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    Necessary in a democratic society

    Module 9: National Security

    Most cases involving national security restrictions tend to be decided based on necessity.  One area where restrictions may fall down is if they are overbroad.  This was the issue in the before the UNHRCtte in the case of Mukong v Cameroon.  Albert Mukong was a journalist and author who had spoken publicly, criticising the president and Government of Cameroon.(1) He was arrested twice under a law that criminalised statements “intoxicat[ing] national or international public opinion.”

    The government justified the arrests to the UN Committee on national security grounds.  The Committee disagreed, finding that laws of this breadth that “muzzled advocacy of multiparty democracy, democratic tenets and human rights” could not be necessary.(2)

    The African Commission on Human and Peoples’ Rights (ACHPR) has taken similar positions.  In Constitutional Rights Project and Civil Liberties Organisation v Nigeria, opponents of the annulment of the 1993 presidential elections, including journalists, had been arrested and publications were seized and banned.(3) The African Commission said that no situation could justify such a wholesale interference with freedom of expression.

    Various bodies have found that the burden is on the government to show that a restriction on freedom of expression is necessary.  Courts have also insisted that there must be a close nexus between the restricted expression and actual damage to national security or public order.

    In CORD v Republic of Kenya, the Kenya High Court eloquently explained the fundamental nature of human rights, and that they are not to be regarded as transitory:

    “It must always be borne in mind that the rights and fundamental freedoms in the Bill of Rights are not granted by the State and therefore the State and/or any of its organs cannot purport to make any law or policy that deliberately or otherwise takes away any of them or limits their enjoyment, except as permitted by the Constitution.  They are not low-value optional extras to be easily trumped or shunted aside at the altar of interests perceived to be of greater moment in moments such as this.”(4)

    Footnotes

    1. United Nations Human Rights Commission, Communication No. 458/1991 (1994) (accessible at: http://hrlibrary.umn.edu/undocs/html/vws458.htm). Back
    2. Id at para 9.7. Back
    3. African Commission on Human and Peoples’ Rights, Communication No. 102/93 (1998) (accessible at: https://africanlii.org/afu/judgment/african-commission-human-and-peoples-rights/1998/2). Back
    4. High Court of Kenya, Petition no.628 of 2014 (2015) (accessible at: http://kenyalaw.org/caselaw/cases/view/106083/). Back