Communication 290/2004 – Open Society Justice Initiative (on behalf of Pius Njawe
Noumeni) v. the Republic of Cameroon
Summary of the Complaint
1.
The Secretariat of the African Commission on Human and Peoples’ Rights (the
Secretariat), received a complaint on 28 June 2004 from Open Society Justice
Initiative (the Complainant) on behalf of Pius Njawe Noumeni (the Victim),
journalist and head of Groupe Le Messager.1
2.
The Complaint is submitted against the Republic of Cameroon (the Respondent
State), State Party to the African Charter on Human and Peoples’ Rights (the
African Charter or the Charter).2
3.
The Complainant submits that the Victim is: a prominent activist for media
freedom; he established Le Messager Newspaper which is outspoken and
independent; he has been arrested thirty times since 1990, forced into exile and
imprisoned three times for weeks or months; and Le Messager and its satirical
sister, Le Messager Popoli have been banned and seized, and their staff have been
arrested and prosecuted, on numerous occasions.
4.
The Complainant submits that the Respondent State had a state monopoly on
radio and television broadcasting until 1990, when it enacted Law No. 90/052 on
Freedom of Social Communication of 19 December 1990 (Law 1990) which had
the stated aim of liberalising broadcasting. The Complainant submits that the
Government finally issued the implementing Decree for Law 1990 on 3 April
2000, by adopting Decree No. 2000/158 Establishing the Conditions and
Modalities for the Creation and Operation of Private Audiovisual
Communication Enterprises (Decree 2000). The Complainant adds that radio
stations had begun to appear in Yaounde under conditions of a regulatory
vacuum, despite threats by authorities that no one could operate until the
government issued a decree to implement Law 1990.
5.
The Complainant avers that, during the regulatory vacuum, in November 1999
Le Messager, started operating a radio station in Douala, Radio Sawa, on the 20th
anniversary of Le Messager. Radio Sawa operated from November 1999 to April
2000.
Following the sudden death of the Victim on 12 July 2010, the Complainant submitted a signed
statement by Ms Amanda Njawe, the Victim’s oldest child and next of kin, requesting the continuation
of the full consideration of the Communication and the totality of the claims submitted therein.
2 The Republic of Cameroon ratified the African Charter on 20 June 1989.
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6.
The Complainant submits that when the State finally issued Decree 2000, Groupe
Le Messager suspended broadcasting in order to obtain better equipment. The
Complainant avers that on 29 October 2002, after raising sufficient funds to
purchase the equipment, Le Messager submitted a formal application for a radio
licence with the Minister of Communication.
7.
The Complainant states that pending review of the application, Le Messager
started purchasing equipment and building studios for the radio. On 31 January
2003, it informed the Minister of Communication of its decision to change the
name of the radio station to Freedom FM, and also requested that it be allocated
a different frequency, as its former frequency was attributed to another radio
station.
8.
The Complainant avers that on 7 February 2003, a group of technicians from the
Ministry of Communication visited the premises of the radio station and
inspected the equipment for four hours.
9.
The Complainant submits that on 15 May 2003, Le Messager announced in print
media that it will begin broadcasting on Freedom FM on 24 May 2003. The
Complainant adds that after the mandatory time-limit of six (6) months, on 21
May 2003, the Minister of Communication did not respond favourably to the
request arguing that the application was still being considered.
10.
The Complainant submits that on 23 May 2003, even before Freedom FM began
broadcasting, dozens of army, police and gendarmerie forces took over the
Freedom FM building and sealed off the studios and transmission rooms. The
Complainant further submits that they claimed to act pursuant to an order of the
Minister of Communication banning Freedom FM.
11.
The Complainant alleges that the value of the radio equipment is about 60
million CFA francs (110, 000 US dollars), and that because the insulation and airconditioning of the sealed rooms were unfinished, the equipment is exposed to
rainy and humid weather which would cause serious damage.
12.
The Complainant avers that upon the proposal of the Minister of
Communication to change the name and programming nature of the radio, on 3
June 2003, Le Messager filed amendments to the initial application for a
broadcasting licence.
13.
The Complainant avers that in the following weeks the Minister of
Communication informed Le Messager that the Douala radio market is saturated
and that City FM would have to transmit from a location outside Doula. The
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Complainant states that the Victim proposed two new sites 60 km west of
Douala, but the Minister failed to respond. The Complainant adds that Le
Messager has not received any formal notification from the Minister regarding the
outcome of its licence application, and that it has been denied access to its seized
equipment.
14.
The Complainant further submits that the Minister of Communication is in the
habit of processing applications for operational licences in an arbitrary, illegal
and discriminatory manner and had on several occasions refused to grant
statutory licences to operators of radio stations. The Complainant cites the case of
Radio Veritas, a Douala-based radio of the Catholic Church, which never
received a response to its licence application of 2001 until November 2003, amid
speculations that Cardinal Christian Tumi of Douala, an outspoken critic of the
government, might run against President Paul Biya in the upcoming elections.
The Complainant states that the Minister of Communication authorised the radio
to operate only after the Cardinal publicly declared that he had no intention of
running.
15.
The Complainant submits that the Minister simply allocates frequencies to
broadcasters that it generally deems to be politically innocuous to the current
government. The Complainant states that on 27 May 2003, the Minister of
Communication passed Decision No. 012 allocating frequencies to fourteen (14)
radios in the capital Yaounde and ten radios in Douala without granting them a
proper licence. The Complainant states that this has not provided any legal cover
to the operators of radio stations but only placed them in a situation of
uncertainty since the informal authorisation could at any given time be
withdrawn.
16.
The Complainant alleges that on 4 September 2003, Le Messager filed an action for
emergency relief against the Douala Representative for National Security,
requesting the release of the equipment. The Complainant further alleges that the
Douala Court of First Instance postponed the hearing 19 times in almost five
months because of the Respondent State’s failure to appear before the Court.
17.
The Complainant submits that following the Minister of Communication’s
intervention as an interested party regarding the jurisdiction of the Court of First
Instance, on 26 January 2004, the Court ruled that it was not competent to decide
on the case. The Complainant adds that the Court only notified Le Messager of the
written judgment in mid-May 2004, after which Le Messager appealed the ruling
to the Douala Court of Appeal. While the Court of Appeal was to consider this
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appeal, some equipment worth $110,000 continued to depreciate as a result of
poor storage conditions.
18.
The Complainant submits that on 11 November 2003, while the civil case was
pending, the Minister of Communication brought a criminal action against the
Victim and Le Messager for having “created and operated” an unlicensed
broadcasting company.
Articles alleged to have been violated
19.
The Complainant alleges violation of Articles 1, 2, 9, and 14 of the African
Charter.
Prayers
20.
The Complainant requests the African Commission on Human and Peoples’
Rights (the Commission) to:
a) hold that Cameroon’s laws and practices on licensing of private
broadcasters, as well as its silent refusal to grant Le Messager a radio
licence, violate Article 9 and Article 1 of the Charter;
b) hold that Cameroon has violated the Victim’s right to property under
Article 14 of the Charter;
c) hold that Cameroon has violated the Victim’s right under Article 2 of the
Charter to enjoy freedom of expression without being subjected to
politically-motivated discrimination;
d) request that Cameroon bring its broadcasting laws and practices in
conformity with Article 9 of the Charter and the Commission’s
Declaration of Principles on Freedom of Expression in Africa; and
e) request the State to pay appropriate compensation to the Victim for the
multiple violations of his Charter rights and freedoms.
Procedure
21.
The Secretariat received the Complaint on 28 June 2004 and acknowledged
receipt on 5 July 2004. Accompanying the Complaint was a request for
Provisional Measures in accordance with Rule 111 of the 1995 Rules of Procedure
of the Commission.
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22.
By letter dated 15 July 2004, the Commission transmitted a request for
provisional measures to the Respondent State in accordance with the Rules of
Procedure, to ensure that no irreparable damage is done to the equipment of Le
Messager.
23.
By letter dated 16 November 2004, the Complainant informed the Commission
that the request for provisional measures had not been complied with and that
the Victim had received death threats over the matter.
24.
During its 36th Ordinary Session, held from 29 November to 7 December 2004,
the Commission considered the Communication and decided to be seized of it.
During the Session, the Complainant made an oral submission on the failure of
the Respondent State to comply with the request for provisional measures. The
Respondent State’s delegates at the Session indicated that they had not been
made aware of the request and the head of delegation, Minister Joseph Dion
Ngute, offered his good offices with a view to facilitating an amicable solution to
the matter.
25.
On 22 December 2004, the Secretariat informed the parties that the Commission
had been seized of the Communication and requested them to submit arguments
on admissibility within three months from the date of notification. The
Secretariat reminded the Complainant to forward its submissions by letter dated
22 February 2005.
26.
On 22 March 2005, the Complainant submitted its arguments on admissibility,
which were transmitted to the Respondent State on 29 March 2005.
27.
At its 37th Ordinary Session, which was held from 27 April to 11 May 2005, the
Commission considered the Communication and heard oral submissions from
the parties. The Commission subsequently deferred its decision on admissibility
pending receipt of further arguments from the Respondent State.
28.
By Note Verbale dated 8 September 2005, the Respondent State informed the
Secretariat that an amicable settlement was underway on the matter.
29.
By letter dated 4 October 2005, the Secretariat informed the Complainant of the
developments and transmitted the documents forwarded by the Respondent
State to support its claim. The Complainant was requested to forward its
observations.
30.
At its 38th Ordinary Session held from 21 November to 5 December 2005, the
Commission deferred its decision pending receipt of the Complainant’s formal
response on the outcome of the said amicable settlement.
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31.
On 28 April 2006, the Secretariat received correspondence from the Complainant
stating that Radio Freedom FM and the Government of Cameroon signed a
settlement agreement on 24 June 2005, and pursuant to the agreement:
i.
The Respondent State had dropped the criminal charges against the
Director of Freedom FM and released the equipment of the radio station;
ii.
The Respondent State has committed itself to grant Freedom FM a
provisional authorization to broadcast, and process its application for a
full licence in a fair and equitable manner;
iii.
Freedom FM, for its part, has agreed to discontinue the Communication
before the Commission, and settle the case amicably;
iv.
The ongoing negotiations between the parties on the compensation issue
has produced a mutually acceptable compromise, with the Respondent
State agreeing to re-open discussions with Freedom FM in relation to the
compensation of the damages suffered by the radio station, with a view to
reaching a fair, comprehensive and final settlement of the case; and
v.
