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SUMMARY OF FACTS
1. On 14th April 2003, the Secretariat of the African Commission received a
communication brought by Article 19 against the State of Eritrea, a State
Party to the African Charter.
2. Article 19 states that it is concerned especially about the continued
detention incommunicado without trial of at least 18 journalists in Eritrea
since September 2001.
3. The 18 journalists who are reportedly detained incommunicado are:
1. Zemenfes Haile, founder and manager of the private weekly Tsigenay;
2. Ghebrehiwet Keleta, a news writer for Tsigenay;
3. Selamyinghes Beyene, reporter for the weekly MeQaleh;
4. Binyam Haile of Haddas Eritrea;
5. Yosef Mohamed Ali, Chief Editor of Tsigenay;
6. Seyoum Tsehaye, Free-lance Editor and photographer and former Director of
Eritrean State Television (ETV);
7. Temesgen Gebreyesus, Reporter for Keste Debena;
8. Mattewos Habteab, Editor of Meqaleh;
9. Dawit Habtemicheal, Assistant Chief Editor, Maqaleh;
10. Medhanie Haile, Assistant Chief Editor, Keste Debena;
11. Fessahye Yohannes (or Joshua) Editor-in-Chief of Setit;
12. Said Abdulkadir, Chief Editor of Admas;
13. Amanuel Asrat, Chief Editor of Zemen;
14. Dawit Isaac, contributor to Setit;
15. Hamid Mohammed Said, ETV;
16. Saleh Aljezeeri, Eritrean State Radio; and
17. Simret Seyoum, a writer and general manager for Setit
4. The Complainants alleges that on August 2001, a dozen senior officials
and other members of the ruling elite, known as the G15 signed a public
letter criticising President Isaias Afewerki's rule. This letter allegedly
generated a political crisis which involved defections, resignations, the
dismissal of top officials, the imprisonment of government critics and
journalists and the cancellation of the general elections that had been
planned for December 2001.
5. The Complainant further alleges that on 18th and 19th September 2001, 11
former Eritrean government officials including former the Vice President
Mahmoud Sherifo and the former Foreign Minister Petros Solomon were arrested
in Asmara.
6. Furthermore, on 18th September 2001, the Eritrean government banned the
entire private press comprising of the following newspapers -: Meqaleh,
Setit, Tiganay, Zemen, Wintana, Admas, Keste Debena and Mana. Subsequently,
many journalists were arrested and detained, including the 18 journalists
who are now being held incommunicado. The reasons given by the government
for these actions ranged from threatening national security to failure to
observe licensing requirements.
7. The Complainant asserts that Hadas Eritrea, a government owned daily
newspaper, is the only publication allowed in the country
8. The Complainant states that on 4th October 2002, they sent appeal letters
to the President of Eritrea and to the Chairman of the African Commission
urging them to ensure the unconditional release or a fair trial of the
detainees. On 12th November 2002, the Complainant sent a letter to the
government requesting information on the detainees and permission to visit
the country and the detainees. Article 19 alleges that all requests sent to
the government have been ignored.
COMPLAINT
9. Article 19 alleges a violation of the following Articles of the African
Charter: Articles 1, 3, 5, 6, 7, 9, 13, 18, and 26 of the African Charter
PROCEDURE
10. By letter dated 21st April 2003, the Secretariat of the African
Commission acknowledged receipt of the communication and informed the
Complainant that the matter had been scheduled for consideration at the 33rd
ordinary session of the African Commission.
11. At its 33rd Ordinary Session held from 15th to 29th May 2003, in Niamey,
Niger, the African Commission considered the communication and decided to be
seized of the matter.
12. On 10th June 2003, the Secretariat wrote informing the parties to the
communication that the African Commission had been seized with the matter
and requested them to forward their submissions on admissibility within 3
months.
13. On 27th August 2003, the Secretariat received a Note Verbale from the
Respondent State requesting the African Commission to advise Article 19 to
exhaust all domestic remedies.
14. On 10th September 2003, Article 19 forwarded by fax its submissions on
admissibility.
15. On 15th September 2003, the Secretariat of the African Commission
acknowledged receipt of the Note Verbale from the Respondent State and the
submissions from the Complainant. The Secretariat of the African Commission
additionally advised the Respondent State to forward its arguments
supporting its assertion that the Complainant had not exhausted domestic
remedies. Article 19 was also reminded to forward a copy of the Decree
banning the entire private press.
16. At its 34th Ordinary Session held from 6th to 20th November 2003 in
Banjul, The Gambia, the African Commission examined the communication and
decided to defer further consideration on admissibility of the matter to its
35th Ordinary Session.
17. On 4th December 2003, the Secretariat of the African Commission wrote to
inform the parties of the African Commission's decision. The Respondent
State was furnished with another copy of the Complainant's written
submissions on admissibility and further reminded to forward its written
submissions on admissibility within 2 months.
18. On 23rd February 2004, the Secretariat of the African Commission
received submissions on admissibility from the Respondent State. The
Secretariat acknowledged receipt of the said submissions and transmitted a
copy of the same to the Complainants on 3rd March 2004.
19. On 17th March 2004, the Secretariat received submissions from the
Complainant in response to the submissions from the State of Eritrea. The
Secretariat of the African Commission acknowledged receipt of the said
submissions and transmitted a copy of the same to the Respondent State on
18th March 2004.
20. At its 35th Ordinary Session held from 21st May to 4th June 2004, in
Banjul, The Gambia, the African Commission examined the communication and
decided to defer further consideration on admissibility of the matter to its
36th Ordinary Session pending receipt of information from the Complainant on
concrete steps taken to access domestic remedies in Eritrea. The parties to
the communication were informed accordingly
21. By Note Verbale and letter dated 15 June 2004 the Respondent State and
the Complainant were respectively informed of the Commission's decision.
22. By letter dated 15th September 2004, the Secretariat of the African
Commission reminded the Complainant to send the information requested by the
African Commission during the 35th Ordinary Session
23. At its 36th Ordinary Session held in Dakar, Senegal from 23rd November
to 7th December 2004, the African Commission considered the communication
and declared it admissible.
24. By Note Verbale of 13th December 2004 and by letter of the same date,
the Secretariat of the African Commission notified the parties of the
African Commission's decision and requested them to submit their arguments
on the merits within three months of the notification.
