On September 18, 2019, the African Commission on Human and Peoples’ Rights (ACHPR) published a decision finding Cameroon responsible for violating the rights to freedom of expression, non-discrimination, and property of a media company and its director, when it failed to create an independent licensing authority that could grant the company’s radio station a broadcasting license. See ACommHPR, Open Society Justice Initiative (on behalf of Pius Njawe Noumeni) v. the Republic of Cameroon, Communication No. 290/2004, Merits Decision, 25th Extraordinary Session (2019). Drawing and elaborating on jurisprudence from other regional and international human rights bodies, the Commission concluded that the lack of independent and transparent licensing procedures limits diversity in broadcasting and is contrary to the African Charter on Human and Peoples’ Rights (African Charter). See id. at para. 171.
The Open Society Justice Initiative (OSJI) brought this case on behalf of Pius Njawe Noumeni (now deceased), a journalist, media rights activist, and head of the Groupe Le Messager, alleging that Cameroon’s failure to license the radio station, Cameroonian Radio Freedom FM, amounted to an arbitrary denial of a broadcasting license, arbitrary deprivation of property, and discrimination based on political opinion. See id. at paras. 4-9. Following Cameroon’s implementation of a decree that ended the State’s monopoly over radio and television broadcasting, Le Messager, which was subsequently renamed Freedom FM, submitted an application for a broadcasting license as required by the State. See id. at paras. 6-7. Cameroon’s Minister of Communication did not explicitly reject the application, but it refused to authorize it or reach a decision within the mandatory six-month period. See id. at paras. 9-13, 56. While the application was pending, the station bought radio equipment and announced in its newspaper that it would begin broadcasting despite not having a license. See id. at paras. 6, 9. As a result, and although the station had not begun broadcasting broadcast, State officials seized Freedom FM’s studios and equipment, and brought criminal charges against Le Messager and Njawe Noumeni for operating without a license. See id. at paras. 10-11, 18.
The OSJI, on behalf of Le Messager and Njawe Noumeni, originally submitted a complaint to the ACHPR on December 5, 2005, requesting provisional measures to prevent “irreparable damage” tothe radio equipment. See id. at para. 21-22. The Commission granted the provisional measures in 2004, but the State failed to comply. See id. at para. 23. In 2005, the ACHPR deferred its decision on admissibility after considering the parties arguments because it was notified that an amicable settlement between the parties was pending. See id. at paras. 27-30. The parties signed an amicable settlement agreement that required Cameroon to drop the criminal charges against Njawe Noumeni, release the equipment that had been confiscated from the radio station, and grant the station its broadcasting license. See id. at para. 31. In exchange, the complainant agreed to withdraw the communication before the Commission. See id. However, the State failed to comply with the amicable settlement by refusing to authorize the station’s broadcasting license, and the Commission agreed to reopen the communication in 2007. See id. at paras. 35-38.
In 2012, the ACHPR declared the communication admissible, clarifying that the case was not a “settled matter in terms of Article 56 (7) of the African Charter” given that the Commission did not decide “on the admissibility or merits of the case before the request for discontinuance was made.” See id. at paras. 88-92. Specifically, the ACHPR reasoned that its acknowledgement of the parties’ amicable settlement agreement is not comparable to “a decision on the admissibility or merits of the case,” and the State’s failure to comply with the agreement makes it inconclusive with respect to Article 56(7) of the Charter. See id. at paras. 92-93. The ACHPR did not grant the complainant’s request for provisional measures requiring Cameroon to allow the radio station to operate while the case was pending. See id. at paras. 36-38.
ACHPR Analysis on the Merits
The ACHPR first considered the State’s request to resolve the matter via a second amicable settlement. See id. at para. 121. The ACHPR rejected this request, noting that while the Commission’s Rules of Procedure allow it to “offer its good offices for an amicable settlement between the parties ‘at any stage of the examination of a Communication,’” an amicable settlement would only delay its examination of this matter and the complainant no longer considers an amicable settlement an effective solution. See id. at para. 121-25.
