Case Title: Scanlen and Holderness v. Zimbabwe (Communication 297 of 2005)
Court: African Commission on Human and Peoples' Rights
Date of Decision: 3rd April 2009
Citation: 2009 ACHPR 96
Facts
The complainants, consisting of the Independent Journalists Association of Zimbabwe, Zimbabwe Lawyers for Human Rights, and the Media Institute of Southern Africa, challenged the constitutionality of Zimbabwe's Access to Information and Protection of Privacy Act (AIPPA). Enacted in 2002, AIPPA required compulsory accreditation for journalists by the Media and Information Commission (MIC) and imposed criminal penalties for violations. The complainants argued that these provisions violated the right to freedom of expression under Article 9 of the African Charter on Human and Peoples' Rights.
Issue
Whether the compulsory accreditation of journalists under Section 79 of AIPPA violated the right to freedom of expression as guaranteed by Article 9 of the African Charter.
Whether the criminalization of falsehoods under Section 80 of AIPPA was compatible with Article 9 of the African Charter.
Rule
Article 9 of the African Charter on Human and Peoples' Rights states:
Every individual shall have the right to receive information.
Every individual shall have the right to express and disseminate his opinions within the law.
Analysis
The African Commission on Human and Peoples' Rights evaluated whether the requirements for compulsory accreditation and the criminalization of falsehoods constituted unjustifiable restrictions on freedom of expression. The Commission found that compulsory accreditation created significant barriers to practicing journalism, undermining both individual rights and the public’s right to information. The MIC’s control over accreditation gave the government undue influence, leading to potential political manipulation. Additionally, the criminalization of falsehoods was deemed excessive, with penalties that were disproportionate to the harm caused. The Commission noted that existing civil and criminal remedies for defamation and other harms were sufficient to address issues of misinformation without needing further restrictions.
The Commission drew on international jurisprudence, including cases from the Inter-American Court of Human Rights, which had struck down similar licensing schemes as incompatible with freedom of expression. The African Commission found the logic of these decisions compelling and applied similar reasoning to this case.
Conclusion
The African Commission held that Sections 79 and 80 of AIPPA violated Article 9 of the African Charter. The compulsory accreditation requirement and the criminalization of falsehoods were found to be unjustifiable restrictions on freedom of expression.