25. By Note Verbale dated 27th January 2005, the State of Eritrea wrote to
the Secretariat of the African Commission requesting the African Commission
to dismiss the communication on the grounds that: one of the subjects of the
communication had already been dealt in another communication (communication
250/2002) and therefore would constitute a case of double jeopardy, and that
the Complainant had appeared before the African Commission only once despite
repeated requests to ‘face and question the accuser – a legal right which
was denied them'...by the African Commission.
26. By Note Verbale dated 23rd February 2005, the Secretariat of the African
Commission acknowledged receipt of the Respondent State's Note Verbale and
informed the Respondent State that its request would be put before the
African Commission for consideration during the 37th Ordinary Session.
27. By letter dated 24th February 2005, the Secretariat of the African
Commission informed the Complainant that the Respondent State had requested
the African Commission to reconsider its decision on the communication and
declare the latter inadmissible.
28. By letter dated 30th March 2005, the Complainant acknowledged receipt of
the Secretariat's letter of 24th February 2005. The Complainant indicated
that they were of the belief that the African Commission had thoroughly
examined the communication before arriving at the decision on admissibility
and therefore urged the African Commission to consider the communication on
its merits.
29. By letter dated 5th April 2005, the Secretariat of the African
Commission acknowledged receipt of the Complainant's letter of 30th March
2005 and requested it to submit its arguments on the merits or confirm
whether the arguments contained in its complaint were sufficient.
30. By letter dated 13th April 2005, the Complainant acknowledged receipt of
the Secretariat's letter of 5th April 2005 and indicated that in their
earlier submissions they had addressed themselves on the merits the
communication but further indicated that they were available to make oral
submissions on the same.
31. By letter dated 13th April 2005, the Secretariat acknowledged receipt of
the Complainant's letter and informed them that the communication had been
scheduled for consideration at the 37th Ordinary Session of the African
Commission.
32. At its 37th Ordinary Session held in Banjul, The Gambia, the African
Commission deferred further consideration of the communication due to the
absence of the rapporteur of the communication.
33. By Note Verbale and a letter dated 10th June 2005, the Respondent State
and the Complainant were respectively notified of the African Commission's
decision.
34. At its 38th Ordinary Session held from 21st November to 5th December
2005, in Banjul, The Gambia, the African Commission considered the
Respondent State's request that the communication be dismissed but decided
to confirm its decision on admissibility.
35. By Note Verbale and a letter dated 15th December 2005, the Respondent
State and the Complainant were respectively notified of the African
Commission's decision and requested the parties to submit their arguments on
the merits of the communication.
36. On 6th March 2006, the Secretariat of the African Commission wrote to
the parties reminding them to submit their arguments on the merits before
the end of March 2006.
37. By electronic mail dated 3 May 2006, the complainant re-submitted its
arguments on the merits of the communication, which was immediately
communicated to the respondent state for its comments.
38. By Note Verbale dated 19 May 2006, the respondent State submitted its
arguments on the merits of the communication.
39. At its 39th Ordinary Session held from 11th to 25th May 2006, the
African Commission decided to defer consideration of the merits to the 40th
Ordinary Session, in order to allow the Secretariat to consider the parties'
arguments and draft an opinion on the merits.
40. By Note Verbale and letter dated 31st May 2006, the Respondent State and
the Complainant were respectively notified of the African Commission's
decision.
41. By letter dated 17th October 2006 and Note Verbale dated 18th October
2006, the Complainant and the Respondent State respectively were reminded
that the African Commission would consider the merits of the communication
at its 40th Ordinary Session.
42. By Note Verbale and letter dated 10 February 2007, the Respondent State
and the Complainant were respectively notified that the African Commission
had deferred the communication, as it was unable to consider the said
communication at its 40th Ordinary Session because of lack of time. Both the
Complainant and the Respondent State were informed that the communication
would be considered at the 41st Ordinary Session of the African Commission.
THE LAW
ADMISSIBILITY
43. The current communication is submitted pursuant to Article 55 of the
African Charter which allows the African Commission to receive and consider
communications, other than from States Parties. Article 56 of the African
Charter provides that the admissibility of a communication submitted
pursuant to Article 55 is subject to seven conditions. [FN1] The African
Commission has stressed that the conditions laid down in Article 56 are
conjunctive, meaning that if any one of them is absent, the communication
will be declared inadmissible. [FN2]
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[FN1] See art 56 of the African Charter on Human and Peoples' Rights.
[FN2] See African Commission, information sheet 3, communication procedure
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44. The parties to the present communication seem to agree that six of the
conditions set out in Article 56 have been met. They are however in dispute
over the application of one of the conditions – Article 56(5), which
provides that communications relating to human and peoples' rights referred
to in Article 55 received by the African Commission shall be considered if
they "are sent after the exhaustion of local remedies, if any, unless it is
obvious that this procedure is unduly prolonged".
45. The exhaustion of local remedies rule is a principle under international
law of permitting States to solve their internal problems in accordance with
their own constitutional procedures before accepted international mechanisms
can be invoked. The particular State is thus enabled to have an opportunity
to redress the wrong that has occurred there within its own legal order. It
is a well established rule of customary international law that before
international proceedings are instituted, the various remedies provided by
the State should have been exhausted.
46. The African Commission has held in previous communications that for
local remedies to be exhausted, they must be available, effective and
sufficient. In communication Nos. 147/95 and 149/96, the African Commission
held that a remedy is considered available if the Complainant can pursue it
without impediment, it is deemed effective if it offers a prospect of
success, and it is found sufficient if it is capable of redressing the
complaint. [FN3]
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[FN3] Communication 147/95 and 149/96, Jawara v The Gambia [(2000) AHRLR 107
(ACHPR 2000)].
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47. In terms of Article 56(5) therefore, the law on exhaustion of domestic
remedies presupposes: (i) the existence of domestic procedures for dealing
with the claim; (ii) the justiciability or otherwise, domestically, of the
subject-matter of the complaint; (iii) the existence under the municipal
legal order of provisions for redress of the type of wrong being complained
of; and (iv) available effective local remedies, that is, remedies
sufficient or capable of redressing the wrong complained of.
