UNESCO in conversation with Magistrate Aniagyei, a participant in African MOOC on freedom of expression

06 April 2018

You recently completed a 5 weeks online course (MOOC) on freedom of expression and international and African standards on this issue. Could you present yourself briefly and tell us why you decided to follow this online course organized by UNESCO and the University of Pretoria?

I am a professional magistrate working in the judicial service. I am stationed in Kumasi, in the Ashanti region of Ghana. I was called to the Ghana bar in 2012, and have been a magistrate since 2014.

I chose to enroll in an online course because I am quite busy, but always eager to learn. The reason I chose this course on human rights and specifically freedom of expression has to do with my strong interest in humanitarian law and human rights law. I am interested in human rights law because when there is peace, human rights law is what ensures that as citizens, we get to live our lives and not simply to exist. Living is being able to attain your goals or make use of your talents within your society. This is why I have a strong interest for human rights and I chose to follow this course.  The course was also very attractive because it was organized by UNESCO and the University of Pretoria, both of them internationally recognized institutions.

Had the issue of human rights been a part of your legal training? Following up on that, among human rights, is it specifically freedom of expression that interests you?

Human rights in general interest me. We study our Constitution in depth as part of legal training in Ghana, and human rights are enshrined in our Constitution since it was approved in 1992. At the Ghana School of Law where I studied, you have to learn the whole Constitution and you get to focus on human rights. Article 33(5) of the Constitution makes clear that any human right inherent in another democracy should be considered as being provided for in our Constitution, even when it is not expressly stated. This means that we look at the provisions within our Constitution on the basis of any human right inherent in a democratic society. Freedom of expression is one of them: as put forward in the course, it ensures that all other rights are respected.

Could you tell us what this course brings to you as a member of the judiciary, and in which way you think it can help your daily work?

This course broadened my scope of knowledge on the work of the African Court on Human and Peoples’ Rights, in particular about decisions that the Court had taken and that had not come to my knowledge. I also realized that other African countries are making strides in human rights too. We do not necessarily have to resort to the African Court on Human and Peoples’ Rights: I found interesting that some states’ courts are taking steps to ensure that Africa is not known as a continent where human rights are not respected.

In Ghana, we repealed our criminal libel law years ago, hence if you make a statement with which not everyone agrees, you can only be sued for defamation. However, this course opened my eyes to the fact that there are times in which a press service or an institution will want to curtail an institution, individual  or a journalist’s right to freedom of expression, and will bring up another criminal charge because it cannot use criminal libel. The charge will not be related to the person’s freedom of expression, it will be another kind of criminal charge. The fact is that if the person is in court fighting one charge or another, they will not have the time to go searching for information, to go publishing articles about whatever power that person has been working on as a journalist. These are bogus cases, but their aim is to curtail this person’s freedom of expression.

How do you think some key decisions by the African Court on Human and Peoples’ Rights or the ECOWAS Court of Justice, especially on freedom of expression and ending impunity could be applied at the national level, for instance in Ghana?

In the case of Norbert Zongo, which is a case that has been going on for many years, I was happy to know that the African Court on Human and Peoples’ Rights took a decision about it 2-3 years ago, and the country has now arrested the prime suspect. Of course, he would be arraigned before the judiciary of Burkina Faso. Ultimately, it comes back to the national judiciary to ensure that justice is carried out.

I think in Ghana we feel comfortable because we think that having repealed the criminal libel law, journalists are generally safe. Ghana is not pinpointed in end-of-year reviews of which countries are not safe for journalists, so we have a sense of comfort. However, if we want to continue making sure that remains the case, I think we have to ensure that we strictly abide by the provisions of our Constitution at the national level. Anytime the African Court on Human and People’s Rights comes up with a decision on a right that is already provided in our Constitution, our job is just to ensure that we still comply with this. If it is not, then we have to look at Article 33(5), which I mentioned before, to ensure that it applies. The judiciary can help with that, even at the stage of law development. It has the specific right to rule that any law which does not respect the right to freedom of expression is unconstitutional. We just have to be quick to react anytime Parliament is passing a law and a citizen raises the fact that it may infringe on our Constitution and the rights guaranteed by the African Charter on Human and Peoples’ Rights, which Ghana is signatory to.

What role do you think freedom of expression and freedom of the press play in a society and specifically in African societies? How are they important?

We live in an age of information: everything is about information. In Ghana, for instance, civil society groups are pressuring the Parliament to pass the right to information bill. If you have access to information, you then have the ability to express yourself, and you know what you are talking about. Freedom of expression and freedom of the press are important because they ensure the dissemination of information to the citizenry. Information enlightens and develops society as a whole and individuals in particular. If you are to participate in governance even outside of electoral periods, you can only do so if you have access to appropriate information.  You have the freedom to speak up when you are happy or not with something the government, judiciary, or parliament is doing. You can educate people when you are free to talk without any form of interference from the government. That is how freedom of expression is important to us here in Africa, and specifically in Ghana.

Is there something else you would like to mention about freedom of expression, or about regional and international standards and how they could be better incorporated in the work of the courts?

As put forward in the course, one of the concerns that African courts have had is that some countries have enshrined the right to freedom of expression, but then there is a clawback clause, such as: “Provided that it falls within the limits of the law…”, or something similar in another form. We cannot allow anyone to say anything: hate speech, racism are not healthy for any environment. However, I believe clawback clauses can be made more specific rather than keeping them in general terms; UNESCO can help national authorities with this. In that way, it becomes difficult for people to use clawback clauses as a means to impede freedom of expression.

The Massive Open Online Course (MOOC) on freedom of expression, access to information and safety of journalists in Africa was rolled out by UNESCO and the Centre for Human Rights of the University of Pretoria. This project was implemented in the framework of the UN Plan of Action on Safety of Journalists and the Issue of Impunity, which aims to create a free and safe environment for journalists and media workers.  It followed the seminar commemorating the International Day to End Impunity for Crimes Against Journalists 2016, which took place in Arusha, Tanzania, in partnership with the African Court and Commission on Human and Peoples’ Rights. The project received the support of Denmark and the Open Society Foundations, with a technical contribution from Norway.