Background Briefing

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IV. INTERNATIONAL AND ANGOLAN LAW ON FREEDOM OF EXPRESSION AND ASSOCIATION

International Legal Standards on Freedom of Expression and Assembly

Angola is party to several international treaties that guarantee the right to freedom of expression and freedom of assembly, including the International Covenant on Civil and Political Rights (ICCPR).26 Although not a treaty obligation immediately binding on states, parts of the Universal Declaration on Human Rights (UDHR), including Article 19 on the right to freedom of expression, are widely regarded as having acquired legal force as customary international law.27 This is relevant since, as discussed later in this report, the Angolan constitution invokes the rights under the UDHR, as well as other international instruments to which Angola is a party as legitimate bases for adjudication by Angolan courts.

Angola is also party to the African Charter on Human and Peoples’ Rights.28 This binding treaty requires states party to ensure and respect the rights to receive information and express and disseminate opinions, the right to free association, the right not to be compelled to join an association, and the right to free assembly.

Under international law, freedom of expression may be subject to restrictions in certain circumstances, including during a declared state of emergency, according to principles also laid out in international law. In states of emergency, states can derogate from some obligations of the ICCPR, including Article 19. Apart from this, there are some restrictions or limitations authorized by Articles 19 (3), Article 21, and 22 (2) that apply normally.29 However, these restrictions have been addressed by a number of international instruments, most notably by the Johannesburg Principles on National Security, Freedom of Expression, and Access to Information (Johannesburg Principles) adopted on October 1, 1995. According to the Johannesburg Principles, these restrictions should meet strict tests of legitimacy such as those set by Principle 2:

(a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source such as a military threat, or an internal source such as incitement to violent overthrow of the government.

(b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.30

International human rights law provides the media greater protection when it covers matters of public interest. It is well established that politicians and other public figures relinquish part of their rights to reputation and privacy, and must therefore tolerate, as a matter of law, wider and more intense scrutiny of their conduct. The European Court of Human Rights has held that the reputational rights of politicians and government officials are entitled to less protection vis-à-vis the media than those of private citizens. In the words of the court, a politician “inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance.”31

The Inter-American Commission on Human Rights expounded on this principle in its report on desacato [contempt]laws: “[I]n democratic societies political and public figures must be more, not less, open to public scrutiny and criticism...Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism.”32 According to the Siracusa Principles on the limitation of civil and political rights, the restriction clauses in article 19 of the ICCPR “shall not be used to protect the state and its officials from public opinion or criticism.”33

In October 2002, the African Commission on Human and Peoples’ Rights adopted a Declaration of Principles on Freedom of Expression in Africa,34 which sets forth the positive obligations of the state parties to the African Charter in relation to freedom of expression, including in regards to the right to information,35 and the incompatibility of a state monopoly over a broadcasting system.36

Finally, several resolutions by the U.N. Commission for Human Rights take a strong position on the need to promote literacy and education, both of which can help to ensure the enjoyment of these universal rights.37

Angolan Legislation

Freedom of expression and freedom of assembly and protest are constitutionally guaranteed rights in Angola. Article 32 (1) of the Angolan constitution states that:

“The rights to freedom of expression, assembly, demonstration and all other means of expression are guaranteed.”38

Further:

“Freedom of the press shall be guaranteed and may not be subject to any censorship, especially political, ideological, or artistic.”39

The Angolan Press Law (Lei de Imprensa) provides that the right of expression, and the right to teach and learn, can be exercised in all forms: by written and spoken means,40 and through intellectual, scientific, and cultural discourse.41

Limitations to fundamental rights are envisioned in the Angolan constitution only when the exercise of such rights would constitute a threat to public order, the public interest, or individual liberties and guarantees.42 These limitations, also envisioned in states of emergency or siege,should never affect the right to life, the right to physical integrity, to identity, to be recognized as a person before the law, to citizenship, the principle of non-retroactive application of criminal law, the right to defense for those charged with criminal offenses and freedom of conscience and religion. These guarantees closely parallel the provisions of the ICCPR.43

Further, according to Article 21 (2) of the constitution, national legislation must be interpreted in accordance with the international treaties to which Angola is a party and the principles of the Universal Declaration of Human Rights.44

Need for Reform of Angolan Laws

Despite the existence of constitutional guarantees, national legislation still imposes greater restrictions on freedom of expression than permissible under the constitution (or international law). Although government leaders have promised to draft more modern press legislation for more than two years, the current law still places unacceptable restrictions on press activities.

