250/02 : Liesbeth Zegveld and Mussie Ephrem / Eritrea
Summary of Facts
1. The complaint is filed by Dr Liesbeth Zegveld, an international lawyer at a Netherlands based firm
Böhler Franken Koppe De Feijter, and Mr Mussie Ephrem, an Eritean living in Sweden.
2. The complainants allege that eleven (11) former Eritrean government officials, namely, Petros
Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud Ahmed Sheriffo, Berhane Ghebre Eghzabiher,
Astier Feshation, Saleh Kekya, Hamid Himid, Estifanos Seyoum, Germano Nati and Beraki Ghebre
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Selassie were illegally arrested in Asmara, Eritrea on 18 and 19 September 2001 in violation of
Eritrean laws and the African Charter. They were part of a group of fifteen (15) senior officials of the
ruling Peoples’ Front for Democracy and Justice (PFDJ) who had been openly critical of the Eritrean
Government policies. In May 2001, they wrote an open letter to ruling party members criticising the
government for acting in an ‘illegal and unconstitutional’ manner. Their letter also called upon “all
PFDJ members and Eritrean people in general to express their opinion through legal and democratic
means and to give their support to the goals and principles they consider just”. The government
subsequently announced that the eleven individuals mentioned above, on whose behalf the present
complaint is being filed, had been detained ‘because of crimes against the nation’s security and
sovereignty’.
3. The complaint also alleges that the detainees could be prisoners of conscience, detained solely for
the peaceful expression of their political opinions. Their whereabouts is currently unknown. The
Complainants allege that the detainees may be held in some management building between the
capital Asmara and the port of Massawa. They have reportedly not been given access to their families
or lawyers. The Complainants fear for the safety of the detainees.
4. The Complainants state that they have made a request for habeas corpus to the Minister of Justice
of Eritrea. They claim that they could not submit the same to the courts, as the place of detention of
the 11 former officials was unknown. They allege that in the habeas corpus the Eritrean authorities
were asked, among others, to reveal where the 11 detainees were being held, to either charge and
bring them to court or promptly release them, to guarantee that none of them would be ill treated and
that they have immediate access to lawyers of their choice, their families and adequate medical care.
The Complainants allege that no reaction has been received from the Eritrean authorities.
5. Together with their complaint the Complainants submitted a request for provisional measures to
the African Commission in accordance with Article 111 of the Rules of Procedure of the African
Commission.
Complaint
6. The Complainants allege violations of Articles 2, 6, 7(1) and 9(2) of the African Charter.
7. The Complainants pray that should the detainees be tried, the trial should be held in accordance
with international human rights standards and without recourse to the death penalty. They claim that
such a trial should not be before the Special Court, which they allege fails to meet international
standards of fair trial.
Procedure
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8. The complaint was dated 9 April 2002 and received at the Secretariat on 9 April 2002 by fax,
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and on 9 and 11 April 2002 by email.
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9. On 19 April 2002, the Secretariat wrote to the Complainants acknowledging receipt of the
complaint, and informing them that their request for provisional measures was noted and would be
acted upon accordingly.
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10. On 3 May 2002, the African Commission wrote a letter of appeal to His Excellency Issayas
Afewerki, President of the State of Eritrea, respectfully urging him to intervene in the matter being
complained of pending the outcome of the consideration of the complaint before the [African]
Commission.
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11. At its 31 Ordinary Session held from 2 to 16 May 2002 in Pretoria, South Africa, the African
Commission considered the complaint and decided to be seized thereof.
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12. On 20 May 2002, the Ministry of Foreign Affairs of the State of Eritrea responded to the [African]
Commission appeal and confirming to the latter that the alleged victims on whose behalf the complaint
was filed had their quarters in appropriate government facilities, had not been ill-treated, have had
continued access to medical services and that the government was making every effort to bring them
before an appropriate court of law as early as possible.