48. The second part of Article 56(5) which is the subject of contention
between the parties provides that a communication shall be considered if
they are sent after the exhaustion of local remedies "...if any, unless it is
obvious that this procedure is unduly prolonged". It follows therefore that
the local remedies rule is not rigid. It does not apply if:
(i) local remedies are inexistent;
(ii) local remedies are unduly and unreasonably prolonged;
(iii) recourse to local remedies is made impossible;
(iv) from the face of the complaint there is no justice or there are no
local remedies to exhaust, for example, where the judiciary is under the
control of the executive organ responsible for the illegal act; and
(v) the wrong is due to an executive act of the government as such, which is
clearly not subject to the jurisdiction of the municipal courts.
ISSUES BEFORE THE AFRICAN COMMISSION
49. The parties to the present case are in dispute over the question of the
exhaustion of domestic remedies in Eritrea and it is therefore for the
African Commission to make a determination on the matter.
50. On the one hand, the State argues that the stipulated requirement in
Article 56(5) has not been fulfilled by the Complainant and that none of the
abovementioned exceptions should therefore apply. On the other hand, the
Complainant alleges that the exception rule in Article 56(5) should apply.
51. Whenever a State alleges the failure by the Complainant to exhaust
domestic remedies, it has the burden of showing that the remedies that have
not been exhausted are available, effective and sufficient to cure the
violation alleged, i.e. that the function of those remedies within the
domestic legal system is suitable to address an infringement of a legal
right and are effective [FN4]. When a State does this, the burden of
responsibility then shifts to the Complainant who must demonstrate that the
remedies in question were exhausted or that the exception provided for in
Article 56(5) ) of the African Charter is applicable.
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[FN4] Inter-American Court of Human Rights, case of Velásquez Rodríguez,
judgment of 29 July 1988, para 63.
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SUBMISSIONS BY THE COMPLAINANT
52. The Complainant in the present communication argues that domestic
remedies are not available and notes that the fact that the victims have
been held for over three years (since September 2001) incommunicado "is a
manifestation of the fact that the administration of justice in Eritrea is
extremely abnormal".
53. The Complainant further points to the fact that Section 17 of the
Eritrean Constitution provides safeguards against the arbitrary arrest and
detention of persons, and the Government of Eritrea has failed to abide by
these safeguards.[FN5] The Complainant claims that the "deliberate failure
of the government to abide by its own Constitutional obligation shows that
it is hopeless and impractical or unreasonable for the detainees to seize
the domestic courts by way of habeas corpus.
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[FN5] See art 17(1) No person may be arrested or detained save pursuant to
due processof law ... (3) Every person arrested or detained shall be
informed of the grounds for his arrest or detention and the rights he has in
connection with his arrest or detention in a language he understands. (4)
Every person who is arrested and detained in custody shall be brought before
the court within 48 hours of his arrest, and if this is not reasonably
possible, as soon as possible thereafter, and no such person shall be
detained in custody beyond such period without the authority of the court.
(5) Every person shall have the right to petition the court for a writ of
habeas corpus. Where the arresting officer fails to bring him before the
court of law and provide the reason for their arrest, the court shall accept
the petition and order the release of the prisoner.
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54. The Complainant further argues that the Executive Branch of Government
in Eritrea interferes in the affairs of the Judiciary thus rendering the
latter's independence and effectiveness suspect. They cite the removal of
the Chief Justice by the President of the Republic when the former allegedly
requested the Executive not to interfere in the Judiciary. The Complainant
noted that "if the Chief Justice could be removed from office for merely
asking the Executive Branch of Government not to interfere with the
independence of the Judiciary, what will happen to any judge who dares to
order the release of the detainees marked out as ‘traitors' and ‘State
enemies' by the highest authority, the President"?
55. The Complainant notes further that the human rights violations
complained of are serious and massive and in terms of the jurisprudence of
the African Commission, such violations do not necessitate the exhaustion of
local remedies.
56. The Complainant concludes by stating that in fact, they had sent a writ
of habeas corpus to the Minister of Justice requesting that the victims be
brought to court but received no response from the Minister, and that they
had requested to visit the victims but were not granted permission by the
responding State.
SUBMISSIONS BY THE STATE
57. The Respondent State in its submission maintains that the Eritrean
Judiciary is independent and that the Complainant should have exhausted
local remedies either directly or through local legal representatives. The
Respondent State submits that it informed the Complainant that they should
take the initiative to approach the courts directly in order to seek justice
for the detainees but no such efforts were made by the Complainant.
58. The Respondent State further submits that the claims by the Complainant
that there is an "information black out" and that the Eritrean Judiciary
lacks independence are unfounded as they are not substantiated by concrete
examples indicating that there has been no interference in the actual work
of the judges and in the dispensation of justice in the country. With
respect to the dismissal of the Chief Justice, the Respondent State argues
that in Eritrea the President appoints the Chief Justice and therefore has
the power to dismiss him. [FN6]
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[FN6] Art 52(1) of the Eritrean Constitution.
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59. Article 52 of the Eritrean Constitution provides for the removal and
suspension of judges. Sub article 1 provides that a judge may be removed
from office before the expiry of his tenure of office by the President only,
acting on the recommendation of the Judicial Service Commission, pursuant to
the provisions of Sub-Article 2 of this Article for physical or mental
incapacity, violation of the law or judicial code of ethics. Sub article 2
provides that the Judicial Service Commission shall investigate whether or
not a judge should be removed from office on grounds of those enumerated in
Sub-Article 1 of this Article. In case the Judicial Service Commission
decides that a judge should be removed from office, it shall present its
recommendation to the President. And Sub article 3 provides that the
President may, on the recommendation of the Judicial Service Commission,
suspend from office a judge who is under investigation. The Stae did not
indicate whether these procedural safeguards had been followed but simply
intimated that the Chief Justice is appointed by the President and can be
dismissed by the President
60. In his oral submission during the 35th Ordinary Session, the
Representative of the Respondent State reiterated that the allegations made
by the Complainant were false and unfounded as they had been made without
any serious attempts by the Complainants to ascertain the facts before
bringing the matter before the African Commission. Furthermore, the
Complainants had not submitted themselves to the courts in Eritrea and as
such it is the responsibility of the Complainant to find ways and means of
utilising the domestic courts prior to bringing the matter before the
African Commission. He reminded the African Commission that all conditions
of Article 56 must be met in order for a matter to be admitted and if any
one of the conditions is not met, the communication must be declared
inadmissible.