Angolan law, like many civil law countries, protects individuals’ “right to honor” through criminal sanctions for injúria, calúnia, and difamaçÃo.45 Injúria is the attribution of a negative characteristic that may affect the person’s moral dignity; calúnia, is the wrongful accusation that someone has committed a crime; difamaçÃo, equivalent to defamation in common-law countries, is the attribution of something offensive to the person’s reputation. These crimes are punishable by periods of imprisonment ranging from two to eight years and/or by fines.46

Human Rights Watch maintains that, as a matter of principle, criminalization of defamation is an unnecessary and disproportionate measure that, in itself, violates freedom of expression and media freedom. It serves no legitimate aims that cannot be sufficiently protected by private law remedies.

In addition, a publication may be suspended for as much as one year if it has published three articles or images over a period of three years that give rise to successful prosecutions for difamaçÃo or injúria.47 In practice, influential officials are able to take advantage of these laws to silence criticism as a result of a continuing lack of independence in the judiciary: a state of affairs that some Angolan journalists view as being more damaging than the legislation itself.

Of equal concern is the treatment of criticism of public authorities under Angolan law. While Article 45 of Angolan Press Law provides that proof of the veracity of the statement alleged to constitute injúria, calúnia, or difamaçÃo constitutes a defense to prosecution, a specific exception is made for criticism of the president of the Republic of Angola and other heads of state.48 In other words, even if true, statements of fact or opinion that might be disagreeable to the president of Angola constitute criminal offenses punishable by prison.49 In addition, legislation that explicitly penalizes offensive expressions directed at public officials, known as desacato laws (disobedience to authority) imposes sanctions such as suspension from work, fines, and imprisonment on journalists convicted under the law. By giving public officials greater protection than offered to private citizens, desacato laws undermine the democratic principle of oversight of governmental authority by public scrutiny.

Freedom of association is regulated by specific legislation that defines an association and establishes requirements for legal recognition.50 Associations are required to submit their request for registration and founding statute to the Ministry of Justice. If the ministry is satisfied with the documentation, it will publish the association’s statute in the official government paper, Diário da República. After this publication, the association should send a copy of the Diário da República to the Attorney General (Procurador Geral da República) to register the association’s statute. The association should then be sent an official registration number, proof of its registration as a legal recognized entity. Although the government has recently issued a new presidential decree to regulate activities of non-governmental organizations in Angola, the requirements for registration have not been altered.51

According to the Law on the Right of Assembly and Demonstration (Lei Sobre o Direito de ReuniÃo e de ManifestaçÃo), organizers of protests must inform authorities in writing of the intended protest three days before it is to happen, identifying at least five organizers, including their personal information such as address and occupation.52 Requiring that demonstrators notify the authorities in advance does not violate international law, if the requirements are directed, for example, at ensuring public safety. In practice, however, the Angolan authorities use these requirements to prevent legitimate protest; organizers who go to inform the authorities of their intention to protest are frequently informed that the demonstration will be illegal. The Law on the Right of Assembly and Demonstration also establishes conditions that justify police intervention to terminate an authorized protest. Among these conditions are acts or statements that affect the “honor” of the Angolan government or public officials.53

Although the Angolan constitution does not explicitly guarantee the right to access publicly-held information, this concept was institutionalized by a decree on December 15, 1995.54 Access to administrative information is limited by the concept of national defense, also guaranteed by separate legislation, the National Defense Law (Lei da Defesa Nacional).55 According to an expert report on Angolan National Security and State Secret (Segredo de Estado), documents and information may be deemed “state secret,” a determination made on a case-by-case basis, meaning that they will not be disclosed to those requesting public information: if they fulfill certain criteria such as containing confidential information.

Human Rights Watch takes the view that these restrictions are far too broad and do not conform to international standards, particularly with the Johannesburg principles.