Freedom of Expression
The ACHPR examined whether Cameroon’s alleged broadcasting monopoly, lack of a fair and independent licensing authority to consider the broadcasting license application, and arbitrary denial of the application violate Article 9 (right to access to information and freedom of expression) of the African Charter. See id. at para. 96, 126-27. With respect to the State monopoly, the ACHPR found that the monopoly ended with the implementation of the law “Establishing the Conditions and Modalities for the Creation and Operation of Private Audiovisual Communication Enterprises (Decree 2000)” and did not exist when the communication was filed. See id. at paras. 4, 131. Thus, the ACHPR declined to rule on this issue.
Drawing on the Declaration of Principles on Freedom of Expression in Africa and the Human Rights Committee’s General Comment No. 34, the ACHPR stated that “an independent regulatory body” must be “independent and adequately protected against interference, particularly of a political…nature.” See id. at para. 133. In this case, the ACHPR found that Cameroon lacked an independent licensing authority because the Minister of Communication, an individual appointed by the President and a member of the Executive, is the final decision maker when granting or denying broadcasting licenses. See id. at para. 134. As such, it concluded that the Minister of Communication was not protected against political interference. See id. at para. 135.
The ACHPR also found that the procedures in place for granting broadcasting licenses constitute an interference with the right to freedom of expression because, by refusing to grant a license, a State limits individuals’ right to “impart information and ideas.” See id. at para. 139. The Commission drew on the European Court of Human Rights’ case law to determine whether this interference was provided for by law and was necessary to achieve a legitimate purpose in a democratic society. See id. at paras. 140-42. The ACHPR explained that the interference was not provided for by law because Decree 2000 does not indicate what requirements should be considered in granting or denying an application for a license, and gives the Minister of Communication complete discretion in the licensing process, including discretion to issue authorizations to broadcast without justifying its decision and without actually issuing broadcasting licenses. See id. at paras. 143-47. Finding that the interference was not provided for by law, the Commission did not examine whether it was necessary to achieve a legitimate purpose. See id. at para. 149.
Moreover, the ACHPR explained that the Minister’s inability to comply with the six-month statutory period to grant or deny a license, combined with the lack of access to judicial review of the Minister’s decisions, resulted in an unfair licensing process that was not transparent and did not “promote diversity in broadcasting,” contrary to Article 9 of the African Charter. See id. at paras. 150-55.
Finally, the ACHPR found that the broadcasting license was arbitrarily denied and that such denial amounted to “prior restraint of legitimate communication.” See id. at paras. 162, 170. While radio licensing may constitute a legitimate form of prior restraint or censorship on the right to freedom of expression, the licensing process must “provide sufficient safeguards against arbitrariness, including the provision of a proper reasoning by the licensing authority on decisions to deny a broadcasting license.” See id. at 170. Here, those requirements were not met as a result of the Minister’s unlimited discretion, individuals’ inability to challenge a decision, and lack of safeguards against arbitrariness. See id.
Non-discrimination & Right to Property
The ACHPR also held that the application for the Le Messager’s broadcasting license was denied based on the broadcasters’ political opinions in violation of Article 2 (right to non-discrimination) of the African Charter. See id. at paras. 191-92. The Commission reiterated its test to determine whether a violation of the right to non-discrimination has occurred, stating that it will consider whether: “a) equal cases are treated in a different manner; b) a difference in treatment does not have an objective and reasonable justification; and c) if there is no proportionality between the aim sought and the means employed.” See id. at para. 183. The ACHPR concluded that all of these factors were met given that the State failed to submit evidence refuting the complainant’s submissions indicating that the Minister of Communication allocates broadcasting frequencies to those who will not be critical of the government, or an objective justification for the differential treatment. See id. at paras. 184-86.
Further, the ACHPR held that confiscating and sealing off the radio equipment without a court order was unlawful and not contemplated under Decree 2000. See id. at paras. 200-01. Therefore, the ACHPR concluded that Cameroon violated Article 14 (right to property). See id.
The ACHPR ordered the State to pay for the seized radio equipment, the rent paid where the seized equipment was being held, payments to the technicians who installed the equipment, legal fees, and loss of earnings since 2003. See id. at para. 212. The Commission also ordered Cameroon to pay compensation to Njawe Noumeni’s family for moral damages, and to implement this decision within 180 days of the date issued. See id.
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