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.<\/p>\n\n\n\n
Agnes Uwimana-Nkusi v. Rwanda<\/em><\/a> concerned the conviction of Rwandan<\/strong> 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.[footnote]Agnes Uwimana-Nkusi v. Rwanda<\/em> (2021) (accessible at https:\/\/achpr.au.int\/en\/decisions-communications\/agnes-uwimana-nkusi-saidati-mukakibibi-rwanda-42612). See also Global Freedom of Expression at Columbia University, \u2018Case update: Agnes Uwimana-Nkusi v. Rwanda (accessible at https:\/\/globalfreedomofexpression.columbia.edu\/cases\/agnes-uwimana-nkusi-v-rwanda\/).[\/footnote]<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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\u2019 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\u2019 freedom of expression.<\/p>\n<\/div><\/div>\n\n\n\n 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.<\/p>\n\n\n\n Kenya\u2019s 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.[footnote]Freedom House, \u2018Kenya\u2019s Antiterrorism Strategy Should Prioritize Human Rights, Rule of Law\u2019 (2018) (accessible at: https:\/\/freedomhouse.org\/sites\/default\/files\/2020-02\/Final_PolicyBriefKenya_11_14_18.pdf<\/a>).[\/footnote]<\/p>\n\n\n\n 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\u2019s Cybersecurity and Data Protection Act, 2021, exempts entities from provisions aimed at protecting the processing of personal information for national security purposes.[footnote]Article 11(5)(d), accessible at: https:\/\/www.veritaszim.net\/sites\/veritas_d\/files\/Data%20Protection%20Act%205%20of%202021.pdf<\/a>.[\/footnote] Nigeria\u2019s Cybercrimes Act of 2015 provides harsh penalties for anyone who accesses computer systems or data that are vital to national security.[footnote]Article 6, accessible at: https:\/\/www.cert.gov.ng\/ngcert\/resources\/CyberCrime__Prohibition_Prevention_etc__Act__2015.pdf<\/a>.[\/footnote]<\/p>\n\n\n\n In 1995, a group of international experts drew up the Johannesburg Principles on Freedom of Expression and National Security.[footnote]Article 19: Global Campaign for Free Expression, \u2018The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information,\u2019 (1996) (accessible at: https:\/\/www.article19.org\/wp-content\/uploads\/2018\/02\/joburg-principles.pdf<\/a>).[\/footnote] 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.<\/p>\n\n\n\n In 2013, a group of civil society organisations from across the globe \u2014 including many who were involved in the drafting of the Johannesburg Principles \u2014 published an updated version known as the \u2018Tshwane Principles.\u2019[footnote]Open Society Justice Initiative, \u2018Understanding the Global Principles on National Security and the Right to Information\u2019 (2013) (accessible at: https:\/\/fas.org\/sgp\/library\/tshwane-und.pdf<\/a>).[\/footnote] The Tshwane Principles state that:[footnote]Open Society Justice Initiative, \u2018The Tshwane Principles on National Security and the Right to Information: An Overview in 15 Points\u2019(accessible at: https:\/\/www.justiceinitiative.org\/publications\/tshwane-principles-national-security-and-right-information-overview-15-points#:~:text=Related%20Work-,The%20Tshwane%20Principles%20on%20National%20Security%20and%20the%20Right%20to,and%20national%20law%20and%20practices<\/a>).[\/footnote]<\/p>\n\n\n\n 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 \u2014 for the UN<\/a>, the Organisation of American States (OAS<\/a>), and the African Union (AU<\/a>), as well as the Organisation for Security and Cooperation in Europe\u2019s (OSCE<\/a>) expert on freedom of the media.[footnote]Open Society Justice Initiative above.[\/footnote]<\/p>\n<\/div><\/div>\n","protected":false},"excerpt":{"rendered":" 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 […]<\/p>\n","protected":false},"author":4,"featured_media":0,"parent":471,"menu_order":320,"template":"page-templates\/chapter.php","publication-category":[],"class_list":["post-476","publication","type-publication","status-publish","hentry"],"acf":[],"yoast_head":"\nThe Johannesburg Principles<\/strong><\/h5>\n\n\n\n
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