61. The Representative of the Respondent State informed the African
Commission that the incarcerated journalists had been arrested by the police
and were being held by executive authorities. However, following
investigation, an administrative decision was reached to release two of the
journalists and that the decision with respect to the remaining incarcerated
journalists would be forthcoming.
62. He conceded that the detainees on whose behalf this communication is
brought have not been brought before a court of law because of the nature of
the criminal justice system in Eritrea. He stated that the criminal justice
system in Eritrea does not have the institutional capacity to handle cases
expeditiously and as such there is huge backlog of cases in all the courts
in the country.
63. The Respondent State further stated that contrary to the claims by the
Complainant that they were not able to visit Eritrea in order to assist the
victims, everyone who was involved in the matter relating to the detained
journalists and the political detainees was invited to Eritrea including the
Complainant who chose not to visit the country.
DECISION OF THE AFRICAN COMMISSION ON ADMISSIBILITY
64. To determine the question of admissibility of this communication, the
African Commission will have to answer, among others, the following
questions:
i. who is required under the African Charter to exhaust local remedies – the
author of the communication or the victim of the alleged human rights
violations?;
ii. does the removal of a Chief Justice render domestic remedies unavailable
and insufficient?;
iii. does the fact that a State has failed to abide by its own laws render
domestic remedies "hopeless, impractical and unreasonable?";
iv. does the communication reveal massive and serious violations of human
and peoples' rights?; and
v. does the continuous incommunicado detention of the victims render
domestic remedies unavailable, ineffective and inefficient?
65. As regards who is required to exhaust local remedies, the African
Charter is clear. It indicates in Article 56(1) that the authors of the
communication must indicate their identity even if they claim anonymity.
This presupposes that domestic remedies are to be exhausted but by the
authors. In the consideration of communications, the African Commission has
adopted an actio popularis approach where the author of a communication need
not know or have any relationship with the victim. This is to enable poor
victims of human rights violations on the continent to receive assistance
from NGOs and individuals far removed from their locality. All the author
needs to do is to comply with the requirements of Article 56. The African
Commission has thus allowed many communications from authors acting on
behalf of victims of human rights violations. Thus, having decided to act on
behalf of the victims, it is incumbent on the author of a communication to
take concrete steps to comply with the provisions of Article 56 or to show
cause why it is impracticable to do so.
66. As regards the removal of the Chief Justice, the Complainant fails to
demonstrate sufficiently how this removal prevented them from approaching
the domestic remedies or how it rendered such domestic remedies unavailable,
ineffective, "hopeless, impractical and unreasonable?" The Independence of
the Judiciary is a crucial element of the rule of law. Article 1 of the UN
Basic Principles on the Independence of the Judiciary [FN7] states that "the
independence of the Judiciary shall be guaranteed by the State and enshrined
in the Constitution or the law of the country. It is the duty of all
governmental and other institutions to respect and observe the independence
of judiciary." Article 11 of the same Principles states that "the term of
office of judges, their independence, security ... shall be adequately
secured by law." Article 18 provides that "Judges shall be subject to
suspension or removal only for reasons of incapacity or behaviour that
renders them unfit to discharge their duties." Article 30 of the
International Bar Association (IBA)'s Minimum Standards of Judicial
Independence [FN8] also guarantees that "A Judge shall not be subject to
removal unless, by reason of a criminal act or through gross or repeated
neglect or physical or mental incapacity, he has shown himself manifestly
unfit to hold the position of judge" and Article 1(b) states that "Personal
independence means that the terms and conditions of judicial service are
adequately secured so as to ensure that individual judges are not subject to
executive control." Article 52 (1) of the Eritrean Constitution provides an
almost similar provision.
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[FN7] Adopted by the seventh United Nations Congress on the Prevention of
Crime and the Treatment of Offenders held at Milan from 26 August to 6
September 1985 and endorsed by General Assembly resolutions 40/32 of 29
November 1985 and 40/146 of 13 December 1985.
[FN8] IBA Minimum Standards of Judicial Independence (adopted 1982).
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67. The issue however is, does the removal of a Chief Justice in a manner
inconsistent with international standards render the judiciary in a State
unavailable and ineffective? The Complainant was simply casting doubts about
the effectiveness of the domestic remedies. The African Commission is of the
view that it is incumbent on the Complainant to take all necessary steps to
exhaust, or at least attempt the exhaustion of local remedies. It is not
enough for the Complainant to cast aspersion on the ability of the domestic
remedies of the State due to isolated incidences. In this regard, the
African Commission would like to refer to the decision of the Human Rights
Committee in A v Australia [FN9] in which the Committee held that "mere
doubts about the effectiveness of local remedies [FN10] or prospect of
financial costs involved did not absolve the author from pursuing such
remedies." The African Commission can therefore not declare the
communication admissible based on this argument.
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[FN9] Communication 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
[FN10] See also L Emil Kaaber v Iceland, communication 674/1995, UN Doc CCPR/C/58/
D/674/1995 (1996). See also Ati Antoine Randolph v Togo, communication 910/
2000, UN Doc CCPR/C/79/D/910/2000 (2003).
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68. As regards the Complainant's argument that the Government has failed to
abide by its own constitutional obligations as provided for in Article 17 of
the Eritrean Constitution. The African Commission is of the view that the
whole essence why human rights violations occur is because Governments fail
to abide by their domestic as well as international obligations. When this
happens, individuals whose rights have been, are being or are likely to be
violated seize the local courts to invoke their rights in order to compel
Governments to abide by these obligations. The Eritrean Constitution
provides ample safeguards against persons who are arrested and detained
without charge or trial. Apart from sub-articles 1, 3, and 4 of Article 17,
sub article 5 of the same article is very instructive. It provides that
"every person shall have the right to petition the court for a Writ of
Habeas Corpus. Where the arresting officer fails to bring him before the
court of law and provide the reason for their arrest, the court shall accept
the petition and order the release of the prisoner".
