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By Anneke Meerkotter and Ian Swartz

In many countries, whether your freedom of expression is respected or not continues to depend on the views you hold. The prosecution of Zambian human rights activist Paul Kasonkomona for his views on the rights of sexual minority groups, is such an example.

Over a decade ago, in 2002 the African Commission on Human and Peoples’ Rights adopted its Declaration of Principles on Freedom of Expression in Africa. The Declaration affirmed freedom of expression as “a fundamental and inalienable human right and an indispensable component of democracy”. However, despite the Declaration, respect for freedom of expression lags behind in Africa. The African Commission noted this much in its Resolution on the situation of freedom of expression in Africa in 2006, although the Resolution focused more on the rights of journalists and the media and less on the various other groups whose freedom of expression rights are curtailed.

Gradually international and regional bodies have started to recognise the immense pressure placed on human rights defenders in countries where freedom of expression is not respected on an equitable basis. But is this enough?

In its Resolution on Human Rights Defenders in Africa in 2011, the African Commission called on States to recognise the role of human rights defenders to promote the rights in the African Charter on Human and Peoples’ Rights, and urged States to release human rights defenders who were arbitrarily detained and put an end to judicial harassment and other acts of intimidation against human rights defenders. Most recently, in a Resolution in 2014, the African Commission called on State Parties “to ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals and criminal prosecution as a result of their human rights protection activities, including the rights of sexual minorities.”

There is an uncomfortable disjuncture between the noble intentions of Resolutions at the African Commission, and the active attempts by States, in a range of national fora, to aggressively discourage the expression of opinions on controversial or unpalatable issues, as was the case with Paul Kasonkomona.

Kasonkomona appeared on a television show in April 2013, where he spoke about the importance of respecting the rights of sexual minorities if the State is to effectively address the HIV epidemic. Kasonkomona was immediately detained and only days later was he charged with the obscure offence of “soliciting for immoral purposes”. This offence, dating back to the English Vagrancy Act of 1898, had never before been used in this manner. In February 2014, after the prosecution had presented its case against Kasonkomona, the Magistrate ruled that the State had not made out a prima facie case and acquitted Kasonkomona.

Victory was short lived. In an unusual step, the State appealed this acquittal. Essentially, the State argued that the prosecution of Kasonkomona constituted a justifiable limitation of his right to freedom of expression since such limitation is reasonably required in the interests of public morality. The State did not rely on the evidence of its own witnesses on appeal, and Justice Mulongti, on 15 May 2015, confirmed Kasonkomona’s acquittal, reiterating the ruling of the Magistrate which distinguished between soliciting someone to engage in same-sex sexual acts, which is currently a criminal offence in Zambia, and advocating for the rights of persons. The judgment illustrates how justice in matters relating to public morality can only prevail where the judiciary is independent and enabled to uphold its constitutional mandate to protect human rights.

The laborious criminal process that Kasonkomona had to endure to secure his acquittal applies to many other activists across Africa. Even if the charges against activists such as Kasonkomona are fundamentally weak, the States’ actions in prosecuting them have major implications for freedom of expression in those countries. In Zambia, Kasonkomona’s arrest and ongoing court proceedings over the past two years had the effect of silencing many critical voices on human rights issues for fear of similar persecution.

The ease with which governments are able to use the police and prosecutors to pursue human rights defenders is worrying and seems undeterred by what is said at regional fora. Politicians seem well versed on how prolonged prosecutions, even if legally flawed, make it difficult for activists to sustain a defence and sustain their activism throughout the criminal process. Such malicious prosecutions place significant financial and emotional strain on the accused and their families. Our responsibility is to support these courageous individuals, including by raising our voices with them, so that they do not have to face persecution alone and by demanding that national governments adhere to their national and regional obligations to respect, protect and promote human rights, including freedom of expression.

By Anneke Meerkotter,Southern Africa Litigation Centre,
and Ian Southey-Swartz, Open Society Initiative for Southern Africa

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