By Julia Crawford
When African heads of state gathered in July in the Gambia's sleepy seaside capital, Banjul, their host had just shut down a leading private newspaper, jailed journalists, and halted a planned freedom of expression forum on the fringes of the summit. At the summit, the African Union swore in judges for a future pan-African court of justice and human rights, but said nothing about human rights abuses in the Gambia or the lack of due process for its detainees. In a declaration marking the 25th anniversary of the African Charter on Human and Peoples' Rights, AU leaders vowed to rededicate themselves "to ensuring respect for human and peoples' rights" as a prerequisite to their common vision of "a united and prosperous Africa." The charter, binding on all AU members, includes freedom of expression as a fundamental human right. Yet the heads of state failed to comment on the Gambia's vicious repression of the independent press and its lackluster effort to solve the 2004 assassination of a leading editor.
The AU's failure to speak out against press freedom abuses while it maintains offices in the capitals of two of the continent's principal abusers--the Gambia and Ethiopia--casts doubt on its commitment to freedom of expression. The organization has a number of tools to defend freedom of the press, including the Banjul-based African Commission on Human and Peoples' Rights. In 2002, this human rights commission adopted a Declaration of Principles on Freedom of Expression in Africa, which was hailed by rights activists. In 2004, it appointed a special rapporteur on freedom of expression in Africa, whose mandate includes the possibility of carrying out investigative missions. The AU's new African Peer Review Mechanism, a voluntary system under which member states are evaluated for good governance, is also a potential tool for the advancement of press freedom throughout Africa.
But progress is slow, and abuses continue on a massive scale in many member states. Ethiopia, where the AU has its headquarters, has at least 18 journalists behind bars, making it the world's fourth leading jailer of journalists. It is surpassed on the continent by Eritrea, with 23, most of whom have been held incommunicado and without charge for more than five years. (An Internet report considered credible by CPJ sources said three Eritrean journalists may have died in custody.) A CPJ survey found Eritrea, where the government shut down the entire private press in 2001, and Equatorial Guinea to be among the 10 Most Censored Countries in the world. Zimbabwe's litany of human rights abuses includes the use of repressive laws to persecute independent journalists and censor the private press. Many AU member states use outdated criminal laws to harass and imprison journalists, while impunity persists in the murders of journalists in countries such as the Gambia, Burkina Faso, the Democratic Republic of Congo, and Somalia. So why is the AU not doing more?
The AU's special rapporteur on freedom of expression, South African attorney Faith Pansy Tlakula, told CPJ that the AU faces many challenges. "The question is, among all the challenges--democratization, peace and development, postwar reconstruction--whether, in the order of things, freedom of expression is going to be a priority," she said. "Of course it should be, as a precursor to the enjoyment of all the other rights."
Tlakula said her priorities were to monitor and report on freedom of expression, thereby raising awareness of the AU human rights commission's work in this field. She said she had not completed any investigative missions since her appointment in December 2005, although she was preparing a report on the Gambia. Tlakula said her office, like much of the AU, was hamstrung by limited staff and financial resources. "We're working on a part-time basis," she told CPJ. By all accounts, lack of resources is a significant problem for the human rights commission as a whole. "Some of the rapporteurs of the commission do a good job, but it's always a struggle because there is no money," said Darian Pavli, an attorney at the Open Society Justice Initiative in New York, which has brought cases before the commission.
Lack of political will is another issue. "The root of the problem is misguided solidarity at the top political level," Pavli told CPJ. "Most leaders are reluctant to say things that could come back and hit them."
At its December 2005 session in Banjul, the commission condemned human rights violations in Zimbabwe and Eritrea, and enjoined the leaders of those countries to respect their obligations under the charter. It called on Zimbabwe to support "the fundamental rights and freedoms of expression, association and assembly, by repealing or amending repressive legislation," and it issued a blunt appeal to Eritrea to "immediately free the former cabinet ministers, government officials, members of parliament, journalists, media practitioners, and other individuals who have been arrested and detained for many years without trial." The commission also asked the Ethiopian government to "release arbitrarily detained political prisoners, human rights defenders, and journalists," and urged it to "guarantee at all times freedom of opinion and expression."
