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You Cannot Use Your Hand to Force the Sun to Set

Social media is one of the most powerful tools available to Africans — especially the sizeable youth population — who previously have felt disenfranchised, neglected, and powerless.  Across the continent, this tool has been wielded to demand accountability, strengthen democracy, and increase transparency.  Unfortunately, there are increasing efforts to attack this power.

The African Charter on Human and Peoples’ Rights (ACHPR) — as well as the national constitutions across the region — enshrines the complementary rights to receive information and to express and disseminate opinions.  These freedoms may be subject to restrictions but any such restrictions must be prescribed by law, necessary to meet a legitimate state interest, and strictly proportionate to meet that interest.  Attempts to curb social media have been characterized as efforts to pursue the legitimate state interest in protecting national security, public order, and/or public morality.  These restrictions are problematic regardless of the veracity of these claims.

Public figures are entitled to less — not more — protection and, as such, public debate is entitled to more — not less — protection. Social media is “central to all kinds of collective action” and public debate.  In a democratic society, freedom of expression “must be the subject of a lesser degree of interference when it occurs in the context of public debate relating to public figures.”  The African Court on Human and Peoples Rights and the African Commission on Human and Peoples’ Rights are in agreement that “people who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether.”

Imprisonment for violations of speech and press laws is generally disproportionate and must be limited to “serious and very exceptional circumstances.” Across the region, social media users have been imprisoned for their digital activities.  This practice is in direct contravention to the ruling by the African Court on Human and Peoples’ Rights that criminal defamation laws should only be used as a last resort.  Custodial sentences for violations of laws on freedom of speech and the press are a disproportionate interference on freedom of expression rights except in “serious and very exceptional circumstances.”  (Examples of such circumstances are “incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people because of specific criteria such as race, colour, religion or nationality.”) Not only does government criticism not rise to the level of these crimes but also “criminal defamation laws are nearly always used to punish legitimate criticism of powerful people rather than protect the right to a reputation.” 

The ACPHR has no derogation clause in the context of freedom of speech. Election day blackouts of social media platforms have been justified in light of exceptional circumstances.  Some human rights treaties contain a derogation clause “allowing states parties to adjust their obligations temporarily under the treaty in exceptional circumstances [which] include, but are not limited to, armed conflicts, civil and violent unrest, environmental and natural disasters, etc.”  However, the ACHPR contains no such derogation clause.  Therefore “limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances.”  Even when human rights instruments contain derogation clauses, “states of emergency do not create a legal vacuum”; there are fundamental requirements that must be met before a government can trigger the derogation clause.  

Restrictions that target individual entities “raise the serious danger” of discriminatory and unequal treatment before the law. By law or by practice, some of the restrictions have targeted specific social media companies.  The African Commission on Human and Peoples’ Rights has noted that laws that are “made to apply specifically to one individual or legal personality raise the serious danger of discrimination and lack of equal treatment before the law guaranteed by Article 3” of the ACHPR.

The dawn of social media has helped to shine a bright light on cronyism, corruption, and other issues that for far too long have impeded development and democracy in Africa.  Governments should have a hand in empowering their people not shutting them down.  It is time to accept that you cannot use your hand to force the sun to set.

© 2021 Covington & Burling LLPNational Law Review, Volume VI, Number 85
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About this Author

Covington’s Election and Political Law practice is one of the oldest in the Nation.  In addition to our high-profile election law litigation and Federal Election Commission enforcement practice, we advise numerous Fortune 50 and Fortune 500 corporations, trade associations, financial institutions, political party committees, PACs, candidates, lobbying firms, and high net-worth individuals concerning compliance with the increasingly complex array of laws governing the political process.  These include federal and state campaign finance, lobbying disclosure, and government...

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