69. In the instant case therefore, the Complainant could, at the very least,
have seized the local courts by way of a writ of habeas corpus to draw the
court's attention to the constitutional provision they claim the government
has breached. Lawyers often seek the release of detainees by filing a
petition for a writ of habeas corpus. A writ of habeas corpus is a judicial
mandate to an arresting officer ordering that an inmate be brought to the
court so it can be determined whether or not that person is imprisoned
lawfully and whether or not he should be released from custody. A habeas
corpus petition is a petition filed with a court by a person who objects to
his own or another's detention or imprisonment. The writ of habeas corpus
has been described as "the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. [FN11] "It
serves as an important check on the manner in which the courts pay respect
to constitutional rights.
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[FN11] Harris v Nelson, 394 US 286, 290-91 (1969)
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70. The Complainant in their submissions does acknowledge that they did send
a writ of habeas corpus to the Minister of Justice. The African Commission
is of the view that even though it expected the Minister to advise the
Complainant on the proper procedure to follow, the failure to do so does not
constitute a breach of the law. The Ministry of Justice is the same arm of
Government that has failed to "abide by its own constitutional
obligations..."
and it is only the courts that can order it to do so. By sending the writ to
the Minister of Justice, the Complainant cannot claim they were attempting
the exhaustion of domestic remedies as Article 56(5) requires the exhaustion
of legal remedies and not administrative remedies.
71. As regards the argument that the communication reveals serious and
massive violations of human rights, the African Commission would like to
reiterate its earlier decisions in communication Nos. 16/88[FN12], 25/89,
47/90, 56/91, 100/93[FN13], 27/89, 46/91, 49/91, 99/93[FN14] that it [...]
cannot hold the requirement of exhaustion of local remedies to apply
literally in cases where it is impractical or undesirable for the
Complainant to seize the domestic courts in respect of each individual
complaint. This is the case where there are a large number of victims. Due
to the seriousness of the human rights situation and the large number of
people involved, such remedies as might theoretically exist in the domestic
courts are as a practical matter unavailable ..."
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[FN12] Comité Culturel pour la Démocratie au Bénin v Benin [(2000) AHRLR 23
(ACHPR 1995)]. Communication 16/88 concerns the arrest of students, workers
and pupils and their detention without trial (some for several months),
during which they were tortured and maltreated.
[FN13] Free Legal Assistance Group and Others v Zaire [(2000) AHRLR 74 (ACHPR
1995)]. Communication 25/89 alleges the torture of 15 persons by a military
unit, on or about 19 January 1989, in Kinsuka near the Zaire River. On 19
April 1989 when several people protested their treatment, they were detained
and held indefinitely. Communication 47/90 alleges arbitrary arrests,
arbitrary detentions, torture, extra-judicial executions, unfair trials,
severe restrictions placed on the right to association and peaceful assembly,
and suppression of the freedom of the Press. Communication 56/91 alleges the
persecution of Jehovah's Witnesses, including arbitrary arrests,
appropriation of church property, and exclusion from access to education.
Communication 100/93 makes allegations of torture, executions, arrests,
detention, unfair trials, restrictions on freedom of association and freedom
of the press. It also alleges that public finances were mismanaged; that the
failure of the government to provide basic services was degrading; that
there was a shortage of medicines; that the universities and secondary
schools had been closed for two years; that freedom of movement was violated;
and that ethnic hatred was incited by the official media.
[FN14] Organisation Mondiale Contre la Torture and Others v Rwanda [(2000)
AHRLR 282 (ACHPR 1996)]. The communications allege the expulsion of Burundi
nationals who had been refugees without the opportunity to defend themselves
at trial; arbitrary arrests and summary executions; the detention of
thousands of people by the armed forces on the basis of ethnic origin; the
destruction of Tutsi villages and massacre of Tutsi
--------------------------------------------------------------------------------
72. However, as regards the continuous incommunicado detention of the
detainees, the African Commission would like to note the State Party's
acknowledgement that the victims are still being held in detention because
of the poor state of the criminal justice system in the country. With
respect to this argument by the State Party, the African Commission notes
that whenever there is a crime that can be investigated and prosecuted by
the State on its own initiative, the State has the obligation to move the
criminal process forward to its ultimate conclusion. In such cases, one
cannot demand that the Complainants, or the victims or their family members
assume the task of exhausting domestic remedies when it is up to the State
to investigate the facts and bring the accused persons to court in
accordance with both domestic and international fair trial standards.
73. The African Commission would also like to note that the State party has
made a general refutation of the claims alleged and has insisted that
domestic remedies do exist and that the Complainant did not attempt to
exhaust them. The African Commission notes however, that the State party has
merely listed in abstracto the existence of remedies without relating them
to the circumstances of the case, and without showing how they might provide
effective redress in the circumstances of the case. [FN15]
--------------------------------------------------------------------------------
[FN15] Albert Womah Mukong v Cameroon, communication 458/1991, UN Doc CCPR/C/
51/D/458/1991 of 10 August 1994
--------------------------------------------------------------------------------
74. In the instant communication therefore, the fact that the Complainant
has not sufficiently demonstrated that they have exhausted domestic remedies
does not mean such remedies are available, effective and sufficient. The
African Commission can infer from the circumstances surrounding the case and
determine whether such remedies are in fact available, and if they are,
whether they are effective and sufficient.
75. The invocation of the exception to the rule requiring that remedies
under domestic law should be exhausted provided for in Article 56(5) must
invariably be linked to the determination of possible violations of certain
rights enshrined in the African Charter, such as the right to a fair trial
enshrined under article 7 of the African Charter [FN16]. The exception to
the rule on the exhaustion of domestic remedies would therefore apply where
the domestic situation of the State does not afford due process of law for
the protection of the right or rights that have allegedly been violated. In
the present communication, this seems to be the case.
--------------------------------------------------------------------------------
[FN16] Inter-American Court of Human Rights, case of Velásquez Rodríguez
para 91. See in this connection also Judicial Guarantees during States of
Emergency (articles 27.2, 25 and 8 of the American Convention on Human
Rights), advisory opinion OC–/87 of October 6, 1987. Series A Nº 9, para 2
--------------------------------------------------------------------------------
76. Holding the victims incommunicado for over three years demonstrates a
prima facie violation of due process of the law and in particular, Article 7
of the African Charter. By not taking any action to remedy the situation
more than twelve months after the African Commission had been seized of the
communication goes to demonstrate that the State has equally failed to
demonstrate that domestic remedies are available and effective.