The Respondent State has reiterated its commitment to grant Freedom FM
a provisional authorization as soon as consideration of the current
Communication is discontinued – as well as process the Radio’s
application for a broadcasting licence in a fair, transparent, and
expeditious manner.
32.
In light of the above, the Complainant, acting on behalf of the Victim requested
the Commission to discontinue the consideration of Communication 290/04
against the Republic of Cameroon and that the amicable settlement be registered.
33.
At its 39th Ordinary Session held from 11 to 25 May 2006 in Banjul, The Gambia,
the Commission, acting on the Complainant’s request, decided to close its
consideration of the Communication, requesting that the terms of the amicable
settlement upon which the Complainant’s request for discontinuance was based
be filed with the Commission.
34.
By Note Verbale dated 23 November 2006, the Respondent State forwarded a
report of a joint meeting that took place on 24 June 2005 between the Ministry of
Communication and the Victim, which report sets out the terms agreed on by the
parties.
35.
On 18 December 2006, the Complainant copied the Chairperson of the
Commission in a letter addressed to the Minister of Communication of the
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Respondent State, enquiring about the Respondent State’s failure to comply with
the terms of the amicable settlement.
36.
On 20 April 2007, the Secretariat received a correspondence from the
Complainant requesting the Commission to:
i.
Reopen the Communication procedure and resume the normal
consideration of the Communication, by virtue of the Respondent State’s
failure to grant Radio Freedom FM a broadcasting authorization in
material breach of the 24 June 2005 amicable settlement which, the
Complainant alleges, is no longer effective and, in any event, would no
longer constitute an amicable solution on the issue based on the respect of
human rights and fundamental freedoms, as recognized by the Charter.
ii.
Adopt provisional measures requiring the Cameroonian authorities to
grant Radio Freedom FM a provisional authorization to broadcast
pending the Commission’s consideration of the case. The Complainant
further avers that the Commission’s urgent intervention is needed to
preserve the Victim’s freedom of expression by requesting that Radio
Freedom FM be immediately granted a provisional authorization to
broadcast, which would not require Cameroon to do anything more than
what it agreed to do under the terms of the June 2005 settlement.
iii.
Grant audience to the Complainant at the 41st Ordinary Session.
37.
At its 41st Ordinary Session, held from 16 to 30 May 2007, the Commission
granted the Complainant audience during which the latter argued for the matter
to be continued and for the Commission to issue provisional measures.
38.
By letter dated 8 July 2007, the Secretariat informed the Complainant of the
Commission’s decision to reopen the matter, and decline the request for
provisional measures.
39.
By Note Verbale dated 8 July 2007, the Respondent State was requested to
indicate the measures it had taken to implement the terms of the amicable
agreement. A reminder was sent to the Respondent State on 11 September 2007.
40.
By Note Verbale and letter dated 20 March 2008, the parties were requested to
submit their observations on admissibility.
41.
The Secretariat received the Complainant’s submissions on admissibility on 10
May 2008, and forwarded the same to the Respondent State and invited it to
respond by Note Verbale dated 4 July 2008.
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42.
After several reminders from the Secretariat, by Note Verbale dated 16 February
2010, the Respondent State requested to be allowed more time to make its
submission on admissibility.
43.
By Note Verbale dated 18 March 2010, the Respondent State forwarded its
submissions on admissibility.
44.
By letter dated 6 May 2010, the Complainant urged the Commission to resume
active consideration of the Communication due to the adverse effects of the
delayed resolution.
45.
By Note Verbale dated 4 October 2010, the Secretariat acknowledged receipt of
the Respondent State’s submissions on admissibility and forwarded the same to
the Complainant by letter dated 4 October 2010.
46.
On 10 November 2010, the Complainant acknowledged receipt of the
Respondent State’s submissions on admissibility, and informed the Commission
that Pius Njawe Noumeni (the Victim), died in a traffic accident on 12 July 2010.
The Complainant submitted a signed statement by Ms Amanda Njawe, the
Victim’s oldest child and next of kin, requesting the Commission to continue
with the full consideration of the Communication and the totality of the claims
submitted therein.
47.
During its 11th Extra-Ordinary Session held from 21 February to 1 March 2012,
the Commission considered the Communication and declared it admissible. The
Parties were informed and the Complainant was requested to forward its
submissions on the merits by 25 August 2012.
48.
On 21 August 2012, a reminder was sent to the Complainant to submit on the
merits within one month of the notification, failing which the Communication
will be struck out.
49.
On 13 November 2012, the Secretariat received a Note Verbale from the
Respondent State transmitting the State’s submissions on the merits. The
submissions were transmitted to the Complainant by letter dated 20 November
2012.
50.
At the 13th Extra-Ordinary Session held from 19 to 25 February 2013, the
Commission decided to strike out the Communication for lack of diligent
prosecution. The Parties were informed by correspondence dated 28 February
2013, respectively.
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51.
By letter dated 9 April 2013, the Complainant informed the Secretariat that it had
not received any notification regarding the admissibility decision taken, and
requested the Commission to re-instate the Communication.
52.
At its 54th Ordinary Session held from 22 October to 5 November 2013, the
Commission having found acceptable the reasons presented by the Complainant,
re-listed the Communication. The Parties were informed by correspondence
dated 15 November 2013, and the Complainant was invited to submit on the
merits within sixty days.
53.
The Complainant transmitted its submissions on the merits by letter dated 14
January 2014, which was forwarded to the Respondent State on 3 February 2014.
54.
By Note Verbale dated 30 April 2014, the Respondent State forwarded its
submissions on the merits to the Commission.
55.
The Respondent State’s delegation attending the 55th Ordinary Session of the
Commission, held in Luanda, Angola, from 28 April to 12 May 2014, informed
the Secretariat that the Complainants’ Submissions on the Merits were never
received by the Government of the Republic of Cameroon. The Submissions were
therefore re-transmitted by Note Verbale dated 28 May 2014.
The Law on Admissibility
Complainant’s Submission on Admissibility
56.
The Complainant submits that domestic remedies are in part non-existent and
therefore unavailable to the Complainant, and in part have been proven
ineffective and unduly prolonged. While Decree 2000 gives the Minister a sixmonth deadline to decide on a licence application, neither Law 1990, nor the
Decree 2000 specifies what remedies, if any, a licence applicant has against the
Minister’s failure to act on an application. In addition, both instruments fail to
specify whether the Minister’s silence should be legally considered as either
acceptance or rejection of the application.
57.
Under Cameroon law and practice, the applicant would be able to challenge,
before the administrative chamber of the Supreme Court, only the explicit
rejection of a licence application by a Government entity, unless otherwise
provided by law.
58.
The Complainant submits that the failure of the broadcasting laws to define the
legal effects of administrative silence and/or to provide explicitly for a remedy
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against administrative silence means that Radio Freedom FM was left without a
domestic remedy to challenge the Minister of Communication’s (now five-yearlong) failure to act on its application. In view of this, the Complainant concludes
that they were not required to exhaust remedies that were unavailable. The
Complainant contrasts this situation with the relevant Cameroonian legislation
on licensing of drinking establishments which stipulates that administrative
silence on a licensing application past the three-month deadline shall amount to
a grant of the licence.
59.
The Complainant contends that the Minister of Communication has developed
an entrenched and illegal practice of granting temporary or informal
authorization that gives broadcasters no legal recognition or certainty. In this
regard, they argue that victims of such entrenched and widely-tolerated
administrative practices are not required to exhaust ostensible, “paper” remedies
if judicial or administrative challenges to those practices are likely to be
ineffective or to subject the victims to even greater abuse and harassment. The
Victim in this case is essentially in the same position because of Cameroon’s
policy – inconsistent with its own laws – of not granting licenses to private
broadcasters, as well as the great likelihood that any challenges to that policy
would result in further retaliation by the Government.
60.
The Complainant further submits that the excessive degree of discretion granted
to the Minister of Communication by Cameroon’s broadcasting laws would
render any theoretical form of judicial review ineffective and illusory.
61.
The Complainant further contends that even if the Minister’s licensing decision
could be subject to some form of judicial review, the legal framework provides
no standards, and therefore gives applicants no basis to challenge those decisions
on the merits. Under these circumstances, the Complainant holds that only a
domestic constitutional challenge to the licensing laws could provide an effective
remedy to the Complainants. In that regard, the Complainant states that the
Constitution of Cameroon grants the Constitutional Council the power to review
unconstitutional legislation. However, competence to bring actions before this
court is limited to senior executive and elected officials and the Complainant
thus has no opportunity to challenge the constitutionality of the licensing laws.
62.
Regarding the attempts made to seek local remedies in respect of the sealing off
of Freedom FM, the Complainant submits that while Radio Freedom FM was not
able to challenge the Minister of Communication’s silence directly, it sought to
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do so indirectly by filing a civil action following the sealing of its premises and
equipment.
63.
In that regard, on 4 September 2003, Le Messager filed an expedited action for
emergency relief against the Douala Representative for National Security (an
agent of the central Government), requesting for the removal of the seals and
release of the equipment, which had been under seal continuously since 23 May
2003.
64.
The lawsuit argued that the sealing was without any legal basis, that Radio
Freedom FM had never started broadcasting, and that the Minister of
Communication had failed to comply with the statutory six-month deadline to
process its licence application.
65.
The supposedly expedited proceedings, assigned to a judge of the Douala Court
of First Instance, were postponed nineteen times in the next four and a half
months because of the Government representatives’ repeated failure to appear.
Initially the judge set a 20 September 2003 deadline for the final decision, but
then decided on that date to re-open the debate and request the opinion of the
public prosecutor; a highly unusual measure in a private case like this.
66.
In the meantime, the Minister of Communication sought, and was granted, leave
to intervene in the case as an interested party, arguing that with regard to the
Minister of Communication’s order to ban Radio Freedom FM’s operations, the
sealing of the equipment was “a material act necessary to enforce a unilateral
administrative act”. The Minister of Communication also argued that the Court
of First Instance had no jurisdiction over the case, which should be tried by an
administrative tribunal.
67.
The Complainant submits that in one of the final hearings, the national police
headquarters in Yaoundé sent a representative to testify that the police had
suspicions that Le Messager was conspiring to use Freedom FM to overthrow the
Government. The only effort by the police representative to substantiate these
outlandish allegations was a statement that the radio’s “sophisticated
equipment” could be programmed to enable radio Communication among a
selected group of people (i.e. like “walkie-talkie” Communication).
68.
On 26 January 2004, heeding the Minister of Communication’s suggestion, and
after months of debate on the merits, the court ruled that it was not competent to
decide the case. The Douala Court of First Instance notified and prepared a
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certified copy of the written judgment, which Le Messager needed to be able to
appeal pursuant to the relevant procedural laws by mid-May 2004 only.