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13. On 28 May 2002, the Secretariat wrote to the Complainants and the Respondent State of the
[African] Commission’s decision to be seized of the matter and requested them to forward their
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submissions on admissibility before the 32 Ordinary Session of the [African] Commission.
14. The Secretariat of the African Commission forwarded the Ministry’s response to the Chairperson
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of the African Commission on 7 June 2002 and to the Complainants on 18 June 2002.
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15. On 25 October 2002, the African Commission wrote, by way of follow up on its urgent appeal in
the matter, to the Respondent State reminding it that it was the responsibility of the Member State’s
General Prosecutor to bring the accused before a competent court of law in accordance with the rules
guaranteeing fair trial under relevant national and international instruments.
16. The two parties made submissions on admissibility.
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17. At its 33 Ordinary Session held from 15 to 29 May 2003, in Niamey, Niger, the African
Commission heard oral submissions from both parties to the communication and decided to declare
the communication admissible.
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18. On 10 June 2003, the Secretariat of the African Commission wrote informing the parties to the
communication of the African Commission’s decision and requested them to forward their submissions
on the merits of the communication within 3 months.
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19. The Chairperson of the African Commission forwarded a letter dated 10 June 2003 appealing to
His Excellency the President of Eritrea to intervene in this matter and urge the authorities holding the
11 individuals to release them or bring them before the courts in Eritrea.
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20. At its 34 Ordinary Session, held from 6 to 20 November 2003 in Banjul, The Gambia, the
African Commission considered the communication and delivered its decision on the merits.
Law
Admissibility
21. The admissibility of communications brought pursuant to Article 55 of the African Charter is
governed by the conditions stipulated in Article 56 of the African Charter. This article lays down seven
(7) conditions, which must generally be fulfilled by a Complainant for a communication to be declared
admissible.
22. At issue in the present communication is whether the complainants have pursued and exhausted
the domestic legal remedies of Eritrea, and if not, whether the exception to the exhaustion of domestic
remedies rule should apply. This issue of exhaustion of domestic remedies is governed by Article
56.5 of the African Charter and it provides:
“Communications … received by the Commission shall be considered if they are sent after exhausting
local remedies, if any unless it is obvious that this procedure is unduly prolonged.”
23. The rule requiring exhaustion of local remedies has been applied by international adjudicating
bodies and is premised on the principle that the Respondent State must first have an opportunity to
redress by its own means within the framework of its own domestic legal system, the wrong alleged to
have been done to the individual.
24. In determining whether this communication should be declared admissible or otherwise, the
African Commission must have regard to the arguments put forward by the Complainants and the
Respondent State.
25. The Complainants submit they have attempted to exhaust local remedies in Eritrea. They state
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that on 26 November 2001 and on 9 April 2002, they submitted a habeas corpus request through
the Eritrean Minister of Justice asking the Eritrean Authorities to disclose where the 11 detainees were
being held and why. The complainants also requested that the detainees be brought to court and
charged in accordance with the law, however, there was no response to their request. A similar
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request was made on 26 June 2002 (which is after the African Commission was seized of their
complaint) to the Eritrean High Court in Asmara to which there was no reply either.
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26. In her oral submissions during the 33 Ordinary Session of the African Commission, Zegveld
stated that in an attempt to access the local courts, they had requested locally based legal
practitioners (whom she declined to name) to bring the matter before the local courts. However, the
said lawyers later informed her that they would not be able to pursue the detainees’ case in the
domestic courts for fear of persecution by the authorities and for fear of jeopardising their legal
practice.
27. The Complainants further submit that for more than 18 months, the 11 detainees have been held
in detention without formal charges and with no access to their lawyers or families thus rendering them
unable to seek legal or administrative redress. Furthermore, there has been no response from the
government of Eritrea or High Court of Asmara, in relation to the Complainants’ requests of
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26 November 2001 and 9 April 2002.
28. Under the circumstances presented above, the Complainants aver that the requirement to
exhaust local remedies can no longer apply because even where such remedies would have been
existent they have been unduly prolonged in this case.
