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.