69.
Le Messager appealed the ruling to the Douala Court of Appeal, arguing that the
case belongs to the civil jurisdiction. For some eighteen months, the Court of
Appeal took no action whatsoever on the appeal, failing even to set a date for a
single hearing on the case until July 2005, when Le Messager withdrew the case
pursuant to the terms of its amicable settlement agreement with the Government.
70.
The Complainant argues that the judicial procedures pursued by the Victim to
indirectly challenge the Minister of Communication’s failure to take a decision
on the application, as well as its order to ban Radio Freedom FM’s operations
indefinitely and seize its equipment, were rendered patently ineffective and
unduly prolonged by the actions, omissions and inadequacies of the domestic
courts. This conclusion is supported by the Commission’s own jurisprudence,
including in Mekongo v. Cameroon and Modise v. Botswana.3
71.
The Complainant argues that while the delays in this case may not be as
prolonged, in absolute terms, as those identified by this Commission in other
cases, they are significant insofar as they occurred in the context of proceedings
that were supposed to be urgent and expedited; and were characterized by
repeated and blatant procedural omissions of the most basic nature by both the
Court of First Instance and the Court of Appeal.
72.
Ultimately, the deliberate failure of the Douala Court of First Instance to provide
a written judgment, coupled with the failure of the Court of Appeal to hold a
single hearing on Le Messager’s appeal – both over extended periods of time –
amount to a clear case of denial of justice. Such judicial behaviour casts serious
doubt on the ability or willingness of the Douala courts to preside over a fair trial
in this matter.
73.
On Article 56 (7), the Complainant submits that the case has not been submitted
to or settled by any other international human rights mechanism.
Respondent State’s Submission on Admissibility
74.
3
The Respondent State submits that considering the facts, clarifications provided,
and the amicable and definitive settlement that is underway with Mr Pius Njawe,
Communication 59/91 - Embga Mekongo Louis v. Cameroon (1995) ACHPR and Communication
97/93_14AR John K. Modise v. Botswana (2000) ACHPR.
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the Victim; it would appreciate if the Commission would suspend the
proceedings before it and declare the Communication inadmissible.
Analysis of the Commission
75.
The Admissibility of Communications submitted to the Commission in
accordance with Article 55 of the African Charter is governed by the conditions
stipulated under Article 56 of the Charter. Article 56 outlines seven (7) conditions
which must generally be met by the Complainant for the Communication to be
considered admissible.
76.
In the present Communication, the Complainant submits that the seven conditions
have been met, while the Respondent State holds that the matter has been settled
by means of an amicable settlement and requests the Commission to declare the
Communication inadmissible.
77.
None of the parties have submitted arguments on the compliance of the
Communication under Article 56 (1), (2), (3), (4) and (6). The Commission
considers that these provisions raise no contentious issues and accordingly
considers the requirements to have been complied with.
78.
Regarding Article 56 (5), the Complainants submissions as outlined above4 are to
the effect that local remedies are in part inexistent and therefore unavailable, and
in part, have proven ineffective and unduly prolonged.
79.
The Commission has already stated its position on the importance of the
exhaustion of local remedies, by maintaining that ”the rationale of the local
remedies rule both in the Charter and other international instruments is to
ensure that before proceedings are brought before an international body, the
State concerned must have had the opportunity to remedy the matters through
its own local system.”5
80.
The Commission notes that the legal framework for broadcasting in Cameroon
does not provide any remedy or avenue of recourse against the decision of the
Minister of Communication if he fails to grant a broadcasting license within the
statutory six months’ period. The law also does not indicate any remedies for the
Minister’s inaction and whether or not the Minister’s silence should be legally
considered as either acceptance or rejection. The law grants an unfettered
4 See paragraphs 56-72 above.
5 Communication Nos. 147/95, 149/96 - Sir Dawda K. Jawara vs. Gambia (2000) ACHPR para. 31.
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discretion to the Minister to the extent that the latter is not obliged to justify his
decision.
81.
The Commission also notes that under Cameroonian law and practice, the
applicant would only be able to challenge before the Administrative Bench of the
Supreme Court, the explicit rejection of a license by a Government entity, unless
provided by law.
82.
The Complainant has also made it clear that given the nature of the law, only a
domestic constitutional challenge to the law could provide an effective remedy.
However, the Complainant has no competence to bring a case before the
Constitutional Council of Cameroon given that only senior executives and
elected officials have standing before this jurisdiction.
83.
In spite of the above, Le Messager took reasonable steps to challenge the
Minister’s action in a civil suit following the sealing of its premises by instituting
civil proceedings in the Douala Court of First Instance, which after months of
debate on the merits of the case, declared that it was incompetent to hear the
matter. The Court also failed to provide Le Messager with a copy of the Judgment
which would have enabled it file an appeal pursuant to the relevant domestic
procedural laws. Even though Le Messager subsequently succeeded to appeal the
decision of the Court of First Instance, the case was stalled at the level of the
Court of Appeal because, for 18 months, no single hearing was set for the case
and Le Messager was compelled to discontinue the matter following the amicable
settlement with the Government of Cameroon.
84.
The Commission notes that the Respondent State has not challenged the
Complainant’s submissions on Article 56 (5) and in accordance with its
established practice, the Commission considers that the facts as submitted by the
Complainant are proved.
85.
In the above circumstances, the Commission is inclined to agree with the
Complainant’s argument that local remedies were inexistent in its circumstances.
The Commission also agrees with the Complainant that the remedies attempted
proved ineffective. This is in tandem with the decision of the Commission in
Communication 155/96 – The Social and Economic Rights Action Center and the
Center for Economic and Social Rights v. Nigeria (SERAC Case),6 wherein it was held
that “if a right is not well provided for, there cannot be effective remedies or any
6 Communication 155/96 -Social and
Economic Rights Action Center, Center for Economic and Social Rights v
Nigeria (2001) ACHPR para 37.
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remedies at all”7. Similarly, in Communication 147/95 – Jawara v. The Gambia, the
Commission held that “a remedy is considered available if the petitioner can
pursue it without impediment”8 and that “a remedy is considered available only
if the applicant can make use of it in the circumstance of his case”.9
86.
Based on the foregoing, the Commission considers that it would be unreasonable
to require the Complainant to exhaust inexistent local remedies or remedies that
have proved to be ineffective and consequently holds that Article 56 (5) has been
complied with.
87.
On Article 56 (7), the Complainant submits that the present Communication has
not been submitted to, or settled by any other international human rights
mechanism. The Respondent State on the other hand submits that the amicable
settlement concluded between the parties renders the case settled.
88.
The Commission notes that it discontinued consideration of the present
Communication at its 39th Ordinary Session at the request of the Complainant on
the understanding that an amicable settlement had been reached between the
parties. The Commission further notes that the requirement for the Complainant
to discontinue proceedings before the Commission was one of the terms of the
amicable settlement reached between the parties.
89.
However, because the Respondent State failed to respect its own part of the
bargain, the Complainant requested that the Commission should continue with
the consideration of the matter. Despite repeated requests from the Commission
for the Respondent State to furnish it with information on the steps it had taken
to meet the terms of the amicable settlement, no response has been received to
date. In the present circumstances, the Commission considers that the
Respondent State did indeed fail to respect the terms of the amicable settlement.
90.
The question that therefore needs to be answered is whether a failed amicable
settlement between parties to a Communication before the Commission can
constitute a settled matter in terms of Article 56 (7) of the African Charter?
91.
This Commission has held in Communication 260/02 – Bakweri Lands Claims v.
Cameroon that “the principle behind the requirement under this provision of the
African Charter is to desist from faulting member states twice for the same
alleged violations of human rights. This is called the ne bis in idem rule (also
7 Ibid.
8 Jawara v. The Gambia (n 5 above), para 32.
9 As above, para 33.
15
known as the principle or prohibition of double jeopardy, deriving from criminal
law) and ensures that, in this context, no state may be sued or condemned more
than once for the same alleged violation of human rights.”10
92.
The Commission notes that in this case, the Commission is the international
human rights mechanism before which the matter was brought, and that it had
not taken any decision on the admissibility or merits of the case before the
request for discontinuance was made. Its decision noting the will of the parties to
settle their dispute amicably cannot be confused with a decision on the
admissibility or merits of the case and cannot as such be considered to have been
settled in terms of Article 56 (7), especially in a situation where one of the parties
has failed to respect the terms of the settlement.
93.
The Commission considers that the Respondent State’s argument that the matter
has been settled in terms of Article 56 (7) is not tenable, because the State failed to
respect the terms of the settlement on the basis of which the Commission had
discontinued consideration of the Communication. For an amicable settlement
agreed upon between the parties to be conclusive and in accordance with Article
56 (7), and as such constitute a case which has been settled, the parties must
comply with the terms of the amicable settlement. The Respondent State has not
given any justification for its silence or inaction for over six years concerning the
granting of a broadcasting licence to Radio Freedom FM, and this cannot be
fulfilment of its part of the amicable settlement.
94.
The Commission therefore concludes that the prolonged silence and inaction of
the Respondent State in granting Radio Freedom FM a broadcasting licence,
which was one of the main terms of the amicable settlement, is a refusal by the
Respondent State to honour its commitments and a violation of the amicable
settlement concluded between the parties. This amounts to the nonimplementation of the amicable settlement which qualifies the case as one which
has not been settled by the parties.
95.
In view of the foregoing, the Commission declares the Communication
admissible.
Merits
Complainant’s Submission on the Merits
10 Communication 260/02 - Bakweri Lands Claims vs. Cameroon (2004) ACHPR para 52.
16
Alleged violation of Article 9 in conjunction with Article 1
96.
The Complainant alleges a violation of Article 9 of the Charter, in conjunction
with Article 1. The Complainant submits that the Respondent State’s monopoly
on broadcasting, the lack of an independent licensing authority and fair
procedures, as well as the arbitrary denial of access to radio broadcasting violate
Article 9 and Article 1 of the Charter.
97.
The Complainant submits that the effective State monopoly on broadcasting
which ended, at least in law, through the adoption of Decree 2000 was in
violation of Article 9 of the African Charter. The Complainant avers that the
Government deliberately failed to adopt the enabling regulations to Law 1990 on
private broadcasting. The Complainant further alleges that in an attempt to
enforce the ban on private broadcasting, the Government made threats of
prosecution and of confiscation of the equipment while Radio Sawa was
broadcasting from November 1999 to April 2000.
98.