29. The Complainants refer the African Commission to a decision of the European Court of Human
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Rights in Ocalan v. Turkey where the court held that Ocalan’s isolation and the fact that the Turkish
police obstructed his access to lawyers made it impossible for the applicant to have effective recourse
to a domestic remedy under Turkish Law.
30. In its written submissions, the Respondent State argues that the Complainants addressed
their habeas corpus request to the Minister of Justice who is a member of the Executive branch with
no capacity to address and take decisions on this matter either in substance or in procedure. They
submit that only the judiciary has the authority to take action on any civil, criminal and other issues of
judicial nature including, the matter of habeas corpus.
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31. During the 33 Ordinary Session, the Representative of the Respondent State submitted that to
date the complainants have not submitted themselves to the courts in Eritrea. He informed the African
Commission that he had personally checked with the High Court of Asmara to establish whether the
matter had been brought to the court’s attention but there was no case file on this matter.
32. The Representative of the Respondent State argues that the Complainants’ assertion that they
have not been able to access the domestic courts is speculative. He stated that Zegveld should
accredit herself to the courts in Eritrea to enable her bring this matter before the local courts.
33. The Respondent State further submits that they have been unable to bring the 11 detainees
before a court of law because of the nature of the criminal justice system in Eritrea. The
Representative of the Respondent State informed the African Commission that the criminal justice
system in Eritrea was inherited from Ethiopia and is therefore lacking. Within the High Court of
Asmara, there is only one chamber responsible for handling criminal cases including criminal matters
from the lower courts. As such, the Court’s calendar is highly congested and difficult to manage.
Therefore cases are bound to take time before they are heard by the courts and this is the very reason
for the delay in bringing the matter of the 11 detainees before a court of law.
34. There are exceptions to the rule of exhaustion of domestic remedies and the Complainants have
argued that they could not exhaust the domestic remedies because the domestic legislation of Eritrea
does not afford due process of law for the protection of the rights that have allegedly been violated.
35. At this stage, it should be made clear that, when a person is being held in detention and accused
for committing a crime, the African Commission holds that it is the responsibility of the Member State,
through its appropriate judicial bodies, to bring this person promptly before a competent court of law in
order to enable him/her to be tried in accordance with rules guaranteeing the right to a fair trial in
accordance with national and international standards.
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36. The Inter-American Court of Human Rights in the Velasquez case while interpreting Article 46 of
the American Convention (similar to Article 56.5 of the African Charter) which relates to the issue of
exhaustion of domestic remedies, stated that, for the rule of prior exhaustion of domestic remedies to
be applicable, the domestic remedies of the State concerned must be available, adequate and
effective in order to be exhausted. The Court also opined that where a party raises non-exhaustion of
local remedies because of the unavailability of due process in the State, the burden of proof will shift
to “the State claiming non-exhaustion and it has an obligation to prove that domestic remedies remain
to be exhausted and that they are effective” .
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37. In consolidated communication 147/95 and 149/96 , the African Commission also ruled that
domestic remedies must be available, effective and sufficient; a domestic remedy is considered
available if the petitioner can pursue it without impediment, it is effective if it offers a prospect of
success and it is sufficient if it is capable of redressing the complaint.
38. The African Commission notes that by its own admission, the Respondent State has indicated
that it has not yet put in place structures that would ensure that cases are handled ‘within reasonable
time’. However, the Respondent State goes ahead to assure the African Commission that the
detainees will be brought before a court of competent jurisdiction in due course.
39. The State has a constitutional or statutory requirement to provide an accessible, effective and
possible remedy whereby alleged victims can seek recognition and restoration of their rights before
resorting to the international system for protection of human rights. Such procedures should not be
mere formalities that, rather than enable the realisation of those rights, to the contrary, dilute with time
any possibility of success with respect to their assertion, recognition or exercise.
