SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
and North-West. In its decision, the Court justified in its ruling that the petition was filed by a person who
does not fall under the persons empowered to refer matters to the Constitutional Court as stipulated by
Section 47(2) of the Constitution of Cameroon. This Section exclusively entitles the following persons to
submit petitions to the Court: President of the Republic, President of the National Assembly, President of
the Senate, one-third of the members of the National Assembly or one-third of the Senate, and Presidents
of Regional Executives.
A second important area of this jurisprudence refers to the connection of the right to access the internet as well as to certain very popular applications, and the right to freedom of expression. The Court
determined in the aforementioned decisions that internet access may not strictly be a fundamental right
but is a “derivative right” as it “enhances” the exercise of freedom of expression. As such, the Court
considers that internet access is an “integral part” of the right to freedom of expression that “requires
protection by law and makes its violation actionable.” Any interference with this right must, therefore,
be provided for by the law specifying the grounds for such interference and meet the requirements of
necessity and proportionality. In the case against Nigeria, the Court specifies that the “derivative right”
protected under article 19 ICCPR and article 9 ACHPR allows a person to enjoy the right to freedom of
expression using whatever medium of choice, including access to social media platforms like Twitter,
Facebook, and Instagram. Therefore, any derogation from the derivative right to access to the internet,
including access to social media platforms, requires a legal instrument, which can be an existing law or
an order of the Court (or, in most cases, both) and must also respect the principles of legitimacy, necessity, and proportionality.
In both cases, the Court found that the respective measures (wholesale shutdown and suspension to
access to Twitter) were adopted in the complete absence of any law or court decision that would support
and legitimize them. Therefore, both deserved to be qualified as clear illegitimate intromissions in the right
to freedom of expression for violation of the principle of legality. The Court generally acknowledges that
freedom of expression can be subjected to certain limits, and that national security allegations may have
“merit” as a valid defense to justify derogating the mentioned right. At any rate, the specific circumstances
of the cases show the complete omission of any law or any other legal or judicial instrument that would
provide any basis or justification for the adoption of the measures under scrutiny.
Last but not least, the Court also requested national authorities in both cases, and as part of the final
decision, to take “all necessary measures” to prevent the re-occurrence of the “situations” in the future, and
to enact laws to protect the right to freedom of expression in accordance with international human right
standards. In the case against Nigeria, it is also important to underscore that once the lawsuit was filed, the
Court held that it be heard expeditiously and ordered the respondent to desist from imposing the ban, sanctioning media houses, or arresting, harassing, intimidating and prosecuting the applicants and concerned
Nigerians for the use of Twitter and other social media platforms pending the hearing and determination of
the substantive suit. Therefore, in this last case, the ECOWAS Court considered that the potential impact of
the suspension of Twitter’s service on the fundamental right to freedom of expression justified the implementation of interim measures during the examination of the case.
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