Limiting Media Freedom on Grounds of National Security
Module 9: National Security
Despite the above provisions in international law that allow the exercise of the right to freedom of expression to be limited on grounds of national security, provided that this is explicitly provided by law and that the restriction is necessary and proportional in an open and democratic society, in practice, national security is one of the most problematic areas of interference with media freedom.
Defamation and threatening national security
Agnes Uwimana-Nkusi v. Rwanda concerned the conviction of Rwandan journalists Agnes Uwimana-Nkusi and Saidati Mukakibibi on the grounds of defamation and threatening national security following the publication of three articles criticising the government.(1)
The journalist published articles detailing allegations of corruption among high-profile public officers, the human rights situation in Rwanda, and other government shortcomings. The government argued that the articles intended to incite violence and strife against the government by using defamatory statements devoid of evidence. Having exhausted all available domestic remedies, Media Dence (Media Legal Defence Initiative as it was then), filed a complaint to the Commission on behalf of the journalists arguing Rwanda violated their rights to freedom of expression and to a fair trial.
The Commission considered whether discussing the 1994 Rwanda Genocide amounted to genocide denial. Considering Rwanda’s history, it assessed if implementing penal code articles was necessary and proportionate. The Commission emphasised democratic governance contexts in evaluating public order protection and incitement definitions. While acknowledging the sensitivity around the genocide, it found the journalists’ articles did not incite violence or threaten security. The Commission criticised criminal defamation laws, deeming them disproportionate restrictions on journalism. It stressed the vital role of freedom of expression in democracy, particularly in fostering political discourse and holding officials accountable. Consequently, the Commission ruled Rwanda’s actions violated Article 9 of the Charter by unjustly restricting the journalists’ freedom of expression.
One difficulty is the tendency on the part of many governments to assume that it is legitimate to curb all public discussion on national security issues. Yet, according to international standards, expressions may only be lawfully restricted if they threaten actual damage to national security.
Kenya’s anti-terrorism regime, including most notably the 2018 Prevention of Terrorism Amendment Bill, have been criticised for undermining human rights in an effort to protect national security.(2)
Recently, a flurry of laws passed by African states attempting to regulate the rising risk of cybercrimes and to tackle the proliferation of misinformation online have also referenced the need to protect national security as justification for often repressive and broad provisions. For example, Zimbabwe’s Cybersecurity and Data Protection Act, 2021, exempts entities from provisions aimed at protecting the processing of personal information for national security purposes.(3) Nigeria’s Cybercrimes Act of 2015 provides harsh penalties for anyone who accesses computer systems or data that are vital to national security.(4)
The Johannesburg Principles
In 1995, a group of international experts drew up the Johannesburg Principles on Freedom of Expression and National Security.(5) Although non-binding, these principles are frequently cited (notably by the UN Special Rapporteur on Freedom of Expression) as a progressive summary of standards in this area. The Johannesburg Principles address the circumstances in which the right to freedom of expression might legitimately be limited on national security grounds, at the same time as underlining the importance of the media, and freedom of expression and information, in ensuring accountability in the realm of national security.
In 2013, a group of civil society organisations from across the globe — including many who were involved in the drafting of the Johannesburg Principles — published an updated version known as the ‘Tshwane Principles.’(6) The Tshwane Principles state that:(7)
- Governments may legitimately withhold information in some narrowly defined areas, such as defence plans, weapons development, and the operations and sources used by intelligence services.
- Information about serious human rights violations may not be classified or withheld.
- People who disclose wrongdoing or other information of public interest (whistleblowers and the media) should be protected from any type of retaliation, provided they acted in good faith and followed applicable procedures.
- Disclosure requirements apply to all public entities, including the security sector and intelligence authorities.
Although the principles do not constitute binding international law, they were developed with wide consultation and have broad consensus; for example, they have been welcomed by all three of the special experts on freedom of expression — for the UN, the Organisation of American States (OAS), and the African Union (AU), as well as the Organisation for Security and Cooperation in Europe’s (OSCE) expert on freedom of the media.(8)