40. Very clearly, the situation as presented by the Respondent State does not afford due process of
law for protection of the rights that have been alleged to be violated; the detainees have been denied
access to the remedies under domestic law and have thus been prevented from exhausting them.
Furthermore, there has been unwarranted delay in bringing these detainees to justice.
41. For these reasons, the African Commission declares this communication admissible.
Ruling by the African Commission on request by the Respondent State to revisit the decision
on admissibility
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42. The present communication was declared admissible at the 33 Ordinary Session of the African
Commission’s held in May 2003. In response to the African Commission’s request for written
submissions on the merits, the Respondent State in a Note Verbale expressed its dismay at the
African Commission’s decision to declare the matter admissible. They stated that they found the
African Commission’s decision on admissibility unacceptable and therefore requested that the African
Commission revisits its decision on admissibility.
43. Before dealing with the merits of the communication, the African Commission would like to
pronounce itself on the request by the Respondent State to revisit its decision on admissibility.
44. Firstly, it should be noted that the Respondent State did not bring any new element, either on the
facts of the case as considered by the African Commission or on the legal grounds upon which [it] is
making such a request.
45. Secondly, Rule 118(2) of the African Commission’s Rules of Procedure stipulate that:
“If the Commission has declared a communication inadmissible under the Charter, it may reconsider
this decision at a later date if it receives a request for reconsideration….”
The Rules of Procedure do not make provision for the African Commission to revisit its decision once
a communication has been declared admissible. Furthermore, it has been the practice of the African
Commission not to reconsider a decision declaring a communication admissible.
For these reasons the African Commission upholds its decision on admissibility in this matter.
Merits
46. The African Commission delivered its decision on admissibility of this communication at its
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33 Ordinary Session and informed the parties of its decision on 10 June 2003. The Secretariat of
the African Commission further requested the parties to forward their submissions on the merits of the
communication within 3 months. Whereas the Complainants forwarded their written submissions on
the merits of the communication, none were received from the Respondent State. It is an established
principle of the African Commission that where allegations of violations of provisions of the African
Charter go uncontested by the Government concerned, the African Commission must decide on the
facts as given. This principle also conforms to the practice of other international human rights
adjudicatory bodies. In the present communication therefore, the African Commission is left with no
alternative but to proceed and deliver a decision on the merits based on the submissions of the
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Complainants. Although the African Commission has in this decision referred to the oral submissions
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made by the Respondent State during the 33 Ordinary Session, especially as they relate to some
issues that touch upon the merits of the communication, the Respondent State’s failure to present
comprehensive submissions on the merits has been done at its own peril.
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47. By Note Verbale dated 20 May 2002, the Respondent State informed the African Commission
that the 11 persons had indeed been detained for “conspiring to overthrow the legal government of the
country in violation of relevant OAU resolutions, colluding with hostile foreign powers with a view to
compromising the sovereignty of the country, undermining Eritrean national security and endangering
Eritrean society and the general welfare of its people” . The Respondent State further stated that such
detention was in conformity with the criminal code of the country. In their oral submissions made
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during the 33 Ordinary Session in May 2003, the Respondent State further admitted that they had not
at the time brought the 11 detainees before any court of law.
48. The Complainants aver that the 11 persons who were former Eritrean Government officials, had
been openly critical of the Eritrean government policies and as a direct result of their open letter
criticising the government of Eritrea for acting in an illegal and unconstitutional manner, they were
arrested and detained for committing “crimes against the nation’s security and sovereignty” .
49. The Complainants state that the 11 detainees have since September 2001 been held
incommunicado and have never been brought before any courts of law in violation of Article 17(4) of
the Constitution of the State of Eritrea and Article 6 of the African Charter. Article 17(4) of the
Constitution provides that every person who is held in detention must be brought before a court of law
within 48 hours of his arrest and no person shall be held in custody beyond such a period without the
authority of the court.
50. The Complainants submit that the above-mentioned acts by the Respondent State violate Articles
2, 6 and 7(1) of the African Charter.
