom of speech, and freedom of the media, including all forms of electronic and web-based media.

(3)     Every person has the right to freely express their artistic creativity, knowledge, and information gathered through research. 

ARTICLE 19 welcomes the inclusion of a stand-alone provision in the Constitution to protect the right to freedom of expression. In particular, the following elements comply with international standards contained in Article 19 of the ICCPR and Article 9 of the ACHPR:

• Article 18 provides that the right to freedom of expression applies to all people, and does not limit the right on the basis of nationality or other legal status.
• Article 18 protects the right to express oneself "in any way", and explicitly recognises the application of the right to electronic and web-based media. International law and most constitutions define protected modes of expression broadly. Article 19 of the ICCPR specifies "orally, in writing or in print, in the form of art, or through any other media of his choice."

However, Article 18 is deficient from a freedom of expression and information perspective in a number of respects. The following constitutive elements of the right are lacking or are insufficient:  

• The right to freedom of opinion is an absolute right and may not be subject to limitation or derogation. While closely associated with the right to freedom of expression, the right to freedom of opinion should be guaranteed in a separate subsection so that it can be distinguished on the basis of the illegitimacy of limitation or derogation.
• The right to freedom of expression has three components: the right to seek, impart, and receive information. Article 18 (1) omits the right to seek information, which is key to establishing the relationship between the right to freedom of expression and the right to freedom of information. We find the reference to "freedom of speech" in Article 18 (2) to be unnecessarily repetitive, since it is already encompassed within the right to "impart" ideas and information.
• The right to freedom of expression protects ideas and information of all kinds. The enumeration in Article 18 (3) of "artistic creativity", "knowledge", and "information gathered through research", is too narrow and may be interpreted restrictively. ARTICLE 19 recommends that the right is interpreted as protecting political discourse, commentary on one's own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, religious discourse, and even expression that may be deemed deeply offensive.[4]
• The right to freedom of expression applies "regardless of frontiers". Article 18 must therefore recognise that the right to seek, receive and impart ideas and information applies irrespective of geographical and political boundaries.

The right to freedom of expression, while fundamental, is not an absolute right and may be limited in strictly and narrowly tailored circumstances. Limitations on the right must be (i) provided by law, (ii) pursue a legitimate aim, such as the protection of the rights or reputations of others, national security, public health or morals, and (iii) be necessary to secure the legitimate aim and meet the test of proportionality.[5]

Article 38 of the Constitution provides for the limitations that can be placed on the rights guaranteed in Chapter 2.

(1)         The rights set out in this Chapter may be limited by law, provided that the law is not targeted at particular individuals or groups.

(2)         This right may be limited by law, or by specific exceptions in this Chapter, only if that limitation is demonstrably reasonable and justified according to the values underlying this constitution.

(3)         In deciding whether a limitation is reasonable and justifiable, all relevant factors must be taken into account.

(4)         The relevant factors in terms of Clause 3 include the nature and importance of the right limited, the importance of the purpose to be achieved by the limitation, whether the limitation is suitable for achieving the purpose, and whether the same purpose could be achieved while being less restrictive of the rights limited. 

ARTICLE 19 finds it positive that Article 38 contains the elements of legality, legitimacy of aims, and necessity. Subsection (4) in particular provides a welcome articulation of the proportionality principle. It also requires limitations to be generally applicable and not to target particular individuals, e.g. journalists or members of a particular minority.

However, we believe that Article 38 must be interpreted to recognise that not all human rights can be limited on the same terms. The right to freedom of opinion must be recognised as absolute; it cannot be limited or derogated from in any circumstance. The right to freedom of expression, however, may be restricted where it is provided by law and necessary to protect (a) for respect of the rights or reputations or others; or (b) for the protection of national security or of public order, or of public health or morals. 

Article 131 of the Constitution on "state of emergency" allows powers to be granted to violate rights of the constitution where "absolutely necessary for the purposes of dealing with the emergency situation." From a comparative perspective, the provision on emergencies in the South African constitution includes a schedule of non-derogable rights. The Somali Constitution would benefit from a similar provision, which should include the right to freedom of opinion.   

