of Expression in Africa.49 The Complainant argues that the African Commission
has confirmed the fundamental importance of the right to freedom of expression
in many of its decision, citing as examples: Constitutional Rights Project, Civil
Liberties Organization and Media Rights Agenda v Nigeria,50 AmneshJ International
v Zambia, 51 and Scanlen & Holderness v Zimbnbwe. 52
131. The Complainant contends that the right to freedom of expression constitutes
an essential foundation of a democratic society and one of the basic conditions
for its progress and for an individual's self-fulfilment is that the right may only
be restricted in certain circumstances, and in conformity with international
human rights standards. In support of this argument, the Complainant cites the
decision of the African Court on Human and Peoples' Rights (African Court) in
Konate v Burkina Faso, wherein the African Court held that a three-part test
shouJd be applied in cases where freedom of expression is restricted: i) whether
the restriction was provided by law; ii) whether the restriction served a
legitimate purpose; and iii) whether the restriction was necessary to achieve the
set objective.53
132. The Complainant submits that the restriction on his freedom of expression was
not provided by law, and failed to meet the requirements under Article 9 of the
African Charter and Article 39 of the Constitution of Sudan. Further submitting
that his work highlighted instances of corruption and abuse by State agents, as
such the lack of a formal charge against him is in itself evidence to show that his
arrest and detention was not done in pursuit of any legitimate aim.
Consequently, the Complainant submits that his arrest and detention were not
provided by law, did not serve a legitimate purpose and was not necessary or
proportionate.
Alleged violation of Article 16 of the African Charter
133. The Complainant submits that the beating suffered, the inadequate care and
treatment he received and the inappropriate conditions of detention harmed his
physical and mental health in violation of Article 16 of the Charter. The
Complainant argues that the United Nations Committee on Economic, Social
and Cultural Rights in General Comment 14 directs States to ensure that
detainees are afforded timely and appropriate healthcare.
African Commission on Human and Peoples' Rights, Declaration of Principles on Freedom of
Expression in Africa 2002 art 16.
so Communication 105/93-128/94-130/94-152/96 Constitut'
,-i
;jg 4 "'· roject, Civil Liberties
0
,1. ,p'°'~'i:-cfl.E. T "'~'4r"" ~
Organization and Media Rights Agenda v. Nigeria para 54.
5 1 Communication 212/98 - Amnestlj International v Zambia" ~¥°'a 54. ~ '-,,
52 Communication 297/05 - Scaulen & Holderness v Zimba ,· g'par
l ~ ~ :.
~
53 Application 004/2013 - Konn.le v. Burkina F(l5o para 12. \ ~
0
49
.~ i
\..2)
'
~
, .,.
0
\
• A
f'
AU ·U A
~
")
' . <,..r/o...,"l•Rrc.M'''
.
",;:-·v',"'
~
'TQ
·.,_
. ,~
,\,/r,11; E1 ut'=• <>'<
~ --~---
a
31 I P a g e