51. Article 2 of the African Charter provides:
“Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and
guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour,
sex, language, religion, or any other opinion, national or social origin, fortune, birth or other status.”
Article 6 of the African Charter provides:
“Every individual shall have the right to liberty and to the security of his person. No one may be
deprived of his freedom except for reasons and conditions previously laid down by law. In particular,
no one may be arbitrarily arrested or detained.”
Article 7.1 of the African Charter provides:
" 1. Every individual shall have the right to have his cause heard. This comprises [a] The right to an
appeal to competent national organs against acts of violating his fundamental rights as recognised
and guaranteed by conventions, laws, regulations and customs in force; [b] The right to be presumed
innocent until proved guilty by a competent court or tribunal; [c] The right to defence, including the right
to be defended by counsel of his choice; [d] The right to be tried within a reasonable time by an
impartial court or tribunal; "
52. Although Article 6 of the African Charter guarantees the right to liberty and security of the person,
this is not an absolute right because the African Charter allows the deprivation of this right through
lawful means. The African Charter specifically prohibits arbitrary arrests and detention.
53. Evidence before the African Commission indicates that the 11 persons have been held
incommunicado and without charge since they were arrested in September 2001. This fact has not
been contested by the Respondent State. They are being held in custody and have been cut off from
communication with the outside world, with no access to their lawyers or families. Their whereabouts
are unknown putting their fate under the exclusive control of the Respondent State.
54. The African Commission on two occasions wrote letters of appeal to the President of the State of
Eritrea informing him about the communication before the African Commission and requested him to
intervene in the matter to ensure that the 11 persons are removed from secret detention and brought
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before the courts of law in Eritrea. In a Note Verbale dated 20 May 2002, the Ministry of Foreign
Affairs of the State of Eritrea informed the African Commission that the 11 persons were being held in
appropriate government facilities, that they had not been ill-treated and had access to medical
services. The Ministry assured the African Commission that the government was making every effort
to bring them before an appropriate court of law as early as possible. The African Commission notes
that to date it has not received any information or substantiation from the Respondent State
demonstrating that the 11 persons were being held in appropriate detention facilities and that they had
been produced before courts of law.
55. Incommunicado detention is a gross human rights violation that can lead to other violations such
as torture or ill-treatment or interrogation without due process safeguards. Of itself, prolonged
incommunicado detention and/or solitary confinement could be held to be a form of cruel, inhuman or
degrading punishment and treatment. The African Commission is of the view that all detentions must
be subject to basic human rights standards. There should be no secret detentions and States must
disclose the fact that someone is being detained as well as the place of detention. Furthermore, every
detained person must have prompt access to a lawyer and to their families and their rights with
regards to physical and mental health must be protected as well as entitlement to proper conditions of
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detention.
56. The African Commission holds the view that the lawfulness and necessity of holding someone in
custody must be determined by a court or other appropriate judicial authority. The decision to keep a
person in detention should be open to review periodically so that the grounds justifying the detention
can be assessed. In any event, detention should not continue beyond the period for which the State
can provide appropriate justification. Therefore, persons suspected of committing any crime must be
promptly charged with legitimate criminal offences and the State should initiate legal proceedings that
should comply with fair trial standards as stipulated by the African Commission in its Resolution on the
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Right to Recourse and Fair Trial and elaborated upon in its Guidelines on the Right to Fair Trial and
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Legal Assistance in Africa
57. In the present communication, the Respondent State did not provide the African Commission with
any details regarding the specific laws under which the 11 persons were detained but instead
generally states that their detention is in“consonance with the existing criminal code …and other
relevant national and international instruments”. The 11 persons were detained on account of their
political beliefs and are being held in secret detention without any access to the courts, lawyers or
family. Regrettably, these persons’ rights are continually being violated even today, as the Respondent
State is still holding them in secret detention in blatant violation of their rights to liberty and recourse to
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fair trial
58. The Complainants further allege that the 11 persons were arrested and detained because they
expressed opinions that were critical of the Respondent State. The Complainants submit that this
amounts to a violation of Article 9.2 of the African Charter, which provides “every individual shall have
the right to express and disseminate his opinions within the law” .