77. Another rationale for the exhaustion requirement is that a government
should have notice of a human rights violation in order to have the
opportunity to remedy such violation, before being called to account by an
international tribunal. The African Commission is of the view that the State
has had ample time and notice of the alleged violation to at least charge
the detainees and grant them access to legal representation. However, if it
is shown that the State has had ample notice and time within which to remedy
the situation, even if not within the context of the domestic remedies of
the State, as is the case with the present communication, the State may
still be said to have been properly inform and is expected to have taken
appropriate steps to remedy the violation alleged. The fact that the State
of Eritrea has not taken any action means that domestic remedies are either
not available or if they are, not effective or sufficient to redress the
violations alleged.
78. The African Commission would like in this regard to refer to its
decision in Communication 18/88[FN17] which concerned the detention and
torture of the Complainant for more than seven years without charge or trial,
the denial of food for long periods, the blocking of his bank account, and
the use of his money without his permission. The African Commission held
that in such circumstances it is clear that the State has had ample notice
of the violations and should have taken steps to remedy them. The African
Commission would also like to restate the position taken in communication
250/2002[FN18]. In that communication, the African Commission was of the
view that 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.
--------------------------------------------------------------------------------
[FN17] El Hadj Boubacar Diawara v Benin, July 1988 [Comité Culturel pour la
Démocratie au Bénin v Benin (2000) AHRLR 23 (ACHPR 1995)].
[FN18]Zegveld and Another v Eritrea [(2003) AHRLR 84 (ACHPR 2003)]
--------------------------------------------------------------------------------
79. 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.
80. In the Albert Mukong case, the Human Rights Committee held that "a State
party to the Covenant, regardless of its level of development, must meet
certain minimum standards regarding conditions of detention". [FN19] This
reasoning of the Human Rights Committee can also include the fact that a
State party to the African Charter regardless of its level of development
must meet certain minimum standards regarding fair trial or due process
conditions". The Committee concluded that "the legitimate objective of
safeguarding and indeed strengthening national unity under difficult
political circumstances cannot be achieved by attempting to muzzle ...
democratic tenets and human rights"[FN20].
--------------------------------------------------------------------------------
[FN19] Communication 458/1991 para 9.3.
[FN20] Mukong para 9.7 supra
--------------------------------------------------------------------------------
81. The continuous incommunicado detention of the victims without charge
bars them from any legal representation and makes it difficult for the
Complainant or any person interested in assisting them from attempting
whatever domestic remedies might be available. To leave the detainees to
languish in detention forever because of the inadequacy of the State's
criminal justice system or because there is no one to access the domestic
courts on their behalf would be grossly unjust, if not unfair.
82. In the absence of any concrete steps on the part of the State to bring
the victims to court, or to allow them access to their legal representatives
three years after their arrest and detention, and more than one year after
being seized of the matter, the African Commission is persuaded to conclude
that domestic remedies, even if available, are not effective and/or
sufficient.
For this reason, the African Commission declares the communication
admissible.
DECISION OF THE AFRICAN COMMISSION ON REQUEST BY THE RESPONDENT STATE TO
DISMISS THE COMMUNICATION
83. The present communication was declared admissible at the 36th Ordinary
Session of the African Commission's held in Dakar, Senegal from 23rd
November to 7th December 2004. In response to the African Commission's
request for written submissions on the merits, the Respondent State in a
Note Verbale dated 27th January 2005 wrote requesting the African Commission
to dismiss the communication. The Respondent State's grounds for such
dismissal were that:
1. One of the 18 journalists in this matter had been the subject of another
communication – communication 250/2002 – Zegveld & Ephrem/Eritrea which the
African Commission had already disposed of. The Respondent State therefore
argued that dealing with that person in this matter constitutes double
jeopardy
2. The Complainant had appeared before the African Commission only once
despite repeated requests to ‘face and question the accuser – a legal right
which was denied them'...by the African Commission.
84. In dealing with the Respondent State's request that the communication be
dismissed the African Commission noted that 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..."
85. No provision is made therein for the African Commission to dismiss a
matter after having declared it admissible. In any case, the victims who are
the subject of this communication are still being held in incommunicado
detention by the Respondent State and are accordingly unable to access
domestic remedies whether on their own or through legal representatives. It
is for these reasons that the African Commission has decided not to dismiss
the communication and will therefore consider it on the merits.
DECISION ON THE MERITS
86. The African Commission will not deal with any issue already decided upon
in Communication 250/2002.
87. Eritrea submits that the acts alleged were undertaken "against a
backdrop of war when the very existence of the nation was threatened" and
that, as a result, the Government was "duty bound to take necessary
precautionary measures (and even suspend certain rights)." However, unlike
other human rights instruments [FN21], and as emphasised in Communication
74/92[FN22], the African Charter does not allow States Parties to derogate
from it in times of war or other emergency. The existence of war,
international or civil, or other emergency situation within the territory of
a state party cannot therefore be used to justify violation of any of the
rights set out in the Charter, and Eritrea's actions must be judged
according to the Charter norms, regardless of any turmoil within the State
at the time.
--------------------------------------------------------------------------------
[FN21] For example, the International Covenant on Civil and Political Rights
and the European Convention on Human Rights.
[FN22] Commission Nationale des Droits de l'Homme et des Libertés v Chad
[(2000) AHRLR 66 (ACHPR 1995)], para 21: ‘The African Charter, unlike other
human rights instruments, does not allow for states parties to derogate from
their treaty obligations during emergency situations. Thus, even a civil war
in Chad cannot be used as an excuse by the state violating or permitting
violations of rights in the African Charter.'
--------------------------------------------------------------------------------
88. The complainant alleges, and Eritrea does not deny, that 11 political
dissidents and 18 journalists have been detained, incommunicado and without
trial, since September 2001. It is also alleged by the complainant, and
admitted by the respondent state, that private newspapers were banned from
September 2001. Although Eritrea maintains that this ban was temporary, it
is not clear from the information available whether or when the ban was
lifted.
89. The basic facts are not therefore in dispute. However, the versions of
the parties vary as regards the motivation for the detention of the
individuals concerned and the ban on the press. According to the complainant
the arrests were due to the detainees having expressed their opinions and
spoken out against the Government; the respondent state on the other hand
claims that the 11 political opponents were arrested for breaching Articles
259 (attacks on the independence of the state), 260 (impairment of the
defence powers of the state) and 261 (high treason) of the Transitional
Penal Code of Eritrea. As regards the ban on the press and the detention of
the 18 journalists, the respondent state claims that these occurred because,
"the stated newspapers and the leading editors were recruited into the
illegal network organised for the purpose of ousting the Government through
illegal and unconstitutional means."