Eritrea remains Africa's most repressive country following a September 2001 crackdown in which authorities suspended all private press operations, jailed political dissidents and journalists in secret locations, and forced many others into exile. In Zimbabwe, the government has waged a relentless war on critical voices since 2000, using repressive new laws to imprison and harass journalists and driving dozens into exile. The laws have also led to the closure of several newspapers, including the country's only private daily.
At a summit in Khartoum in January, AU heads of state adopted the human rights commission's decisions "except for those containing the resolutions on Eritrea, Ethiopia ... and Zimbabwe," admonishing the commission for not having enlisted responses from those member states. Six months later, the Banjul summit made no mention of human rights abuses in those countries.
In addition to its recent tough resolutions, the commission, which was inaugurated in 1987, has produced some jurisprudence on press freedom issues, although Pavli said not enough cases have been brought. Part of its mandate is to interpret the charter, Article 9 of which states, "Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law." Pavli described this as "the weakest of all free speech articles among the regional bills of rights," but noted that the commission has given "within the law" a broad interpretation by applying international standards.
Pavli said the human rights commission has also been gaining in moral authority. "The decisions are not strictly binding, but they have the potential to be embarrassing. In the beginning, states wouldn't even show up for a commission hearing, but in the last five to 10 years it has gained some authority," he said. "States, if they can avoid it, would rather not be found in violation of the charter." For example, Pavli helped bring a case against the government of Cameroon on behalf of award-winning journalist Pius Njawe, whose Freedom FM radio station was shut down as it attempted to launch in May 2003. Njawe, winner of a 1991 CPJ International Press Freedom Award, has shown continuing courage in the face of imprisonment, harassment, and censorship. Cameroonian officials, confronted with a potentially embarrassing complaint, signed an agreement to allow Freedom FM to launch, although they have dragged their feet thus far in honoring the pledge.
There is hope, too, that the future African court will give human rights decisions more teeth. "The court will strengthen our work," the AU's Tlakula told CPJ. "If we take cases to the court, it will issue enforceable orders, which will enhance the protection of human rights. A court order is much better than a recommendation." Pavli said the independence of the court nevertheless remains to be seen, as does the AU's willingness to enforce its decisions. "Ultimately, the test for enforcement will be political," he told CPJ. "It will be up to the organization as a whole to ensure compliance."
Peer pressure is the cornerstone of another AU tool, the voluntary African Peer Review Mechanism. The process involves a self-assessment by the country submitting to the review--one that is supposed to be inclusive of civil society--and an assessment by an outside team of AU experts; the team then draws up a report, including a "Program of Action" for improvements. Ghana and Rwanda were the first countries to complete the process; their reports were released in 2006. About half of the AU member states have now signed up for a review.
Still, activists complain that civil society is sidelined from the process, the reports are sanitized, and not enough attention is paid to critical issues--in particular, freedom of expression and the media. The report on Rwanda, which has a pattern of violence and intimidation against journalists, contains only scant and inconclusive reference to press freedom. "The African Peer Review Mechanism is something of a sham, I think," said veteran South African journalist and press freedom activist Raymond Louw. He said the need for a free press was originally included in the self-assessment questionnaire, but it was removed from the final draft. Louw is among those leading an effort to have the heading reinserted, a battle he described as uphill.
The Peer Review Mechanism can certainly be improved. AU human rights tools are gaining ground, while the establishment of an African court of human rights will also be important. The AU, like its predecessor, the Organization of African Unity (OAU), nevertheless remains reluctant to point the finger at individual member states, let alone sanction them. If the African Union wants to finally shake off suspicions that it is still a "club of dictators," as critics once dubbed the OAU, then it must be prepared to take tough action against human rights abusers and give press freedom the importance it deserves in the development of democracy and human rights in Africa.