The Derogation Process under International and Regional Human Rights Treaties

Most key human rights instruments allow a temporary derogation from certain human rights obligations in situations of national emergency. For example, article 4 of the ICCPR states:

“In a time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”(1)

Article 4 then proceeds to list a number of articles that may not be derogated from, even in times of public emergency. These include the rights not to be enslaved or tortured, and the right to freedom of opinion. It does not, however, include article 19, the right to freedom of expression.

The United Nations Human Rights Committee (UNHRCtte) has devoted two of its General Comments to explaining, in detail, the meaning of article 4 and the procedure and scope of derogation. General Comment No. 29, can be taken as an authoritative interpretation of derogation during states of emergency. There are several key points to note, which can be applied equally to other human rights treaties that provide for derogation:

• The state of emergency must be publicly proclaimed according to domestic legal requirements, and should also accompanied by notification to other State Parties and (via the UN Secretary General or other body that serves as the technical secretariat of the treaty), explaining why it is necessary.(2)

• The situation leading to derogation must be “a public emergency which threatens the life of the nation.”(3) In terms of General Comment No. 29, the threshold of threatening “the life of the nation” is a high one, and the UNHRCttee has been highly critical of derogations that have taken place in situations that appear to fall short of the article 4 requirements.(4)

• The UNHRCtte emphasises the importance of the principle that derogations should be limited “to the extent strictly required by the exigencies of the situation.”(5) Even in instances when derogation may be warranted, there should only be derogation from those rights that are strictly required and only to the extent necessary.

The ACHPR, on the other hand, does not contain a clause explicitly permitting derogation during a public emergency. However, many states who are party to the ACHPR have adopted constitutional or legislative measures that do contain derogation clauses, contrary to the position of the ACHPR and the African Commission.(6) For example, article 24 of the Bill of Rights in the Constitution of Kenya states that:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”

However, the High Court of Kenya decided that “protecting national security carries with it the obligation on the State not to derogate from the rights and fundamental freedoms guaranteed in the Constitution.”(7)

The absence of a derogation clause in the ACHPR has caused controversy amongst legal scholars, some of whom argue that a derogation clause provides important protections against state abuse of freedoms during a public emergency,(8) while others claim its omission has enabled the positive development of human rights norms in Africa.(9)

The 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa adopted by the African Commission on Human and Peoples’ Rights (ACHPR) provides that national security is one of two legitimate objectives for limiting access to information or freedom of expression.(10) However, it further provides in Principle 22 that “freedom of expression shall not be restricted on public order or national security grounds unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression.”

This provides a cogent summary of the position in international law of the appropriate line between protecting national security while defending the right to freedom of expression. It is also in line with UN General Comment No. 34 on how States should give effect to article 19(3), which provides that when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself and must comply with the general principles of derogations from the right – that is, be provided in law, be necessary, and be proportional.(11) It also emphasises that extreme care must be taken to ensure that provisions relating to national security do not “suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information.”(12) Restrictions must also not be overbroad and must demonstrate in a specific and individualised fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.