59. The right to freedom of expression has been recognised by the African Commission as a
fundamental individual human right which is also a cornerstone of democracy and a means of
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ensuring the respect for all human rights and freedoms. Nonetheless, this right carries with it certain
duties and responsibilities and it is for this reason that certain restrictions on freedom of expression
are allowed. However, Article 9.2 as well as Principle II (2) of the Declaration of Principles on Freedom
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of Expression in Africa categorically state that such restrictions have to be provided for by law.
60. It is a well settled principle of the African Commission that any laws restricting freedom of
expression must conform to international human rights norms and standards relating to freedom of
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expression and should not jeopardise the right itself. In fact, the African Charter in contrast to other
international human rights does not permit derogation from this or any other right on the basis of
emergencies or special circumstances.
61. Consequently, if any person expresses or disseminates opinions that are contrary to laws that
meet the aforementioned criteria, there should be due process and all affected persons should be
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allowed to seek redress in a court of law.
62. The facts as presented leave no doubt in the mind of the African Commission that the
Respondent State did indeed restrict the 11 persons’ right to free expression. No charges have been
brought against the 11 persons and neither have they been brought before the courts. Such
restrictions not only violate the provisions of the African Charter but are also not in conformity with
international human rights standards and norms.
Holding
For the above reasons, the African Commission,
Finds the State of Eritrea in violation of Articles 2, 6, 7(1) and 9(2) of the African Charter;
Urges the State of Eritrea to order the immediate release of the 11 detainees, namely, Petros
Solomon, Ogbe Abraha, Haile Woldetensae, Mahmud Ahmed Sheriffo, Berhane Ghebre Eghzabiher,
Astier Feshation, Saleh Kekya, Hamid Himid, Estifanos Seyoum, Germano Nati, and Beraki Ghebre
Selassie; and
Recommends that the State of Eritrea compensates the above-mentioned persons.
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Done at the 34 Ordinary Session of the African Commission held from 6 to 20 November 2003, in
Banjul, The Gambia.
Footnotes
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1. Application No. 46221/99, 12 March 2003.
2. Velasquez Rodríguez Case, Judgement of July 29 1988, Inter-Am.Ct.H.R (Ser.C) No.4 (1988).
3. Consolidated communication 147/95 and 149/96 Sir Dawda K. Jawara/The Gambia
4. [i] Communication 74/92 Commission nationale des droits de l’Homme et des libertés/Chad and 232/99 John
D. Ouko/Kenya.
5. [i]Consolidated communication 143/95, 150/96 Constitutional Rights Project and Civil Liberties
Organisation/Nigeria.
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6. Adopted by the African Commission at its 11 Ordinary Session held from 2 to 9 March 1992 in Tunis,
Tunisia.
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7. Adopted by the African Commission at its 33 Ordinary Session held from 15 to 29 May 2003 in Niamey,
Niger.
8. Consolidated communication 140/94, 141/94, 145/95 Constitutional Rights Project, Civil Liberties Organisation
and Media Rights Agenda/Nigeria; UNHRC Communication 440/1990.
9. Preamble to the Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in
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Africa adopted by the African Commission at its 32 Ordinary Session held from 17 to 23 October 2003 in
Banjul, The Gambia.
10. Principle II(2) of the Declaration of Principles on Freedom of Expression in Africa provides “any restrictions on
freedom of expression shall be provided for by law, serve a legitimate interest and be necessary and in a
democratic society”.
11. [i] consolidated communication 140/94, 141/94, 145/95 Constitutional Rights Project, Civil Liberties
Organisation and Media Rights Agenda/Nigeria.
12. communication 232/99 John Ouko/Kenya.