Amnesty International Togo and Others v Togo (2020)

Introduction

This is one of a pair of posts looking at two recent decisions of the Court of Justice of the Economic Community of West African States (the ECOWAS court), both relating to alleged violations of the right to freedom of expression in the online environment. This post looks at the decision in Amnesty International Togo and Others v Togo, issued on 25 June 2020, in which the ECOWAS court held that an internet shutdown in Togo violated the right to freedom of expression under the African Charter on Human and People’s Rights. (For the other post, which looks at the case of Incorporated Trustees of Laws and Rights Awareness Initiatives v Nigeria, see here.)

The decision in Amnesty International Togo and Others v Togo has, understandably, been widely welcomed and celebrated by human rights defenders and the immediate effect of the decision — declaring the internet shutdown a violation of freedom of expression — is no doubt good. In this post, however, I want to examine the ECOWAS court’s decision a bit more closely, and to highlight what I see as some key shortcomings in the judgment which have the potential to undermine the helpfulness of this decision were it to be adopted in future cases.

For those who wish to read the decision in full, it can be found here.

What happened?

The facts in this case are fairly straightforward. From 1967 until his death in 2005, Gnassingbé Eyadéma was the President of Togo. His son, Faure Gnassingbé, succeeded him, and has been the country’s head of state the country ever since. After fifty years of rule by father and son, a series of protests were organised by opposition parties in August 2017 against Gnassingbé, calling for presidential term limits. These protests eventually involving hundreds of thousands of people across the country. The government responded with force and, during September 2017, severely restricted access to the internet in the country for six days.

Seven non-governmental organisations and a journalist, Houefa Akpeda Kouassi, brought a case against the government of Togo to the ECOWAS court on the basis that this internet shutdown constituted a violation of their right to freedom of expression. Specifically — and this is important — they argued that there had been violations of three provisions of international law:

• The right to freedom of expression as protected by Articles 9(1) and 9(2) of the African Charter on Human and People’s Rights (ACHPR);
• The right to freedom of expression as protected by Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR); and
• The rights of journalists as protected by Article 66(2)(c) of the Revised ECOWAS Treaty.

What did the ECOWAS court decide?

The ECOWAS court looked first at the question of whether there had been an interference with the right to freedom of expression. Specifically, the court looked at whether access to the internet was protected under the right freedom of expression. The court held that it was: while access to the internet was not in and of itself a human right, it was a “derivative right” since the internet provided a platform for individuals to exercise their right to freedom of expression. As such, any interference with access to the internet would be assessed in the same way as any other interference with the right to freedom of expression. So far, so good.

The court then turned to the question of whether the interference could be justified. For reasons I set out later in this post, things get a little complicated at this point, because while the applicants brought their case on the basis that two separate provisions of different international treaties protecting freedom of expression (both the ACHPR and the ICCPR), as well as Article 66(2)(c) of the Revised ECOWAS Treaty which protects the rights of journalists, the ECOWAS court undertook its analysis solely on the basis of Article 9 of the ACHPR.

Article 9 of the ACHPR requires any interferences with freedom of expression to be “within the law” to be justified. Here, the government of Togo itself accepted that there wasn’t a legal basis for the internet shutdown. As a result, the court took little time to conclude that the interference amounted to a violation of Article 9.

What does the decision mean?

While the outcome itself is good, I find the approach of the court and its reasoning to be troubling. As I noted above, the ECOWAS court undertook its analysis solely on the basis of Article 9 of the ACHPR, and not also of Article 19 of the ICCPR.

A quick background to these provisions is important context. Interferences with Article 19 of the ICCPR, as is well known, must meet a three-part test to be justified (the interference must be provided for by law, pursue a legitimate aim, and be necessary and proportionate). Article 9 of the ACHPR, on the other hand, has only the first requirement on its face, namely that to be permitted, the interference must be “within the law”. This difference in wording doesn’t matter, ordinarily, since the term “within the law” in Article 9 of the ACHPR has been interpreted to include requirements for interferences to pursue a legitimate aim and be necessary and proportionate.

In Good v Botswana (2010), for example, the African Commission on Human and People’s Rights stated that while Article 9 of the ACHPR does not contain grounds upon which freedom of expression can be limited, the term “within the law” under Article 9(2) “provides a leeway to cautiously fit in legitimate and justifiable individual, collective and national interests as grounds of limitation” (the Commission also referred to its decision in Malawi African Association and Others v Mauritania (2000) where it stated that the “must be interpreted in reference to international norms”). Building upon this, the African Court on Human and People’s Rights has, in in cases such as Lohé Issa Konaté v Burkina Faso (2014), assessed whether alleged interferences pursue legitimate purposes and are necessary and proportionate.