The Complainant submits that the Minister of Communication cannot be deemed
an “independent regulatory body,”11 “adequately protected against
interference… of a political nature”12 as provided for in the Commission’s
Declaration of Principles on Freedom of Expression in Africa (the Declaration on
Freedom of Expression). The Complainant highlights that the Minister of
Communication is a member of the Government appointed by the President. The
Minister is further advised in making licensing decisions by a group of technical
experts. The Complainant submits that the technical experts group, being
composed only of representatives of executive agencies serving in their official
capacity, cannot be deemed to be independent from the Government. The
Complaint further submits that the National Communication Council (Conseil
National de la Communication) was only properly established in 2013.
99.
According to the Complainant, the total control by the Government results in
arbitrary and politically motivated licensing decisions. In support of this
allegation, the Complainant again alludes to a past encounter where the Minister
hinted to the Victim’s political and professional background as a reason for
refusing to license Freedom FM, a general current affairs radio. The Minister is
alleged to have described Freedom FM with Mr Njawe at its helm as a ”Molotov
cocktail”.
11 Principle V of the Declaration of Principles on Freedom of Expression in Africa.
12 Principle VII of the Declaration of Principles on Freedom of Expression in Africa.
17
100.
The Complainant submits that the rules governing the licensing process are not
established by law. The Complainant avers that the 1990 law delegated to the
executive the entire regulation of the “conditions and modalities of allocation
and exploitation of licences” (Article 36(3)), while the 2000 Decree regulates only
the procedural aspects of the licensing regime, without providing any limitations
on the Minister’s discretion.
101.
The Complainant submits that this goes against the principle of international
human rights law, that restrictions on fundamental rights and freedoms,
including freedom of expression must be set by law. The Complainant highlights
the Minister of Communication’s informal practice of issuing simple
authorisations to broadcast at designated frequencies, rather than full-fledged
licences, which the Complainant finds has no basis in Cameroonian law and
cannot therefore be considered a restriction that is “prescribed by law”.
102.
The Complainant submits that the licensing procedures in the Respondent State
are neither fair nor transparent and fail to ensure diversity in broadcasting. A
number of reasons are advanced to back this argument: the legal framework fails
to determine the criteria for making licensing decisions; the Minister of
Communication systematically fails to act on license application within the legal
deadline or provide any reasons for refusal to grant licenses; there are strong
indicators that licensing decisions are politically motivated; and refusals or silent
refusals are not subject to judicial review or any other form of public scrutiny.
103.
The Complainant alleges that the discretionary power granted to the Minister to
make the final decision on the granting of licences gives the Cameroonian
Government the power to control the information that reaches the public
through the airwaves, thus violating the principle of pluralism in broadcasting.
104.
The Complainant submits that the Government’s denial of a broadcasting license
to Freedom FM is arbitrary, as no good reason has been provided for the denial.
105.
The Complainant submits that the denial of the licence and the seizure of the
equipment equates to a prior restraint of legitimate Communication in violation
of Article 9.
106.
The Complainant avers that the current situation in Cameroon where the State
has failed to adopt adequate ‘legislative or other measures’ to give effect to the
rights guaranteed in Article 9 is in violation of Article 1 of the Charter.
Alleged violation of Article 2
18
107.
The Complainant alleges discrimination based on political grounds. The
Complainant contests the Respondent State’s claim that the refusal to grant the
license was due to failure from Le Messager to submit the necessary papers, which
the Complainant avers is incorrect.
108.
The Complainant avers that the rejection of the license was on the specific basis
that the Victim would not be allowed to operate a current affairs radio that
comments on the general socio-political developments in the country. In support
of this argument, the Complainant points to the Minister of Communication
allegedly hinting to the Victim that his political and professional background
was the reason for the refusal of a radio-license.13
109.
The Complainant further avers that the Minister ultimately refused to grant a
license even for a radio that would primarily cover urban development issues.
According to the Complainant, this creates a strong presumption of political bias
and it is incumbent on the Cameroonian authorities to prove that their decisions
were not politically motivated.
Alleged violation of Article 14
110.
The Complainant alleges that the sealing off of the radio equipment deprived Le
Messager of its right to have access to, maintain and dispose of its property, and
that it constituted an unreasonable and disproportionate encroachment on the
right to property.
111.
The Complainant further alleges that the equipment, which was particularly
sensitive to the humidity and general climate of Douala, suffered persistent and
irreparable deterioration due to the Victims’ inability to maintain it in
appropriate conditions. The Complainant submits that Le Messager continued to
pay rent on the sealed premises where the equipment was located until the
premises were unsealed in July 2005.
112.
The Complainant alleges that the encroachment was done without any due
process of law and under no appropriate laws.
113.
The Complainant avers that the authorities had no reason to seize the equipment
as Freedom FM had not started broadcasting and had expressed its intention not
to do so until the issue of the licence was resolved. The Complainant adds that
the equipment was held in defiance of the urgent request by the Commission on
13 The Complainant refers to a meeting that took place between the Minister of Communication and the
Victim on 26 May 2003. Footnote 39 of the Complainant’s submissions on the merits.
19
15 July 2004, requesting that “provisional measures be taken to ensure that no
irreparable damage is done to the equipment of Radio Freedom FM”.
114.
The Complainant submits that the pecuniary damage alone includes:
i.
The value of the seized radio equipment, amounting to 110,000USD at
2003 exchange rates, which was damaged beyond repair;
ii.
Continued rent paid for the premises where the seized equipment was
located between April 2003 and July 2005;
iii.
Payments to radio technicians or the installation of the equipment;
iv.
Lawyer’s fees and other legal costs incurred in relation to the court’s
proceedings brought to recover possession of the seized equipment and
obtain a broadcasting license;
v.
Loss of earnings from their investment since May 2003.
Respondent State’s Submission on the Merits
Alleged violation of Articles 1, 2 and 9
115.
In its submission, the Respondent State argues that none of the rights covered
under Articles 1, 2, 9 and 14 of the Charter have been violated by Cameroon.
116.
The Respondent State submits that the author has not characterized the
discrimination suffered by indicating the companies which have submitted
demands under the same conditions as the Victim and whose demands have
been accepted.
117.
In response to the Complainant’s argument on the violation of Article 9, the State
refers to Article 12 of the 2000 Decree which sets out the modalities of creation
and exploitation of audio-visual enterprises. The State contends that in the case
of Radio Freedom, the licence was refused due to an incomplete application. The
State maintains that the Complainant was invited to complete the application
through letters dated 15 June 2006, 04 May 2007 and 21 August 2008, but that the
Complainant did not follow-up on the matter.
Alleged violation of Article 14
118.
In response to the Complainant’s argument on the violation of Article 14, the
State submits that the sealing off of the radio equipment followed the illegal
20
exploitation of an audio-visual enterprise in violation of Article 36 (2) of Law
1990, which provides that “the establishment and operation of a private radio or
television broadcasting enterprise shall be subject to obtaining a licence”. The
State affirms that the sealing off of the equipment cannot be interpreted as a
violation of the right to property.
Respondent State’s Submission on Amicable Settlement
119.
The Respondent State submits that since the signature of the amicable settlement
of 24 June 2005, the State has striven to implement its commitments under the
agreement. It adds that it particularly: put an end to all legal proceedings against
Pius Njawe in the Court of First Instance of Douala-Bonanjo; removed the seals
placed on the premises of Freedom FM Radio Station; and was disposed to
examine the application for the said radio station as shown by the various letters
addressed to the developer to complete the application file.
120.
The Respondent avers that “although the process of implementing the terms of
the agreement was fraught with misunderstandings, the Government constantly
showed its readiness to have the matter settled amicably.”
Analysis of the Commission on the Merits
121.
Before analysing the Merits of the Complaint, the Commission would first like to
examine the issue of amicable settlement. Rule 109 of the Commission’s 2010
Rules of Procedure provides that the Commission may offer its good offices for
an amicable settlement between the parties “at any stage of the examination of a
Communication”.
122.
In this case, an amicable settlement agreement was signed by both parties on 24
June 2005, leading the Complainant to request that consideration of the
Communication be discontinued via a letter dated 27 June 2006. On 20 April
2007, unsatisfied by the progress under the amicable settlement, the Complainant
asked the Commission to reopen the Communication procedure.
123.
Clearly, the parties were given a reasonable opportunity to reach an amicable
settlement. The Commission finds that to grant a second attempt at an amicable
settlement, as requested by the Respondent, would simply result in further
delays in the examination of this Communication which was first submitted in
2004.
21
124.
The Commission also notes that the Complainant has expressly stated that
amicable settlement “is no longer effective and… would no longer constitute an
amicable solution on the issue based on the respect of human rights and
fundamental freedoms, as recognized by the Charter.”14
125.
For these reasons, the Commission considers that an invitation to reach an
amicable settlement would not be appropriate in this case. The Commission will
therefore proceed to examine the merits of the present Communication.
Alleged violation of Article 9
126.
Article 9 of the Charter guarantees the right of every individual “to receive
information” and to “express and disseminate his opinions within the law”. The
Declaration on Freedom of Expression adopted by the Commission in 2002 to
supplement Article 9 of the African Charter, affirms that freedom of expression
and information, including the right to seek, receive and impart information and
ideas, through any form of communication is a fundamental and inalienable
human right and an indispensable component of democracy.15
127.
The Complainant avers the violation of Article 9 of the Charter due to: the State
monopoly on broadcasting; lack of an independent licensing authority and lack
of fair procedures; and the arbitrary denial of access to radio broadcasting.
State monopoly on broadcasting
128.
The Complainant avers that at least until April 2000, when it adopted Decree
2000/158, the Respondent State had in place an effective State monopoly on
broadcasting that violated Article 9 of the Charter. The Complainant adds that
the Respondent State maintained a policy banning all private broadcasting
during that period.
129.
The Complainant submits that Principle V of the Declaration on Freedom of
Expression provides that “state monopoly over broadcasting is not compatible
with the right to freedom of expression”. The Complainant further cites legal
14 Correspondence from the Complainant dated 20 April 2007.
15 Principle I (1) of the Declaration of Principles on Freedom of Expression in Africa. This Declaration was
adopted by the Commission pursuant to Article 45 (1) (b) of the African Charter which mandates the
Commission “to formulate and lay down, principles and rules aimed at solving legal problems relating
to human and peoples’ rights and fundamental freedoms upon which African Governments may base
their legislation”; and Article 45 (3) which mandates the Commission to interpret all the provisions of
the African Charter.
22
provisions and case law to support its assertion that state monopoly over
broadcasting is not compatible with the right to freedom of expression.16
130.