90. Eritrea's argument, then, is that its actions were justified by the
circumstances prevailing within its territory during the relevant period,
and permissible under its domestic law. Reference is made to Articles 6 and
9 of the African Charter, the relevant sections of which provide
respectively that:
No-one may be deprived of his freedom except for reasons and conditions
previously laid down by law; and
Every individual shall have the right to express and disseminate his
opinions within the law. [Emphasis added]
91. Such provisions of the Charter are sometimes referred to as "claw-back
clauses," because if "law" is interpreted to mean any domestic law
regardless of its effect, States Parties to the Charter would be able to
negate the rights conferred upon individuals by the Charter.
92. However, the Commission's jurisprudence has interpreted the so-called
claw-back clauses as constituting a reference to international law, meaning
that only restrictions on rights which are consistent with the Charter and
with States Parties' international obligations should be enacted by the
relevant national authorities. [FN23] The lawfulness of Eritrea's actions
must therefore be considered against the Charter and other norms of
international law, rather than by reference to its own domestic laws alone.
[FN24]
--------------------------------------------------------------------------------
[FN23] See for example communication 101/93, Civil Liberties Organisation (in
respect of the Bar Association) v Nigeria [(2000) AHRLR 186 (ACHPR 1995)],
para 16, and communication 212/98, Amnesty International v Zambia, para 50.
[FN24] See communications 147/95 and 149/96, Jawara v The Gambia, paras
57-59.
--------------------------------------------------------------------------------
93. The arrest and detention of the journalists and political opponents is
claimed by the complainant to breach Articles 6 and 7 of the Charter.
Article 6 provides that "no-one shall be arbitrarily arrested or detained."
The concept of arbitrary detention is one which both the Commission and
other international human rights bodies have previously expounded upon. In
the Albert Mukong Case [FN25], the United Nations Human Rights Committee
stated that,
‘Arbitrariness' is not to be equated with ‘against the law' but must be
interpreted more broadly to include elements of inappropriateness, injustice,
lack of predictability and due process of law...remand in custody pursuant to
lawful arrest must not only be lawful but reasonable in all the
circumstances...remand in custody must also be necessary in all the
circumstances.
From this case it can be inferred that an arrest or detention may be legal
according to the letter of domestic law, but arbitrary and therefore illegal
by reason of its inappropriate, unjust or unpredictable nature.
--------------------------------------------------------------------------------
[FN25] Human Rights Committee, communication 458/1991 Albert Mukong v
Cameroon, 10 August 1994, para 9.8
--------------------------------------------------------------------------------
94. The Eritrean detainees have not been charged, or brought to trial. This
in itself constitutes arbitrariness, as the Commission has previously stated.
In Communication 102/93 [FN26], the Commission held that, "where individuals
have been detained without charges being brought...this constitutes an
arbitrary deprivation of their liberty and thus violates Article 6."
--------------------------------------------------------------------------------
[FN26] Constitutional Rights Project and Another v Nigeria [(2000) AHRLR 191
(ACPHR 1998)], para 55.
--------------------------------------------------------------------------------
95. Furthermore, the length of time for which the detainees have been kept
in custody must be considered. Both parties agreed that the arrests occurred
in September 2001. The journalists and political opponents have therefore
been detained, without charge or trial, for a period of over 5 years.
96. Article 7(1)(d) of the Charter provides that all individuals shall have,
"the right to be tried within a reasonable time by an impartial court or
tribunal." The Commission has expanded upon this provision in its Resolution
on the Right to Recourse and Fair Trial, which states that, [FN27] "Persons
arrested or detained shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power and shall be entitled
to trial within a reasonable time or be released."
--------------------------------------------------------------------------------
[FN27] ACHPR /Res.4(XI)92: Resolution on the Right to Recourse and Fair
Trial (1992), para 2(c).
--------------------------------------------------------------------------------
97. The question of what is reasonable cannot be expressed in terms of a
blanket time limit which will apply in all cases, but rather must depend on
the circumstances. This approach has also been espoused by the European
Court of Human Rights, which has held that the reasonableness of the length
of proceedings is to be assessed in accordance with all the circumstances of
a case. The European Court will look in particular at the complexity of the
case, and the conduct of the applicant and of the relevant authorities.
[FN28]
--------------------------------------------------------------------------------
[FN28] Buchholz v Germany, 7759/77 [1981] ECHR 2 (6 May 1981)
--------------------------------------------------------------------------------
98. Eritrea contends that the delay in bringing these particular detainees
to trial is due to the complexity and gravity of the offences committed, and
to the "precarious war situation" existing within the state. However, as
already stated, it must be borne in mind that States Parties cannot derogate
from the Charter in times of war or any other emergency situation. Even if
it is assumed that the restriction placed by the Charter on the ability to
derogate goes against international principles, there are certain rights
such as the right to life, the right to a fair trial, and the right to
freedom from torture and cruel, inhuman and degrading treatment, that cannot
be derogated from for any reason, in whatever circumstances.
99. The existence of war in Eritrea cannot therefore be used to justify
excessive delay in bringing the detainees to trial. Furthermore, a backlog
of cases awaiting trial cannot excuse unreasonable delays, as the European
Court of Human Rights has held. [FN29] Further, in the case of Albert Mukong,
referred to above, the Human Rights Committee stated that States Parties to
the ICCPR must observe certain minimum standards as regards the condition of
detention, regardless of their state of development. The Commission
considers that the same principle applies to the length of detention before
trial, and that states parties to the Charter cannot rely on the political
situation existing within their territory or a large number of cases pending
before the courts to justify excessive delay.
--------------------------------------------------------------------------------
[FN29] Union Alimentaria Sanders SA [v Spain], 7 July 1989, Series A Number
157.