This approach has also been followed by the ECOWAS court. In Federation of African Journalists v Gambia (2018) and Ogwuche v Nigeria (2018), for example, the court undertook its analysis under both Article 9 of the ACHPR and Article 19 of the ICCPR and therefore examined whether the alleged interferences pursued a legitimate aim, and were necessary and proportionate (as well, of course, as whether they were provided by law). It was also the approach taken by the ECOWAS court in the second decision mentioned in the introduction to this post, Incorporated Trustees of Laws and Rights Awareness Initiatives v Nigeria (2020) (my analysis of which can be found here).

In this case, however, the court seemingly ignored all of this precedent and appeared to suggest that Article 9 should be read literally, meaning that interferences with freedom of expression, including internet shutdowns, will be permissible provided that there is a legal basis for them. As I read the judgment, the legislature of Togo could now simply pass a law which allows them to shut down the internet and then succeed in any future case. This reading is largely based upon paragraph 45 of the judgment.

“The Court notes that the Respondent’s attempt to justify the action of the state of Togo in shutting down the internet access based on the protest that took place in there. According to the Respondent, the said protests had the potential to degenerate into a civil war and therefore it was imperative for the State to protect the national security of the country. While this argument has merit and has been internationally recognized as a valid defense to derogate from certain rights, the fundamental basis of the exercise of this power of derogation is that it must be done in accordance with the law. In other words, there must exist a national legislation guaranteeing the exercise of this right whilst providing the conditions under which it can be derogated from. Such conditions may include, but is not limited to public interest, national security, public health, public order etc.”

Ignoring the conflation between “derogations” from human rights and “justified restrictions” on them (a conflation which itself raises concerns), this is a deeply troubling approach. Had the court also approached the case using Article 19 of the ICCPR or its own precedent on Article 9 of the ACHPR, and thus make clear that any interference must pursue a legitimate aim and be necessary and proportionate, the government of Togo would find it much more difficult to justify any future networks disruption. Instead, paragraph 45 strongly suggests that, consistent with Article 9 of the ACHPR, internet shutdowns will be permissible so long as there is a law somewhere which gives the government the power to order them. (While paragraph 45 does say that any legislation must set out the “conditions” under which it can be used, it doesn’t actually proscribe any limitations on what those conditions could be). This approach would make permissible network disruptions under the African regional human rights mechanisms which would be prohibited under international human rights law (or the European and Inter-American systems).

So why did the ECOWAS court seems to take such a different approach in this case, i.e. to seemingly ignore all of these precedents and approach the interference strictly and solely on the basis of whether there was a law in place allowing for internet shutdowns? Well, were I being generous to the court, I would suggest that perhaps the court made its decision solely on the basis of Article 9 of the ACHPR and the requirement of a legal basis because that was sufficient to dispose of the case. Given that the interference failed at that stage, there was no need to undertake further under Article 9, nor to undertake any analysis under Article 19 of the ICCPR.

Unfortunately for the court, I’m not feeling generous. Had that been its approach, it wouldn’t needed to have included paragraph 45 in its judgment. The court could simply have said that the absence of any legal basis for the network shutdown rendered it a violation of both Article 9 of the ACHPR and Article 19 of the ICCPR. Paragraph 45 of the judgment, however, risks shutting off future courts from making any assessment of whether legitimate aims were being pursued, or whether the internets shutdown was necessary or proportionate.

I fear that the real reason for the court’s approach in this case is either ignorance of relevant precedent or a deliberate attempt to change the court’s approach to cases involving freedom of expression. The latter feels unlikely, although it’s not impossible. It would, of course, be deeply disappointing if the court had made a conscious decision to overrule its precedents and put forward a new approach to assessments made under Article 9 of the ACHPR which solely look at the question of whether there was a legal basis for the action. More likely, I suspect, is that that the court simply did not fully consider the precedents and that the decision was just poorly reasoned. Without having seen the full documents before the court, it is not possible to know whether any of the parties raised the relevant precedents but it is reasonable to assume that they did and so for the court to have ignored them is, to put it mildly, unfortunate.

When I was initially writing this post, my ending raised concerns over the potential for this decision to be a Pyrrhic victory and argued that the reasoning would need rapid correction so that the alternative approach used by the court was not followed in similar cases. Thankfully, as noted earlier, the ECOWAS court has since this decision issued a new one, also focusing on the right to freedom of expression, but following the approach set out its precedents. I still think there is a risk of the court’s flawed approach in this case being followed in cases involving internet shutdowns, particular by domestic courts who might not be familiar with regional jurisprudence and look at this one decision in isolation. Advocates arguing against internet shutdowns should therefore make sure that when they cite this decision, their bundles also include the others set out above!