African Regional Instruments

Module 1: Key Principles of International Law and Freedom of Expression

A number of regional instruments guarantee the right to freedom of expression in Africa. For example, article 9 of the African Charter provides as follows:

“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.”(1)

Oversight and interpretation of the African Charter is the sole domain of the African Commission on Human and Peoples’ Rights (ACHPR), which was established in 1987. A protocol to the African Charter was adopted in 1998 which created an African Court on Human and Peoples’ Rights (ACtHPR), and which came into effect in 2005.(2)

It should be noted that reference to “within the law” in article 9(2) of the African Charter should not be seen as permitting states to enact laws that violate the right to freedom of expression. The ACHPR made clear in Constitutional Rights Project v Nigeria that “[g]overnment[s] should avoid restricting rights, and take special care with regard to those rights protected by constitutional or international human rights law. No situation justifies the wholesale violation of human rights.”(3)

The right to freedom of expression is further underscored in the African Declaration and the ACHPR Guidelines on Freedom of Association and Assembly in Africa.(4) Nuanced aspects of the right to freedom of expression are explained and recommendations to States and other bodies in relation to these aspects in instruments such as the Resolution on the Deployment of Mass and Unlawful Targeted Communication Surveillance and its Impact on Human Rights in Africa,(5) and the Joint Declaration on Media Freedom and Democracy.(6)

There are also a number of sub-regional instruments that engage the right to freedom of expression, such as the:

Treaty Establishing the East African Community (EAC)(7)
Revised Treaty of the Economic Community of West African States (ECOWAS),(8)
Protocol on Culture, Information and Sport of the Southern African Development Community (SADC).(9)

Other regional bodies also provide useful guidance on how to interpret the right to freedom of expression. For example, the European Court of Human Rights has published a Case-Law Guide(10) providing insight into the decisions of the Court pertaining to article 10 of the European Convention on Human Rights, which deals with freedom of expression. Likewise, the Inter‑American Court of Human Rights provides a jurisprudence booklet on freedom of expression.(11)

Footnotes

African Charter on Human and Peoples’ Rights (1981) (accessible at: https://www.achpr.org/legalinstruments/detail?id=49).
Ibid.
Constitutional Rights Project v Nigeria (1998) (accessible at https://www.achpr.org/sessions/descions?id=100) at pp 57-58.
ACHPR, ‘Guidelines on Freedom of Association and Assembly in Africa’ (accessible at https://www.achpr.org/presspublic/publication?id=22).
ACHPR, ‘Resolution on the deployment of mass and unlawful targeted communication surveillance and its impact on human rights in Africa’ (2023) (accessible at https://africanlii.org/akn/aa-au/doc/resolution/2023-11-09/573/eng@2023-11-09).
ACHPR, ‘Joint Declaration on Media Freedom and Democracy’ (2023) (accessible at https://achpr.au.int/en/news/press-releases/2023-05-04/joint-declaration-media-freedom-and-democracy).
See, for instance, Burundi Journalists’ Union v The Attorney General of the Republic of Burundi, Reference No. 7 of 2013 (2015) (accessible at https://www.eacj.org/?cases=burundi-journalists-union-vs-the-attorney-general-of-the-republic-of-burundi).
Economic Community of West Africa States, ‘Revised Treaty’ (1993) (accessible at https://ecowas.int/wp-content/uploads/2022/08/Revised-treaty-1.pdf).
Southern African Development Community, ‘Protocol on Culture, Information and Sport’ (2001) (accessible at https://www.sadc.int/sites/default/files/2021-08/Protocol_on_Culture_Information_and_Sport2001.pdf).
European Court of Human Rights, ‘Guide on Article 10 of the European Convention on Human Rights’ (2020) (accessible at: https://www.echr.coe.int/Documents/Guide_Art_10_ENG.pdf). For more, see also the ECHR’s Factsheets on Access to the Internet and Freedom to Receive and Impact Information and Ideas (accessible at: https://www.echr.coe.int/Documents/FS_Access_Internet_ENG.pdf), on Hate Speech (accessible at: https://www.echr.coe.int/Documents/FS_Hate_speech_ENG.pdf), on the Protection of Journalistic Sources (accessible at: https://www.echr.coe.int/Documents/FS_Journalistic_sources_ENG.pdf), and on the Protection of Reputation (accessible at: https://www.echr.coe.int/Documents/FS_Reputation_ENG.pdf).
Inter-American Court of Human Rights, ‘Cuadernillo de Jurisprudencia de la Corte Interamericana de Derechos Humanos nº 16: libertad de pensamiento y de expresión’ (accessible at: https://www.corteidh.or.cr/sitios/libros/todos/docs/cuadernillo16.pdf in Spanish).