Recommendations:

• The right to freedom of opinion should be guaranteed as an absolute right in its own subsection.
• The right to freedom of expression should include the right to seek, receive, and impart information and ideas.
• The right to freedom of expression should apply to information and ideas of all kinds.
• The right to media freedom should be elaborated upon in its own section or subsection. 
• Limitations on the right to freedom of expression must be provided by law and necessary to protect (a) for respect of the rights or reputations or others; or (b) for the protection of national security or of public order, or of public health or morals.
• A schedule of non-derogable rights, including the right to freedom of opinion, should be included in the Constitution.

Media Freedom

While "media freedom" is referenced in Article 18 (2), the Constitution would benefit from a stand-alone provision that elaborates upon the importance of an independent and plural media to the right to freedom of expression and information. Many constitutions contain such guarantees, including the Transitional Federal Charter, which protected media freedom under Article 20, including reference to the independence of the media.

The Declaration of Principles on Freedom of Expression in Africa provides a number of guiding principles on how the right to media freedom supports the right to freedom of expression and information.[6] Principle XI on "attacks on media practitioners" is particularly pertinent to the situation in Somalia and would be worthy of emphasis in the Constitution. 

Recommendation

• The Constitution should contain a stand-alone guarantee for the protection and promotion of media independence and plurality.

Access to information

Article 32 of the Constitution protects the right to access information in the following terms:

(1)     Every person has the right of access to information held by the state.

(2)     Every person has the right of access to any information that is held by another person which is required for the exercise or protection of any other just right.

(3)     Federal Parliament shall enact a law to ensure the right of access to information.

ARTICLE 19 welcomes the inclusion of the right of access to information in the Constitution, in particular the commitment to enacting a law to implement this right.

Article 32 is largely a positive provision, particularly since it confers the right of access to information on all people and does not limit it to citizens. It is also positive that the right of access to information is recognised in respect of private bodies where necessary for the exercise or protection of any other right.

A number of principles central to the right of access to information should be read into Article 32 and elaborated upon when legislating to implement this right. These are reflected in the African Platform on Access to Information[7] and in ARTICLE 19's model law on freedom of information.[8]

• The state holds information for and on behalf of the public. Public bodies must ensure easy, prompt, effective and practical access to information that is not proactively disclosed.
• Public bodies should engage in proactive disclosure of information in the public interest.
• "Information" subject to the right includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production.
• "Public body" includes all branches of State; the executive, legislative and judicial branches, as well as other public or governmental bodies, at the national, regional, and local levels, who are in the position to engage the responsibility of Somalia. It should also be interpreted to include private bodies that carry out public functions.
• Information should only be withheld on the basis of clearly established laws, where (a) disclosure would cause serious harm to a protected interest and (b) this harm outweighs the public interest in accessing the information.

Recommendations:

• Article 32 should recognise the right to access information held by private bodies that perform public functions.
• The right of access to information should be implemented in line with the African Platform on Access to Information and with regard to ARTICLE 19's model freedom of information law. 

The right to life and liberty and security of the person

The right to life and the right to liberty and security of the person are protected by Articles 13 and 15 of the Constitution, including guarantees against all forms of violence, torture, and inhumane treatment. 

ARTICLE 19 points out that the failure to investigate threats and attacks against the lives and security of journalists and human rights defenders has undermined the operation of the Somali media and chilled the exercise of freedom of expression in the country. ARTICLE 19 urges the government of Somalia to take special measures to ensure that journalists and human rights defenders are protected from threats of violence and attacks against their lives and person.

Freedom of assembly, demonstration, protest and petition

The right to freedom of assembly, demonstration, protest and petition is guaranteed in Article 20:

(1)        Every person has the right to organize and participate in meetings, and to demonstrate and protest peacefully, without requiring prior authorization.

(2)         Every person has the right to present petitions to governmental institutions.