--------------------------------------------------------------------------------
100. Moreover, the detainees are being held incommunicado, and have never
been brought before a judge to face charges. In these circumstances, the
Commission finds that Eritrea has breached the requirement of trial within a
reasonable time set out in Article 7(1)(d). This is consonant with its
previous decisions, such as Communication 102/93 , in which 3 years
detention was found to be unacceptable, and Communication 103/93 [FN30], in
which the Commission stated that 7 years detention without trial, "clearly
violates the ‘reasonable time' standard stipulated in the Charter."
--------------------------------------------------------------------------------
[FN30] Abubakar v Ghana [(2000) AHRLR 124 (ACHPR 1996)] para
--------------------------------------------------------------------------------
101. The fact that the detainees are being held incommunicado also merits
further consideration in terms of international human rights law. The United
Nations Human Rights Committee has directed [FN31] that states should make
provisions against incommunicado detention, which can amount to a violation
of Article 7 (torture and cruel treatment and punishment) of the
International Covenant of Civil and Political Rights, to which Eritrea has
acceded. Furthermore, the Commission itself has stated that, "holding an
individual without permitting him or her to have contact with his or her
family, and refusing to inform the family if and where the individual is
being held, is inhuman treatment of both the detainee and the family
concerned." [FN32]
--------------------------------------------------------------------------------
[FN31] General Comment 20, 44th Session, 1992.
[FN32] Communications 48/90, 50/91, 52/91 and 89/93, Amnesty International
and Others v Sudan [(2000) AHRLR 297 (ACHPR 1999) para 54].
--------------------------------------------------------------------------------
102. Eritrea has not denied the complainant's contention that the detainees
are being held incommunicado, with no access to legal representation or
contact with their families, and as the Commission has enunciated in many of
its previous decisions, where allegations are not disputed by the state
involved, the Commission may take the facts as provided by the complainant
as a given. [FN33] Nor does the political situation described by Eritrea
excuse its actions, as Article 5 permits no restrictions or limitations on
the right to be free from torture and cruel, inhuman or degrading punishment
or treatment. The Commission thus finds that Eritrea has violated Article 5,
by holding the journalists and political dissidents incommunicado without
allowing them access to their families.
--------------------------------------------------------------------------------
[FN33] Communication 74/92, Commission Nationale des Droits de l'Homme et
des Libertés v Chad.
--------------------------------------------------------------------------------
103. In keeping with its earlier decisions on similar cases,[FN34] the
Commission also finds that such treatment amounts to a breach of Article 18,
as it constitutes violation of the rights of both the detainees and their
families to protection of family life. Finally, the Commission holds that
there has been a violation of Article 7(1)(c), since the detainees have been
allowed no access to legal representation, contrary to the right to be
defended by counsel which is protected by that provision of the Charter.
--------------------------------------------------------------------------------
[FN34] See for example communications 143/95 and 150/96, Constitutional
Rights Project and Another v Nigeria [(2000) AHRLR 235 (ACHPR 1999)].
--------------------------------------------------------------------------------
104. The Commission turns its attention now to the question of whether there
has been a violation of the detainees' rights to express and disseminate
their opinions, as alleged by the complainant. The events which give rise to
this allegation are the ban by the Eritrean government of the private press,
and the arrest and detention of the 18 journalists. The respondent State
argues that these actions were justified by the activities of the
journalists and the newspapers in question, which it considered were aimed
at overthrowing the government. Further, the Eritrean government claims that
its actions did not constitute a breach of the Charter, as Article 9 only
protects the expression and dissemination of opinions within the law.
105. As explained above, permitting States Parties to construe Charter
provisions so that they could be limited or even negated by domestic laws
would render the Charter meaningless. Any law enacted by the Eritrean
Government which permits a wholesale ban on the press and the imprisonment
of those whose views contradict those of the Government's is contrary to
both the spirit and the purpose of Article 9. The Commission reiterates its
own statement in Communications 105/93, 128/94, 130/94 and 152/96 [FN35]:
ccording to Article 9(2) of the Charter, dissemination of opinions may be
restricted by law. This does not mean that national law can set aside the
right to express and disseminate one's opinions; this would make the
protection of the right to express one's opinions ineffective. To allow
national law to have precedence over the international law of the Charter
would defeat the purpose of the rights and freedoms enshrined in the Charter.
International human rights standards must always prevail over contradictory
national law. Any limitation on the rights of the Charter must be in
conformity with the provisions of the Charter.
--------------------------------------------------------------------------------
[FN35] Media Rights Agenda and Others v Nigeria [(2000) AHRLR 200 (ACHPR
1998)].
--------------------------------------------------------------------------------
106. By applying norms of international human rights law, the Commission has
previously found, and finds in this case, that the imprisonment of
journalists "deprives not only the journalists of their rights to freely
express and disseminate their opinions, but also the public, of the right to
information. This action is a breach of the provisions of Article 9 of the
Charter." [FN36]
--------------------------------------------------------------------------------
[FN36] Communication 147/95 and 149/96, Jawara v The Gambia [(2000) AHRLR
107 (ACHPR 2000)].
--------------------------------------------------------------------------------
107. Moreover, banning the entire private press on the grounds that it
constitutes a threat to the incumbent government is a violation of the right
to freedom of expression, and is the type of action that Article 9 is
intended to proscribe. A free press is one of the tenets of a democratic
society, and a valuable check on potential excesses by government.
108. No political situation justifies the wholesale violation of human
rights; indeed general restrictions on rights such as the right to free
expression and to freedom from arbitrary arrest and detention serve only to
undermine public confidence in the rule of law and will often increase,
rather than prevent, agitation within a state. The Commission draws on the
findings of the UN Human Rights Committee:
The legitimate objective of safeguarding and indeed strengthening national
unity under difficult political circumstances cannot be achieved by
attempting to muzzle advocacy of multi-party democracy, democratic tenets
and human rights. [FN37]
--------------------------------------------------------------------------------
[FN37] Mukong para 9.7.
--------------------------------------------------------------------------------
FOR THE REASONS GIVEN ABOVE THE COMMISSION
Holds a violation of Articles 1, 5, 6, 7(1), 9 and 18 by the State of
Eritrea;
Urges the government of Eritrea to release or to bring to a speedy and fair
trial the 18 journalists detained since September 2001, and to lift the ban
on the press;
Recommends that the detainees be granted immediate access to their families
and legal representatives; and recommends that the government of Eritrea
takes appropriate measures to ensure payment of compensation to the
detainees. |
|