“An appalling violation of the right to freedom of speech”

“An appalling violation of the right to freedom of speech”

Imagine if you woke one day to find that your government had switched off the internet.

On 17 January 2017, this was the reality for 5 million people in Cameroon. The blackout was widely seen as a direct response to growing anti-government protests in their regions. The authorities kept them disconnected for three continuous months.

Network shutdowns – or “kill switches” – have become an increasingly common state tactic to silence opposition voices. The same is true for website blocking – where people are denied access to specific sites, typically social media channels. In 1995, the Center for Technology Innovation (CTI) at Brookings, a Washington DC-based think-tank, identified just a single government-led internet disruption worldwide. Between July 2015 and June 2016, they found 81 such cases across 19 countries.

In May 2017, the Ethiopian government shut down the internet – ostensibly to prevent cheating in the state’s national school exams, an excuse used previously by Iraq, Algeria and Uganda, among other states. In India and Pakistan, barring access to social media now appears to be a routine response to regional unrest.

In majority French-speaking Cameroon, the internet was only turned off in the two English-speaking (North-West and South-West) regions of the country – where English-trained lawyers and teachers were striking over the state’s refusal to let them work in their own courts and classrooms. Overnight, 20 per cent of the country’s population was silenced.
It’s hard to gauge the full impact of internet shutdowns on the people who experience them: how do you measure the impact of curtailing people’s freedom of speech, or of separating them from family and friends? The economic effects are more calculable. In October 2016, the 81 state-backed internet disruptions from 2015-2016 cost a total of US$2.4 billion[1] in GDP globally.

In Cameroon, the three-month blackout was devastating. From hospitals to banks and businesses (Cameroon’s equivalent of Silicon Valley is located in one of the affected areas), the internet is an essential tool for daily life and work.

One man directly affected by the internet blackout was Cameroonian public interest lawyer Emmanuel Nkea, who came together with Media Legal Defence Initiative (MLDI) to challenge the shutdown through the courts.

The case wasn’t immediately straightforward.

Following discussions by Emmanuel and the MLDI legal team on the most appropriate strategy, it was decided to challenge the shutdown on two fronts: by way of judicial review and through a constitutional challenge.

Emmanuel explains: “We feared that the Constitutional Court could say this is a matter for the High Court only, and the High Court could say this is a matter for the Constitutional Court. So we decided to file both actions as a strategy to [cover ourselves] from both sides.”

In both actions, Emmanuel is acting as counsel to a different consortium of Cameroonian NGOs, who were all affected by the internet shutdown. The defendants include the State of Cameroon, Cameroon Telecommunications (CAM-TEL) and other telecommunications companies in the country.

While there are many procedural nuances to consider, both actions focus on the same legal principle:

Under International Law, the right to freedom of expression is guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Under the ICCPR, this includes “the right to seek, receive and impart information and ideas through any media regardless of frontiers” in its definition.) Freedom of expression is also guaranteed by Article 9 of the African Charter on Human and Peoples’ Rights, to which Cameroon is a party.

The right to freedom of expression is crucial in any democracy – information and ideas help to inform political debate and are essential to public accountability and transparency in government. It includes the freedom to hold opinions and to receive and impart information and ideas without state interference.

As well as funding the case, MLDI worked with Emmanuel in formulating the arguments and drafting the pleadings. In particular, MLDI was able to support Emmanuel by sourcing relevant international legal precedents and statements from authoritative bodies such as the UN to assist his work.

These included UN Special Rapporteur on freedom of expression David Kaye’s response: “I am particularly concerned at the tightening of the space for free speech at a time where its promotion and protection should be of the utmost importance,” he said. “This is an appalling violation of [people’s] right to freedom of expression.”

This was an immense help for Emmanuel. “MLDI identified many of the [legal principles] of the European Human Rights system for the court papers,” he says. “My research would have been very difficult without that work.”

Building this body of international law is especially important, he adds, because Cameroon does not have a bill of rights – and the treaties signed by Cameroon have primacy over national law. In effect, these actions may help determine if the freedom of information and freedom of expression, enshrined in international law, should also be considered a constitutional right for every Cameroonian.

It is worth noting that the UN-enshrined right to freedom of expression is not absolute. There are certain circumstances in which governments can limit or restrict it. But as Pádraig Hughes, MLDI’s Legal Director, explains, any actions must pass a test of “proportionality” – for example, whether it’s appropriate to close the entire digital network, and for only part of the population.

“The fundamental principles of freedom of expression should provide sufficient protection against a blanket internet shutdown,” says Pádraig. “International legal standards on freedom of expression are clear… shutdowns are unlawful and shouldn’t happen.”

MLDI specialises in providing legal defence for journalists. Internet shutdowns block journalists from reporting what’s happening and the public from accessing information via any digital media outlets.

Chief Foanyi Nkemayang Paul is President of the Commonwealth Journalists’ Association for Cameroon and Africa and CEO of The Star newspaper in Limbe, a seaside city in one of the regions affected by the internet blackout.

“The shutdown made us feel like second-class citizens in our own country,” he says. “And for our publication, it was terrible.”

For three months, his editorial team had to travel 85km almost daily to the city of Douala, inside the French-speaking part of Cameroon, to connect to the internet. The travel expenses alone topped 360,000 Central African Francs (£500). The editorial team were unable to use their own equipment, had to rely on finding available computers at busy internet cafes, and undertook numerous risks.

“We had no security,” explains Foanyi. “We had reporters sending us stories for editing. But there was no confidentiality.”

As a result of the internet blackout, the newspaper also frequently missed deadlines – failing to hit its usual morning spot on the newsstands and risking accusations of plagiarism when the newspapers did finally arrive. “It was a huge economic risk,” says Foanyi. “The way we were treated, it was heart-breaking.” He says he is entirely in support of the legal case against the state of Cameroon and telecommunications companies.

How have the legal actions progressed?

“Slowly,” explains counsel Emmanuel. First, the constitutional court said it had lost the files, he says. Then the judges assigned to the case were retired, and the legal panel needed to be reinstated. It took almost five months after filing both actions before Emmanuel and his team found out when they would be heard. On 14 September 2017, the judicial review finally began.

Today, he and MLDI are prepared for a long legal battle. Not least because since the cases have been filed, and despite assurances from the government, they have shut the internet down again in Anglophone regions of the country. These recent shutdowns are new and distinct violations of the rights to free expression and are being challenged on that basis through the courts.

“If the Cameroon courts make any decision that is not favourable, then we will pursue the case before the African Commission” says Emmanuel. “The most important thing now is to ask the question whether the [shutdown] is right or wrong. That’s the first step to accountability. It’s only then that people who have been victimised can use this as a precedent.”

For MLDI, the Cameroon cases are part of a growing number of similar legal actions, where they have been asked to provide legal help.

“It’s important to build a consensus among national courts that shutdowns are illegal” says Pádraig. “This will place pressure on state authorities not to interfere with the internet.”

“If there’s no pushback, governments will continue to use shutdowns as a way of preventing people from communicating.”

[1] The Center for Technology Innovation

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