It is positive that Article 20 secures the right to freedom of assembly, demonstration, protest and petition without prior authorisation. Article 38 allows restrictions to be placed on the right, with the same regard to legality, legitimacy of aims, and necessity as outlined above. International standards specify that legitimate aims are limited to the protection of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others.

Freedom of association

Article 16 protects the right to freedom of association in the following terms:

Every person has the right to associate with other individuals and groups. This includes the right to form and belong to organizations, including trade unions and political parties. It also includes the right not to associate with others, and a person cannot be forced to associate with individuals or groups.

ARTICLE 19 welcomes the guarantee for the right to freedom of association. Article 38 allows restrictions to be placed on the right, with the same regard to legality, legitimacy of aims, and necessity as outlined above. International standards specify that legitimate aims are limited to the protection of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others.

Freedom of religion

The Constitution provides for the right to freedom of religion and belief at Article 17:

(1)   Every person is free to practice his or her religion.

(2)   No religion other than Islam can be propagated in the Federal Republic of Somalia.

Article 2 of the Constitution on "State and Religion" provides that (1) Islam is the religion of the State, (2) no religion other than Islam can be propagated in the country, and (3) no law which is not compliant with the general principles of Shari'ah can be enacted.

In the opinion of ARTICLE 19, there should be no mention of Islam, Islamic or Sharia law or jurisprudence in the Constitution for Somalia. There should also be no mention of any deity or religion, other than to secure the right to freedom of religion. This view is based on a concern about the protection of women, religious minorities, believers and non-believers, whose rights may well continue to be threatened under a new constitutional settlement with reference to Islamic or Sharia law or jurisprudence.

Somalia should be a state that respects the human rights of all, and this should be reinforced through the Constitution that should ideally be secular and committed to "civil" rather than religious values. References to religious principles should be confined to the preamble of the Constitution.

Recommendation

• Article 2 and Article 17(2) of the Constitution should be removed. 

Duties of citizens

Title 3 of the Constitution enumerates the "duties of the citizens" at Article 42. ARTICLE 19 is concerned that a number of these duties may be interpreted to legitimise content-based restrictions on the right to freedom of expression and information that are inconsistent with the protection of Article 18 and Article 32. In particular, the duties to be "patriotic and loyal to the country" and to "foster national unity" may be interpreted to restrict expression critical of official government policy.

Title 3 of the Constitution threatens to undermine the protection of human rights in the country. The balance of human rights protections against competing interests, including the rights of others, is adequately provided for in Article 38 of the Constitution. Title 3 threatens to disturb this balance, and lead to illegitimate restrictions on the right to freedom of expression and information.  

Recommendation

• Title 3 should be removed from the Constitution, since it threatens to undermine the protection of human rights in Somalia.   

Human rights commission

ARTICLE 19 welcomes the creation of a number of independent commissions in Chapter 10 of the Constitution, including the Human Rights Commission at Article 41 and Article 111B. The independence of these commissions is guaranteed in Article 110, including security of funding. These institutions will contribute greatly to the protection and promotion of human rights in the country.

[1] At Article 143; the Transitional Federal Charter for the Somali Republic (February 2004) is available at: http://www.unhcr.org/docid/4795c2d22.html

[2] As provided for by Article 134 of the Provisional Constitution for Somalia

[3] International Covenant on Civil and Political Rights (ICCPR), at Article 19; African Charter on Human and Peoples' Rights (African Charter), at Article 9; Declaration on Principles of Freedom of Expression in Africa (2002).

[4] HR Committee, General Comment No. 34, CCPR/C/GC/34, 21 June 2011, at Para 11.

[5] Article 19 (3) of the ICCPR

[6] Declaration of Principles on Freedom of Expression in Africa http://www1.umn.edu/humanrts/achpr/expressionfreedomdec.html

[7] African Platform on Access to Information, available at: http://www.article19.org/data/files/medialibrary/2740/APAI-FINAL.pdf

[8] A model freedom of information law, ARTICLE 19, available at: http://www.article19.org/data/files/pdfs/standards/modelfoilaw.pdf