[26]Angola ratified the International Covenant on Political and Civil Rights on January 10, 1992. The articles of the ICCPR relevant to freedom of expression, assembly, and association are:

Article 19 (1): Everyone shall have the right to hold opinions without interference; and 19 (2): Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 21: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22 (1): Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

[27] Article 19 of the UDHR states: “Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

[28] Angola ratified the African Charter on Human and People’s Rights on March 2, 1990.

[29] Article 19 (3): The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

[30] Principle 2, The Johannesburg Principles on National Security, Freedom of Expression and Access to Information. Available at www.1umn.edu/humanrts/instree/johannesburg.html.

[31] European Court of Human Rights, Oberschlick v. Austria, Judgment of May 23, 1991, Series A no. 204, para. 59. See also, Lingens v. Austria, Judgment of July 8, 1986, Series A no. 103.

[32] Inter-American Commission on Human Rights, Annual Report 1994, Report on the Compatibility of "Desacato" Laws with the American Convention on Human Rights, OEA/Ser L/V/II.88, Doc. 9 Rev (1995). Desacato laws (also known as contempt laws) were used in a number of Latin American countries to punish speech deemed to be insulting or threatening to public officials. The Commission concluded that such laws serve no legitimate aim and are inconsistent with free expression in a democratic society.

[33] Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Principle 37. The Siracusa Principles were adopted in a broad meeting of experts convened in 1984 by the United Nations Center for Human Rights and other organizations.

[34] Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (DPFEA), African Commission on Human and Peoples’ Rights 32nd Session, October 17-23, 2002: Banjul, The Gambia. Available at www1.umn.edu/humanrts/achpr/expressionfreedomres.html.

[35] DPFEA, Article 4 (1) Public bodies hold information not for themselves, but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.

[36] DPFEA, Article 5 (1) States shall encourage a diverse, independent private broadcasting sector. A state monopoly over broadcasting is not compatible with the right to freedom of expression.

[37] See also, U.N. Resolution entitled “United Nations Decade for Human Rights Education, 1995-2004, and public information activities in the field of human rights,” December 9, 1998; U.N. Resolution on Education for All, A/C.3/52/L.II/Rev.1/ October 29, 1997 and Resolution A/54/595 of the 54th session of the United Nations General Assembly, October 1999.

[38] “SÃo garantidas as liberdades de expressÃo, de reuniÃo, de manifestaçÃo, de associaçÃo e de todas as demais formas de expressÃo.” Article 32 (1) Angolan constitution, September 16, 1992.

[39] “É garantida a liberdade de imprensa, nÃo podendo esta ser sujeita a qualquer censura, nomeadamente de natureza política, ideológica e artística.” Article 35 (1) Angolan constitution, September 16, 1992.

[40] Article 2 on the definition of (1) print and publications, (2) radio transmission and (3) transmission and retransmission of TV broadcasting; Press Law (Lei de Imprensa, No. 22/01), June 15, 1991.

[41] Article 3 (e) on functions of the Social Communication institutions; Press Law (Lei de Imprensa, No. 22/01), June 15, 1991.

[42] Article 52 (1) states: The exercise of rights, freedoms, and citizens’ guarantees can only be limited or suspended according to the law when it would put at risk public order, the public interest, rights, freedoms and individual guarantees, or in case of declaration of coup d’etat or emergency, where these restrictions will be limited to guarantee public order, the public interest and the reestablishment of constitutional normality.

[43] The International Covenant on Civil and Political Rights, to which is Angola is a party, provides for derogation from certain rights in “time of public emergency which threatens the life of the nation” provided the state of exception is “officially proclaimed.” ICCPR, art. 4 (1). However, Article 4 (2) of the Covenant provides that no state may derogate from Articles 6 (right to life); 7 (prohibition on torture); 8 (1) and (2) (prohibition on slavery and forced servitude); 11 (prohibition on imprisonment for violation of contractual obligations); 15 (prohibition on retroactive application of criminal sanctions); 16 (right to recognition as a person before the law); and 18 (freedom of thought, conscience and religion).