Although the Respondent State does not engage on this issue in its submissions,
the Commission notes that at the time of submission of this Communication by
the Complainant in 2004, the State monopoly was no longer in force as the
secondary legislation required to implement the liberalised regime of Law 1990 –
Decree 2000, had already been promulgated.
131.
In the instant case, therefore, the Commission declines to pronounce itself on the
Complainant’s allegations of state monopoly in the Respondent State, since the
complained-of situation had ceased to exist at the time when this
Communication was filed. The Commission however wishes to reiterate
Principle V of the Declaration on Freedom of Expression which encourages
diverse and independent private broadcasting and discourages monopoly over
broadcasting due to its incompatibility with the right to freedom of expression.
Lack of an independent licensing authority and lack of fair procedures
Lack of an independent licensing authority
132.
The Complainant submits that the licensing authority (the Minister of
Communication) is not independent and impartial, and that the licensing
decision is arbitrary and politically motivated. The Respondent State does not
address the allegations regarding the independence and impartiality of the
Minister of Communication.
133.
The Declaration on Freedom of Expression states that “an independent
regulatory body shall be responsible for issuing broadcasting licences and for
ensuring observance of licence conditions.”17 Principle VII of the Declaration
further states that “[a]ny public authority that exercises powers in the areas of
broadcast or telecommunications regulation should be independent and
adequately protected against interference, particularly of a political or economic
nature.” General Comment No. 34 on the freedoms of opinion and expression by
the Human Rights Committee (General Comment No. 34) further recommends
16 The Complainant refers to the following case law: Informationsverein Lentia and Others v Austria (1997)
ECHR (Application No.17207/90); Fourth Television Case 73 BVerfGE 118 (1986); Capital Radio (Pvt) Ltd.
V. Minister of Information (2000) ZLR 243 (S); and Retrofit (Pvt) Ltd. V. Minister of Information (1996) 4
LRC 512.
17 Principle V (2) of the Declaration of Principles on Freedom of Expression in Africa.
23
that States “establish an independent and public broadcasting licensing
authority.”18
134.
In the instant Communication, pursuant to Law 1990 and Decree 2000, the
Minister of Communication has the authority to grant broadcasting licenses,
upon the advice of the Conseil National de la Communication and a technical
committee comprised of representatives of executive bodies acting in their
official capacity. The final decision however rests with the Minister who is not
required by law to follow the opinion of either the technical committee or the
Conseil National de la Communication. The Minister is appointed by the President
and is a member of the Executive.
135.
In light of the above, the Commission is of the view that the Minister of
Communication cannot be deemed “an independent regulatory body” in
accordance with Principle V (2) of the Declaration, nor is the Minister
“adequately protected against interference, particularly of a political… nature” in
line with Principle VII (1).
Rules and procedures are not established by law
136.
The Complainant submits that the rules and practices governing the licensing
process are not established by law, in contravention of the international human
rights principle that restrictions on fundamental laws and freedoms must be set
by law. The Respondent State submits that licence application files are subject to
rules, in particular Article 12 of Decree 2000 which relates to the content of the
file that needs to be submitted to the Minister of Communication in order to
obtain a licence.
137.
The Commission takes note of Article 27 (2) of the Charter which establishes
certain restrictions in the exercise of the rights and freedoms enshrined in the
Charter. Further, Article 9 of the Charter guarantees freedom of expression
“within the law”, and Principle II (2) of the Declaration on Freedom of
Expression provides that any restrictions on freedom of expression shall be
provided by law, serve a legitimate interest and be necessary in a democratic
society. The Commission recalls that in Nigeria Constitutional Rights Project v
Nigeria, it stated that the justification of limitations must be strictly proportionate
18 Human Rights Committee, General Comment No.34. Article 19: Freedom of Opinion and Expression,
(2011) para 39.
24
with and absolutely necessary for the advantages which follow, and that
limitations may not erode a right such that the right itself becomes illusory.19
138.
The Commission deems it necessary to first identify whether the licensing
process is a restriction on fundamental freedoms, and if so, whether the
restriction is provided by law, serves a legitimate interest and is necessary in a
democratic society. In making this determination, the Commission refers to the
jurisprudence of the European Court of Human Rights (ECHR) in line with
Articles 60 and 61 of the African Charter which establish the importance of
international and regional human rights instruments and standards, as
benchmarks for the application and interpretation of the African Charter.
139.
In determining whether the licensing process is a restriction on fundamental
freedoms, the Commission recalls the vast jurisprudence of the ECHR holding
that refusal to grant a broadcasting licence interferes with freedom of expression,
namely the right to impart information and ideas. 20 The Commission therefore
finds that refusal to grant a broadcasting licence constitutes a
restriction/interference on the exercise of the right to freedom of expression.
140.
On whether the interference is provided by law, serves a legitimate interest and
is necessary in a democratic society, the Commission refers to Meltex v. Armenia,
where the ECHR held that, first, in order to determine whether a denial of a
broadcasting licence was “prescribed by law”, the interference must have some
basis in domestic law and the law should be… formulated with sufficient
precision… to foresee, to a degree that is reasonable… the consequences which a
given action may entail.21 Second, the domestic law must afford a measure of
legal protection against arbitrary interferences by public authorities. The ECHR
stated that it would be contrary to the basic principles of a democratic society for
legal discretion to be granted to the executive… in terms of an unfettered
power.22 The law should therefore indicate the scope of any such discretion
conferred on the competent authorities and the manner of its exercise with
Communications 140/94-141/94-145/95- Constitutional Rights Project, Civil Liberties Organisation and
Media Rights Agenda v Nigeria (1999) paras 41, 42.
20 Informationsverein Lentia and Others v Austria (1997) ECHR (Application No.17207/90) para 27; Radio
ABC v. Austria (1997) ECHR (Application No. 19736/92) para 27; Demuth v. Switzerland (2002) ECHR
(Application No. 38743/97) para 30 and Glas Nadezhda EOOD and Anatoliy Elenkov v Bulgaria (2007)
ECHR (Application No. 14134/02) para 42.
21 Meltex Ltd and Mesrop Movsesyan v. Armenia (2008) ECHR (Application No. 32283/04) para 80. See also,
Maestri v. Italy (2004) ECHR (Application No.39748/98) para 30.
22 Meltex v. Armenia above, para 81.
19
25
sufficient clarity, having regard to the legitimate aim of the measure in question,
to give the individual adequate protection against arbitrary interference.23
141.
The ECHR further held that as regards licensing procedures, the manner in
which the licensing criteria are applied in the licensing process must provide
sufficient guarantees against arbitrariness, including the proper reasoning by the
licensing authority of its decisions denying a broadcasting licence.24
142.
In light of the above, in the instant Communication, to determine whether the
interference is provided by law, the Commission will first examine if the
interference has a basis in domestic law and if it is formulated with sufficient
precision to foresee the consequences which a given action may entail. The
Commission will also examine if the domestic law affords legal protection
against arbitrary interferences by the licensing authority, including the proper
reasoning of decisions to deny a broadcasting licence.
143.
Beyond indicating that licence application files are subject to Article 12 of Decree
2000 which relates to the composition of the licensing dossier, the Respondent
State does not engage with the issue of whether the licensing rules and
procedures are “provided by law, serve a legitimate interest and are necessary in
a democratic society”.
144.
The Commission finds that Article 12 of Decree 2000 only lists the procedural
requirements for the composition of the licensing dossier, and is silent on the
substantive criteria for the allocation of a licence. There is no further indication in
the law as to the requirements applied by the Minister of Communication, the
Conseil National de la Communication or the Technical Committee to accept or
reject an application following the receipt of the dossier.25
145.
The Commission also finds that the law places no restriction on the discretion of
the Minister, as there is no indication that the Minister must follow the opinion of
either the Technical Committee or the Conseil National de la Communication. The
Minister has the ultimate power to decide on applications for a licence. Further,
23 As above.
24 As above.
25
Article 5 of the 1991 Windhoek Declaration states that “[l]icensing processes for the allocation of
specific frequencies to individual broadcasters should be fair and transparent, and based on clear
criteria which include promoting media diversity in ownership and content.” (The Windhoek
Declaration was issued at a conference organized by UNESCO held from 29 April to 3 May 1991 on
promoting an independent and pluralistic African press). General comment No. 34 on Freedoms of
Opinion and Expression provides that a fair and transparent licensing process should be objective, clear
and non-discriminatory. See General Comment No.34 (n 18 above) para 39.
26
the Minister needs not justify any decision taken contrary to the opinion of those
two bodies, and is not required to provide any reasoning on a decision to grant
or deny a broadcasting licence.
146.
The Commission agrees with the Complainant that the practice of issuing simple
authorisations to broadcast, rather than licences, is not provided by law. Decree
2000 provides that the consequence of an application for a licence entails the
acceptance or rejection thereof, and not the grant of a simple authorisation to
broadcast. The Respondent State does not address this issue. The Commission
finds that simple authorisations have no basis in domestic law and do not allow
applicants for a licence to foresee, to a degree that is reasonable, the
consequences of their applications.
147.
In the present Communication, as a result of the shortcomings in Decree 2000
and the Minister’s practice of issuing simple authorisations, the Commission
finds that the interference on the Victim’s freedom of expression is not provided
under domestic law with sufficient precision to foresee to a degree that is
reasonable the consequences of the Victim’s actions, nor does the interference
afford the Victim sufficient protection against arbitrary interference by the
Minister. The Victim had no protection from the arbitrary processing of his
broadcasting licence application, and had no recourse to challenge what could be
described as the de facto denial of his application. The interference is therefore not
provided by law.
148.
Having determined above that the interference is not provided by law, the
Commission now examines whether it serves a legitimate interest and is
necessary in a democratic society. In this regard, the Commission again refers to
Meltex v. Armenia, in which the ECHR held that:
“a licensing procedure whereby the licensing authority gives no reasons for its
decisions does not provide adequate protection against arbitrary interferences by
a public authority with the fundamental right to freedom of expression… [T]he
interferences with the [applicant’s] freedom to impart information and ideas,
namely the [multiple] denials of a broadcasting licence, did not meet the
Convention requirement of lawfulness. That being so, it is not required to
determine whether these interferences pursued a legitimate aim and, if so,
whether they were proportionate to the aim pursued.”26
26 Meltex Ltd and Mesrop Movsesyan v. Armenia (n 21 above) paras 83 – 84.
27
149.
