The decision of the African Commission on Human & Peoples’ Rights at the 24th ordinary session in October 1998 made it clear that international obligations took precedence over domestic law and warned against undermining fundamental rights.
After the annulment of the Nigerian elections of 12 June 1993, several decrees were issued by the government. These proscribed the publication of two magazines. By decree, the government also proscribed ten newspapers published by four different media organisations. On 16 August 1993, the government announced the promulgation of the Newspaper Decree no 43 of 1993. The Decree required the registration of newspapers in Nigeria, the approval of which would be decided by the Newspapers Registration Board.
A significant part of the Commission’s decision concerned Article 9(2) of the Charter (the right to express opinions) and how this right may be restricted by law. The Commission emphasised that whilst Article 9(2) provided for the dissemination of opinions to be restricted by law, this did not mean that national law can set aside the right to express and disseminate one’s opinions. The Commission found that:
‘To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.’
The Commission continued stating: ‘a limitation may never have as a consequence that the right itself becomes illusory.’ The Commission expressed the view that any restrictions on rights must be proportionate, reasonable and evidence-based, and warned against using the law to target specific individuals or groups. The proscription of newspapers was found not to be ‘within the law’ and was disproportionate, discriminatory and in violation of Article 9(2).
The Commission held a violation of Articles 6, [7(1)] 7(1)(c), 7(2), 9(1), 9(2), 14 and 16 of the African Charter and requested that the government of Nigeria take the necessary steps to bring its law into conformity with the Charter.
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