[44] Article 21 of the Angolan constitution provides: (2) Constitutional and legal norms related to fundamental rights shall be interpreted and incorporated in keeping with the Universal Declaration of Human Rights, the African Charter on Human and Peoples’ Rights, and other international instruments to which Angola has adhered. (3) In the assessment of disputes by Angolan courts, those international instruments shall apply even where not invoked by the parties. Article 21 (2) “As normas constitucionais e legais relativas aos direitos fundamentais devem ser interpretadas e integradas de harmonia com a DeclaraçÃo Universal dos Direitos do Homem, da Carta Africana dos Direitos dos Homens e dos Povos e demais instrumentos internacionais de que Angola seja parte.” (3) “Na apreciaçÃo dos litígios pelos tribunais angolanos aplicam-se esses instrumentos internacionais ainda que nÃo sejam invocados pelas partes.”

[45] See Article 587 of the Angolan Penal Code and Article 20 of the Angolan constitution.

[46] Ibid.

[47] See Article 45 (5) Press Law (Lei de Imprensa, No. 22/01), June 15, 1991. “Poderá ser suspenso o periódico no qual hajam sido publicados escritos ou imagens que tenham dado origem, num período de 3 anos, a três condenações por crime de difamaçÃo ou injúria.”

[48] Criticism of the president and other heads of state is considered an aggravation to the crime of injúria and difamaçÃo. See Article 44 (2) Publication or, by means the press, of injúria, difamaçÃo or threat against authorities above mentioned [heads of Angolan government, heads of foreign states present or other diplomatic representatives present in Angola], is considered an offence made in their presence. “A publicaçÃo ou difusÃo, pela imprensa, da injúria , da difamaçÃo ou ameaça contra as autoridades referidas no número anterior, considera-se como feita na presença delas.” (Author’s translation).

[49] See Article 46 Press Law (Lei de Imprensa, No. 22/01), June 15, 1991. “Se a pessoa difamada for o Presidente da República Popular de Angola ou Chefe de Estado estrangeiro ou seu representante em Angola, nÃo é admitida a prova da verdade dos factos.” This legislation was last invoked in the case of Rafael Marques, sentenced to six months imprisonment in March 2000. Marques was released after forty days in the face of strong international pressure, and his sentence was later commuted to a suspended sentence before he was eventually granted amnesty.

[50] Law of Associations (Lei das Associações, No. 14/91, May 11, 1991).

[51] Decree No. 84/02, December 31, 2002.

[52] See Article 6 (1), Lei Sobre o Direito de ReuniÃo e de ManifestaçÃo, Lei No. 16/91 (DR No. 20, 1a. Série) May 11, 1991. (As pessoas ou entidade promotoras de reuniões ou manifestações abertas ao público deverÃo informar por escrito com a antecedência mínima de 3 dias úteis ao Governador da Província ou ao Comissário da área, conforme o local da aglomeraçÃo se situe ou nÃo na capital da província.) (2) Na informaçÃo deverá constar a indicaçÃo da hora, local e objecto da reuniÃo e, quando se tratar de cortejos ou desfiles, a indicaçÃo do trajecto a seguir) (3). A comunicaçÃo deverá ser assinada por 5 dos promotores devidamente identificados pelo nome, profissÃo e morada ou, tratando-se de pessoas colectivas, pelos respectivos órgÃos de direcçÃo.

53 See Article 8 (1) “As autoridades policiais poderÃo interromper a realizaçÃo de reuniões ou manifestações que decorram em lugares públicos, quando estas se afastarem da sua finalidade pela prática de actos contrários à lei ou à moral ou que pertubem grave e efectivamente a ordem e a tranquilidade públicas, o livre exercício dos direitos dos cidadÃos ou infrijam o disposto no no. 1 do artigo 4o. And then, Aricle 4 (1) “O exercício do direito à reuniÃo e manifestaçÃo nÃo afasta a responsabilidade pela ofensa à honra e consideraçÃo devidas às pessoas e aos órgÃos de soberania. Law on the Right of Reunion and Protest (Lei Sobre o Direito de ReuniÃo e ManifestaçÃo, Lei No. 16/91 (DR No. 20, 1a. Série) May 11, 1991).

54 Decree No. 16A/95, December 15, 1995.

55 Lei de Defesa Nacional, Law No. 2/93, March 26, 1993.


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