In the same vein, the Commission, in the instant Communication, finds that the
interferences with the Victim’s freedom of expression do not meet the
requirement of lawfulness under Article 9 (2) of the African Charter and
Principle II (2) of the Declaration on Freedom of Expression. The Commission
therefore need not examine whether these interferences pursued a legitimate aim
and were necessary in a democratic society.
Licensing processes are not fair nor transparent
150.
The Complainant alleges that the licensing process in the Respondent State is
neither fair nor transparent and fails to ensure diversity in broadcasting. The
Complainant refers to gaps in the legal framework for making licensing
decisions, the failure of the licensing authority to grant licenses within the legal
deadline or provide reasons for granting or refusing licenses, the inability to
subject refusal or silent denials to judicial review, and indicates that decisions are
politically motivated. The Respondent State does not address these allegations.
151.
The Commission has already analysed Decree 2000 and found that the
interferences therein do not meet the requirement of lawfulness. It has also found
that one of the short-comings of Decree 2000 is the unlimited discretion granted
to the licensing authority, including the lack of reasoning for the authority’s
decision to grant or deny a licence.
152.
Concerning the failure of the Minister of Communication to revert to the Victim
within the six (6) months deadline on his licence application, the Commission is
of the view that the purpose of a deadline in the grant of licenses is to allow for
speedy decisions and afford prospective broadcasters certainty over the outcome
of their applications. Deadlines prevent protracted decision-making and help
ensure that the licensing process provides an effective rather than theoretical
access to the airwaves. The licensing process must not be used as a stalling
mechanism against diversity in broadcasting.
153.
With regards to the inability of prospective applicants to have recourse to a
judicial review, the Commission reiterates that in a democratic society, any legal
discretion granted to the executive cannot be an unfettered power.27 The law
must indicate with sufficient clarity the scope of the discretion and the manner of
27 This is supported by Principle VII (3) of the Declaration of Principles on Freedom of Expression in Africa
which provides that “[a]ny public authority that exercises powers in the areas of broadcast or
telecommunications should be formally accountable to the public through a multi-party body”.
28
its exercise. The law must also provide adequate and effective safeguards against
abuse, which may include the judicial review of decisions.
154.
As stated under paragraph 80 of this Communication, the legal framework for
broadcasting in the Respondent State does not provide recourse against the
decision of the Minister of Communication if he fails to grant a broadcasting
license within the statutory six months’ period. The law also does not indicate
any remedies for the Minister’s inaction and whether or not the Minister’s silence
should be legally considered as either acceptance or rejection. The law grants an
unfettered discretion to the Minister to the extent that the latter is not obliged to
justify his decision. 28
155.
The Commission finds that in the present case the failure of the Minister of
Communication to act within the legal deadline, and the inability to subject
refusal or silent denial of licences to judicial review indicate that the licensing
process is indeed not fair nor transparent. It also does not promote diversity in
broadcasting.29 These amount to a violation of Article 9 of the Charter.
Access to radio broadcasting arbitrarily denied
Licence application arbitrarily denied
156.
The Complainant alleges the arbitrary denial of a broadcasting licence to Radio
FM.
157.
The facts, which have not been contested by the Respondent State, indicate that
Le Messager first applied for a broadcasting licence on 29 October 2002, and that
on 21 May 2003, almost seven months after filing the application, it received a
written response that “the actual state of the review of your [license application]
does not allow us to authorise you to start broadcasting.” On 23 May 2003, Radio
28 See also paragraph 83 of this Communication which notes the steps taken by Le Messager to challenge
the Minister’s action on the sealing of its premises by instituting civil proceedings in the Douala Court
of First Instance and later the Court of Appeal, but to no avail.
29 Principle III of the Declaration of Principles on Freedom of Expression in Africa provides that “[f]reedom of
expression imposes an obligation on the authorities to take positive measures to promote diversity
[including pluralistic access to the media]”. In Stefano v. Italy, the European Court of Human Rights
observed “that to ensure true pluralism in the audio-visual sector in a democratic society, it is not
sufficient to provide for the existence of several channels or the theoretical possibility for potential
operators to access the audio-visual market. It is necessary in addition to allow effective access to the
market so as to guarantee diversity of overall programme content, reflecting as far as possible the
variety of opinions encountered in the society at which the programmes are aimed.” See S.R.L. and Di
Stefano v. Italy (2012) ECHR (Application no. 38433/09) para 130.
29
FM’s equipment and premises were sealed by the army and police, on the order
of the Minister of Communication. Upon the suggestion of the Minister, Le
Messager filed amendments to the initial application on 3 June 2003, changing the
name and programming nature of the radio. Le Messager was informed that it
would have to identify another location outside Douala, as the radio market in
Douala was saturated. Two new sites 60 km west of Douala were proposed. Le
Messager never received formal notification from the Minister afterwards.
158.
The Respondent State does not refute the above-stated facts in its submissions,
all of which occurred before the attempt at amicable settlement on 24 June 2005.
It however denies the arbitrary treatment of application files, noting that licence
applications are subject to rules, particularly Article 12 of Decree 2000 relating to
the content of licence application files. It adds that the Decree lays down the
terms and conditions for the establishment and operation of audio-visual
communication enterprises.
159.
The Respondent State submits that the June 2006 report of the Conseil National de
la Communication indicates that Freedom FM Radio was not granted a licence
because its application file was incomplete.
160.
According to information provided by both Parties, in the process of amicable
settlement, the Victim was informed of missing documents in his dossier and
was invited by a letter dated 15 June 2006 to complete his dossier by providing
the same.30 However, the submissions as to what happened next differs. The
Complainant claims that the required documents were submitted and provides
the Commission with a cover letter dated 30 June 2006 attesting the same. The
document provided to the Commission however does not contain the requested
documents in annex but is stamped by the Minister of Communication as having
been received on 18 July 2006. The Respondent State on the other hand submits
that the requested documents were not provided by the Victim and that the
request was reiterated in correspondences dated 4 May 2007 and 21 August 2008.
The Respondent State however does not provide copies of the said follow-up
correspondences.
161.
The Commission observes that the Minister did not communicate his decision on
the Victim’s initial licence application within the statutory time-limit, nor did the
30 The Respondent State avers that the Victim was requested to submit: les statuts notariés de la radio;
l’attestation d’ouverture d’un compte bancaire au nom de la radio; et un acte de désignation de son
Directeur de publication (the notarized articles of association of the radio station, the attestation of
opening a bank account in the name of the radio station, and the instrument of appointment of its
publisher). See page 3 of the Respondent State’s Submissions on the Merits.
30
Minister officially communicate his decision on the licence after the Victim filed
amendments to the initial application changing the programming and name of
the radio station, as well as proposing a new location, pursuant to the Minister’s
recommendation. These allegations are not contested by the Respondent State
and are indeed included in the Respondent’s submissions as facts before
commencement of the amicable settlement process in June 2005. The Commission
further notes that the Respondent State has not provided proof of the abovestated letters following up on the missing documents required to grant the
Victim a licence in accordance with the amicable settlement agreement. The
Commission notes that the Complainant produced a cover letter dated 30 June
2006 transmitting the requested documents, which was stamped by the Minister
of Communication as having been received on 18 July 2006. The Commission
therefore finds the allegations of the Respondent State regarding the failure of
the Victim to provide the missing documentation unsubstantiated.
162.
With due consideration to the facts of this Communication, particularly relating
to the delays, lack of response, and the numerous demands imposed by the
Minister of Communication on the Victim, which have not been contested by the
Respondent State, the Commission is of the view that the Victim would not have
received an unbiased response to his licence application. Further, as elaborated
above, the Respondent State was not able to substantiate its argument that the
Minister denied Le Messager’s application for a licence because the Victim did not
provide the necessary documents, nor did it present other justifications for the
denial. For these reasons, the Commission finds that the decision to deny the
licence application by Le Messager was arbitrary. This amounts to a violation of
Article 9 of the Charter.
Denial amounts to prior censorship
163.
The Complainant avers that the denial of the broadcasting licence in a
discriminatory and arbitrary manner amounted to prior restraint of legitimate
communication. The Respondent State does not engage on this issue.
164.
Prior restraint is an interference "by censorship or injunction before the words
are spoken or printed."31 Further, “[i]n contrast to a system of subsequent
punishment, which permits the communication but imposes a subsequent
31 Douglas Blount Maggs, Selected Essays on Constitutional Law (1938), 1030.
31
penalty for its publication, prior restraints prevent communication from
occurring in the first place.”32
165.
The Commission again draws inspiration from other regional and international
standards further to Articles 60 and 61 of the African Charter, and refers to the
American Convention on Human Rights which bans prior restraint, by
specifically stating that freedom of thought and expression shall not be subjected
to prior censorship.33 The Convention adds that “[t]he right of expression may
not be restricted by indirect methods or means, such as the abuse of government
or private controls over newsprint, radio broadcasting frequencies, or equipment
used in the dissemination of information, or by any other means tending to
impede the communication and circulation of ideas and opinions.” In the same
vein, the Inter-American Commission on Human Rights (IACHR)’s Declaration
of Principles on Freedom of Expression holds in Principle 5 that, “[p]rior
censorship (…) exerted upon any expression, opinion or information transmitted
through any means of oral, written, artistic, visual or electronic Communication
must be prohibited by law”.
166.
The Complainant refers to a number of cases where prior restraint was deemed
an affront to freedom of expression, including the ECHR cases of Observer and
Guardian v. United Kingdom and Gaweda v Poland, as well as the United States
Supreme Court cases of Nebraska Press Association v Stuart and the New York
Times v United States. These cases however dealt with print media and other
publications.
167.
While noting the above-stated provisions and case law, the Commission finds it
appropriate to examine whether the standards of prior restraint in publications
can be applied wholly in the context of radio broadcasting. The Commission
refers to General Comment No. 34 which states that “[r]egulatory systems should
take into account the differences between the print and broadcast sectors… while
also noting the manner in which various media converge.”34
168.
The Commission notes that there is a fundamental difference between print
media and radio broadcasting. First, there are limitations in the frequencies
Council of Europe “‘Prior Restraints’ and Freedom of Expression: The Necessity of Embedding
Procedural Safeguards in Domestic Systems” Thematic factsheet 1 (May 2018) p. 1, available at
https://rm.coe.int/factsheet-prior-restraints-rev25may2018/16808ae88c.
33 It provides an exception on public entertainments [within the law] for the moral protection of
childhood and adolescence. See Article 13 (2) and (3) of the American Convention on Human Rights.
34 General Comment No. 34 (n 18 above) para 39.
32
32
available for radio broadcasting.35 This process should therefore be controlled in
order to avoid overcrowding of the airwaves, and to ensure fair, equitable and
diverse allocation of frequencies. States may therefore require radio broadcasters
to obtain a licence, and some licence applications may be denied.36
169.
Second, as held by the European Commission of Human Rights in Betty Purcell
and others v. Ireland, “radio and television are media of considerable power and
influence. Their impact is more immediate than that of the print media, and the
possibilities for the broadcaster to correct, qualify, interpret or comment on any
statement made on radio or television are limited in comparison with those
available to journalists in the press.”37 In Stefano v. Italy, the Court stated that
audio-visual media, such as radio and television, have the power to convey
messages through sound and images, and therefore have a more immediate and
powerful effect than print. It added that “[t]he function of television and radio as
familiar sources of entertainment in the intimacy of the listener’s or viewer’s
home further reinforces their impact.”38
170.
The Commission finds that in the case of radio licensing, the lawful denial of a
licence may constitute an acceptable form of prior restraint on freedom of
expression. However, as stated in preceding paragraphs, the licensing process
must provide sufficient guarantees against arbitrariness, including the provision
of a proper reasoning by the licensing authority on decisions to deny a
broadcasting licence. The Commission has already found that one of the shortcomings of Decree 2000 is the unlimited discretion granted to the licensing
authority, including the unavailability of a reasoned decision or the opportunity
to challenge the decision.39 The Commission has also held above that the licence
to Le Messager was arbitrarily denied. In view of the particular circumstances of
the present case, the arbitrary denial of a licence to the Victim amounts to an
impermissible prior restraint.
35 General Comment No. 34 recognises audiovisual terrestrial and satellite services as media with limited
capacity of broadcasting, and recommends that licensing regimes should provide for an equitable
allocation of access and frequencies between public, commercial and community broadcasters. As
above.
36 See paragraph 13 of this Communication which states that the Minister of Communication informed Le
Messager that the Douala radio market is saturated and that City FM would have to transmit from a
location outside Doula.
37 Betty Purcell and others v. Ireland (1991) European Commission of Human Rights (Application No.
15404/89) p. 14.
38 Stefano v. Italy (n 29 above) para 132.
39 See para 151 and footnote 28.
33
171.
In conclusion, the Commission finds that the Respondent State has violated
Article 9 of the Charter because it lacks an independent licensing authority and
the licensing procedures are neither fair nor transparent, and therefore fail to
promote diversity in broadcasting. The Commission also holds that the
broadcasting licence of Le Messager was arbitrarily denied and thereby
constituted an impermissible prior restraint in violation of Article 9 of the
Charter.
Alleged violation of Article 2
172.
Article 2 of the Charter states that “[e]very individual shall be entitled to the
enjoyment of the rights and freedoms recognized and guaranteed in the present
Charter without distinction of any kind such as race, ethnic group, colour, sex,
language, religion, political or any other opinion, national and social origin,
fortune, birth or other status.”
173.
In the present Communication, the Complainant claims that the Victim’s
application for a broadcasting licence was rejected because of his political
opinion in violation of Article 2 of the Charter.
174.
In its initial submissions, the Complainant indicates that: the Victim is a
prominent activist for media freedom; he established Le Messager Newspaper
which is outspoken and independent; he has been arrested thirty times since
1990, forced into exile and imprisoned three times for weeks or months; and Le
Messager and its satirical sister, Le Messager Popoli have been banned and seized,
and their staff have been arrested and prosecuted, on numerous occasions.
175.
The Complainant recounts a statement allegedly made by the Minister of
Communication in a Meeting with the Victim on 26 May 2003, that “Le Messager
would not be allowed to run a general current affairs radio because of its record
of critical and independent-minded journalism”, and that “Pius Njawe plus
Freedom FM equals a [political] Molotov cocktail in Cameroon”. The
Complainant further submits that the Victim was requested to change the name
and programming nature of the radio.
176.
The Complainant alleges that “the national police headquarters in Yaoundé sent
a representative to testify that the police had suspicions that Le Messager was
conspiring to use Freedom FM to overthrow the government.
177.
To further substantiate the allegations of political discrimination of broadcasters
in the Respondent State, the Complainant submits that Radio Veritas, Equinoxe
34
Television, Radio Equinoxe, and Magic FM 94 Radio Station, were shut down
without due process because of their political coverage.40
178.
In its initial submissions, the Complainant avers that the Minister simply
allocates frequencies to broadcasters that it generally deems to be politically
innocuous to the current government. In this regard, the Complainant states that
on 27 May 2003, the Minister of Communication passed Decision No. 012
allocating frequencies to fourteen (14) radios in the capital Yaounde and ten
radios in Douala without granting them a proper licence.41
179.
The Complainant submits that these facts create a strong presumption of political
bias, and it is therefore incumbent upon the Cameroonian authorities to prove
that their decisions were not politically motivated.
180.
In its submissions, the Respondent State does not refute or address the abovestated allegations. The Respondent does not contest the presumption of political
bias on the part of the licensing authority which the Complainant contends is the
reason why the Victim’s licence was arbitrarily denied. 42 Yet, as was held by the
the Inter-American Court on Human Rights (IACrtHR), where there is an
allegation of discrimination, it is up to the authority restricting the right to prove
that the decision to restrict the right did not have discriminatory purpose or
effect.43
181.
The Commission has already found that the Respondent State’s argument that
the Victim was denied a licence because he failed to provide missing
documentation is unsubstantiated. The Respondent State has failed to rebut the
presumption that flows from the facts and submissions of the Communication.
More specifically, the Respondent State has failed to show that the licensing
authority’s refusal to grant the Victim a broadcasting licence was not due to the
40 The Complainant cites the case of Radio Veritas, a Douala-based radio of the Catholic Church, which
never received a response to its licence application of 2001 until November 2003, amid speculations that
Cardinal Christian Tumi of Douala, an outspoken critic of the government, might run against President
Paul Biya in the elections. The Complainant states that the Minister of Communication authorised the
radio to operate only after the Cardinal publicly declared that he had no intention of running. (See para
14 of this Communication). The Complainant submits that the Douala-based Equinoxe Television and
its sister station Radio Equinoxe, as well as the Yaounde-based Magic FM were shut down between 26
to 28 February 2008, because of their coverage of the debates on the constitutional amendments
proposed by the President to remove presidential term limits. See para 17 of the Complainant’s
Additional Submissions on Admissibility.
41 See para 15 of this Communication.
42
The Respondent only contests the allegations made post the amicable settlement attempt in June 2005,
regarding the documentation needed to grant a broadcasting licence to the Victim.
43 Granier et al. (Radio Caracas Television) v. Venezuela IACrtHR (2015) para 228.
35
Victim’s political and professional background, by presenting other justified
reasons. The Commission agrees that the submissions made by the Complainant
do indeed create a strong presumption of political bias.
182.
In its submissions, the Respondent State argues that the Complainant has not
characterised the alleged discrimination by indicating the list of audio-visual
communication enterprises whose applications submitted under the same
conditions as the Victims were favourably considered.
183.
In Kenneth Good v Botswana, the Commission employed the following test to
determine whether a violation of the principle of non-discrimination occurred: a)
equal cases are treated in a different manner; b) a difference in treatment does
not have an objective and reasonable justification; and c) if there is no
proportionality between the aim sought and the means employed.44
184.
On the first test of whether equal cases are treated in a different manner, the
Commission will consider the Parties’ submissions regarding the manner in
which the Minister of Communication administers applications for a
broadcasting licence. In addition to substantiating the arbitrary manner in which
the Victim was denied a licence, the Complainant submits that the licensing
process is generally politically motivated, and describes the circumstances under
which certain broadcasters were allegedly shut down or denied a licence because
of their political opinions.45 The Complainant also states that the Minister simply
allocates frequencies to broadcasters he deems to be politically harmless to the
government and refers to the Minister’s Decision No. 012 allocating frequencies
to radio stations in Yaounde and Douala.46
185.
The Respondent State has not contested the above submissions, and the
Commission finds that these submissions create a presumption that equal cases
are treated in a different manner.
186.
With regards to the remaining two tests, on whether the difference in treatment
has an objective and reasonable justification, and if there is proportionality
between the aim sought and the means employed, the Commission has already
determined in earlier paragraphs that the Respondent State has failed to present
an objective and reasonable justification for the differential treatment of the
Victim’s licence application.47 In Kenneth Good v Botswana, the Commission stated
44 Communication 313/05- Kenneth Good v Botswana (2010) ACHPR para 219.
45 See para 177 above.
46 See para 178 above.
47 See para 181 above.
36
that “if the aim sought cannot be identified and justified… then it means that the
means employed was not proportional”.48 In light of these, the Commission finds
that all aspects of the test to establish discrimination have been met.
187.
Regarding the Respondent State’s request for the Complainant to prove the
alleged discrimination by indicating the list of audio-visual communication
enterprises whose applications submitted under the same conditions as the
Victims’ were favourably considered, the Commission notes that the applicable
principle in this regard relates to comparing the position of the complainant
against that of a comparator. In this regard, the Commission recalls its
jurisprudence in Equality Now and EWLA v. Ethiopia in which it reaffirmed the
basis upon which a successful claim may be made in respect of allegations of
discrimination. The Commission stated that “[t]he complainant must identify the
comparator and show how the treatment complained of and that of the
comparator are comparable.”49 The Commission however recognises that
difficulties may be encountered in the identification of comparators, and that
therefore, there can be exceptions to the use of comparators.50
188.
The Commission notes that the Complainant has already cited the publicly
available information which it could reasonably be expected to possess, such as
the names of broadcasters which were shut down on account of their political
coverage, and Decision No. 012 by the Minister of Communication allocating
frequencies to radios in Yaounde and Douala. Clearly, the Complainant may
identify a comparator only to the extent of the information available to it.
189.
The Commission notes that in claims of discrimination, the burden of proof
should be shared. The Complainant is required to present sufficient facts from
which it can be presumed that discrimination may have occurred, after which the
burden of proof shifts to the Respondent.51 In D.H. and others V. The Czech
Republic, the ECHR noted that applicants may have difficulty in proving
discriminatory treatment and that less strict evidential rules should apply.52 The
48 Kenneth Good v Botswana (n 46 above) para 224.
49 Communication 341/2007 - Equality Now and Ethiopian Women Lawyers Association (EWLA) v. Federal
Republic of Ethiopia (2015) ACHPR para 147.
Kevin Kitching (ed), Non-Discrimination in International Law: Handbook for Practitioners (2005) pp. 116 – 118.
51 European Court of Human Rights & European Union Agency for Fundamental Rights “Handbook on
European Non-discrimination Law” (2010) p. 123 – 124.
52 D.H. and Others v. the Czech Republic (2007) ECHR (Application no. 57325/00) para 186.
50
37
ECHR added that “proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions of fact.”53
190.
In the present Communication, the Complainant cannot reasonably be expected
to be in possession of the list of all audio-visual communication enterprises
whose applications, submitted under the same conditions as the Victims’ were
favourably considered. However, considering the unrebutted facts as presented
by the Complainant and the failure by the Respondent State to present any
justification for the differentiated treatment of the Victim, it is clear that the
Complainant has identified a comparator to the extent of the information
available to it. In this instance, the Commission is satisfied that the information
provided by the Complainant fulfils the comparator requirement.
191.
From all the foregoing, the Commission finds that it is reasonable to conclude
that the Victim was indeed discriminated based on his political opinion.54
192.
In light of all the above considerations, the Commission finds that the
Respondent State has violated Article 2 of the African Charter.
Alleged violation of Article 14
193.
The Complainant alleges that the sealing off of the Freedom FM equipment
violated the right to have access to, maintain and dispose of ones’ property.
194.
Article 14 of the Charter reads: “The right to property shall be guaranteed. It may
only be encroached upon in the interest of public need or in the general interest
of the community and in accordance with the provisions of appropriate laws.”
195.
The right to property encompasses two main principles. The first one is of a
general nature. It provides for the principle of ownership and peaceful
enjoyment of property. The second principle provides for the possibility and
conditions of deprivation of the right to property. Article 14 of the Charter
recognises that States are in certain circumstances entitled, among other things,
to limit the use of property in accordance with the public or general interest, by
enforcing such laws as they deem necessary for the purpose.
196.
In Media Rights Agenda v Nigeria, the Commission held that the sealing of the
premises of several publications were done without due process and in violation
of Article 14 of the Charter. The Commission stated that:
53 As above, para 178.
54 See paras 174 – 179 above.
38
“[t]he Government did not offer any explanation for the sealing up of the
premises of many publications. Those affected were not previously accused in a
court of law of any wrongdoing. The right to property necessarily includes a
right to have access to property of one's own and the right not for one's property
to be removed. The decrees which enabled these premises to be sealed and for
publications to be seized cannot be said to be 'appropriate' or in the interest of
the public or the community in general.”55
197.
In Ivcher Bronstein v. Peru, IACrtHR found Peru in violation of the Victim’s right
to property, reasoning that there is no evidence or argument to confirm that the
restriction was based on reasons of public utility or social interest, adding that
“when a procedure is conducted in violation of the law, the corresponding legal
consequences should also be considered illegal.”56
198.
The Commission reiterates that limitations on the use of property must be in
accordance with the public or general interest, by enforcing such laws as they
deem necessary for the purpose. The Commission notes that Article 36 (2) of
Law 1990 requires a radio broadcaster to obtain a licence before it can be deemed
established and commence operation. Further, Article 49 of Decree 2000 provides
that in case of non-compliance with the conditions of the Decree, the Minister of
Communication may, after a formal notice has remained without effect, and
without prejudice to the penalties provided by the laws and regulations in force,
suspend a licence for a period not exceeding six (6) months, or issue a definitive
withdrawal of the licence if the holder has not remedied the cause of suspension.
199.
The Complainant’s argument that Freedom FM had not yet started broadcasting
and had no intention to do so until the licence issue was resolved does not hold
in view of Le Messager’s advertisement of 15 May 2003, announcing that the radio
will begin broadcasting on 24 May 2003.
200.
However, the Minister’s power to unilaterally ban a radio station and to request
the army to seal the premises of such a station is not provided by law (Law 1990
and Decree 2000).57 The Commission further recalls its finding that the
restrictions placed by Decree 2000 do not meet the requirement of lawfulness,
particularly due to the Minister’s unlimited discretion in the licencing procedure.
55 Communications 105/93, 128/94, 130/94 and 152/96- Media Rights Agenda, Constitutional Rights Project,
Media Rights Agenda and Constitutional Rights Project v Nigeria (1998) ACHPR para 77.
56 Ivcher Bronstein v. Peru (2001) IACrtHR para 130.
57 See para 198 above.
39
The Commission also notes that Media Freedom FM was not previously accused in
a court of law prior to the sealing off, nor was the sealing off court ordered.
201.
In light of the above, the Commission finds that the order to seal the premises of
Radio Freedom FM was unlawful and therefore in violation of Article 14. It is
unnecessary for the Commission to consider whether the sealing off was in
accordance with public interest.
Alleged violation of Article 1
202.
The Complainant alleges that the Respondent State is in violation of Article 1.
Article 1 of the Charter requires States to give effect to the rights, duties and
freedoms enshrined in the Charter through the adoption of “legislative or other
measures”. The Complainant argues that the Respondent State has failed to
adopt adequate legislative or other measures to give effect to the rights
guaranteed by Article 9 of the Charter.
203.
In considering the alleged violation of Article 1, the Commission notes its
decision in Jawara v The Gambia where it held that “Article 1 gives the Charter the
legally binding character always attributed to international treaties of this sort.
Therefore a violation of any provision of the Charter automatically means a
violation of Article 1.”58
204.
The Commission also notes its decision in Amnesty International v Sudan, where it
stated that “ratification obliges a State to diligently undertake the harmonization
of its legislation to the provisions of the ratified instrument.”59 The Commission
further stated that “Article 1 of the Charter confirms that the Government has
bound itself legally to respect the rights and freedoms enshrined in the Charter
and to adopt legislation to give effect to them.”60
205.
In light of the above, the Commission finds that by failing to take the necessary
legislative and other measures to guarantee the right to freedom of expression,
the right to be free from discrimination and the right to property, the Respondent
State is in violation of Article 1 of the African Charter.
Reparations
58 Jawara v. The Gambia (n 5 above), para 46.
59 Communications 48/90, 50/91, 52/91, 89/93- Amnesty International, Comité Loosli Bachelard, Lawyers'
Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan (1999)
ACHPR, para 40.
60 As above, para 42.
40
206.
The Complainant requests pecuniary damages caused to the Victim, as well as
compensation for moral damages (anxiety, uncertainty, humiliation etc.) suffered
as a result of the violation of the Victim’s rights.61
207.
The Complainant requests damages for the value of the seized radio equipment,
amounting to 110,000 USD at 2003 exchange rates, which deteriorated and was
damaged beyond repair as the Victim was not able to access or maintain it;
payment for the continued rent paid for the premises where the seized
equipment was located between April 2003 and July 2005; payments to radio
technicians for the installation of the equipment; lawyers’ fees and other legal
costs incurred in relation to the court proceedings brought to recover possession
of the seized equipment and obtain a broadcasting license; and loss of earnings
from their investment since May 2003.
208.
In its findings on Article 14, the Commission has determined that the Victim’s
right to property was violated. The Commission notes that the Respondent State
does not refute the Complainant’s submissions on the value of the equipment
and its damage beyond repair.
209.
In accordance with the established jurisprudence of the Commission, the
violation of rights protected by the Charter entitles victims to damages, including
monetary remedy.62
210.
In the instant Communication, the Victim, who is now deceased and being
represented by his next of kin, has suffered substantial prejudice. As noted by the
Commission in Open Society Justice Initiative v. Côte d’Ivoire, “the main aim of the
redress is founded on the restitutio in integrum principle which requires that the
victim is reinstated in the situation prior to the violation. Where it is impossible
to reinstate him, any violation will be resolved through compensation. On the
other hand, it should be ensured that the redress is fair, adequate, effective,
sufficient, appropriate, victim-friendly and proportionate to the prejudice
suffered.”63
211.
The Commission is guided by this principle in making the below determination
and request.
Decision of the Commission on the Merits
61 See paras 94 – 95 of the Complainant’s Submissions on the Merits.
62 Communication 318/06 – Open Society Justice Initiative v. Côte d’Ivoire (2015) ACHPR, para 198.
63 As above, para 199.
41
212.
In light of the foregoing, the African Commission on Human and Peoples’
Rights:
I.
Finds the Respondent State in violation of Articles 1, 2, 9 and 14 of the African
Charter;
II.
Requests the Respondent State to take all necessary measures to ensure that
Law No. 90/052 on Freedom of Social Communication of 19 December 1990, Decree
No. 2000/158 Establishing the Conditions and Modalities for the Creation and
Operation of Private Audio-visual Communication Enterprises, and all other
broadcasting laws and practices are brought into conformity with Article 9 of
the African Charter and the Declaration of Principles on Freedom of
Expression in Africa;
III.
In accordance with the Complainant’s request under paragraph 114 of this
Communication, calls on the Respondent State to pay the next of kin of the
Victim adequate material compensation including the following:
i.
The value of the seized radio equipment, amounting to 110,000 USD at
2003 exchange rates, which was damaged beyond repair;
ii.
Continued rent paid for the premises where the seized equipment was
located between April 2003 and July 2005;
iii.
Payments made to radio technicians for installation of the equipment;
iv.
Lawyer’s fees and other legal costs incurred in relation to the court’s
proceedings brought to recover possession of the seized equipment
and obtain a broadcasting license;
v.
Loss of earnings from the investment since May 2003;
IV.
Further calls on the Respondent State to pay compensation to the Victim’s
next of kin for the moral damages suffered by the Victim as a result of the
violation;
V.
In assessing the manner and mode of payment of compensation under
paragraph 200 (III) and (IV) above, calls on the Respondent State to consult
the Victim’s next of kin and the legal representatives, and to be guided by
international norms and practices relating to payment of compensatory
damages;
VI.
Requests the Parties to inform the Commission, within one hundred and
eighty (180) days, of the measures taken to implement the present decision in
42
accordance with Rule 112 (2) of the Rules of Procedure of the Commission;
and
VII.
Avails its good offices to facilitate the implementation of this decision.
Adopted during the 25th Extra-Ordinary Session of the African Commission on
Human and Peoples’ Rights, held from 19 February to 5 March 2019, in Banjul, The
Gambia
Commissioner Soyata Maïga, Chairperson;
Commissioner Lawrence Murugu Mute, Vice-Chairperson, Rapporteur of
Communication;
Commissioner Yeung Kam John Yeung Sik Yuen;
Commissioner Kayitesi Zainabo Sylvie;
Commissioner Jamesina Essie L. King;
Commissioner Solomon Ayele Dersso;
Commissioner Essaiem Hatem;
Commissioner Teresa Manuela; and
Commissioner Rémy Ngoy Lumbu.
43