ECOWAS Court finds Togo violated Freedom of Expression during 2017 protests

In recent times, it has become the norm for images and videos to be shared on the internet in real time during political protests. Doing so alerts fellow citizens and media outlets to any issues that may arise and can be a critical evidence gathering tool.

However, on two occasions in 2017, protests calling for constitutional reform in Togo were suppressed through a government-initiated internet shutdown. The shutdown disabled Togolese citizens’ access to the internet in all forms, including social media and data messaging (such as WhatsApp). This halted protesters’ ability to communicate and report on what was happening.

In response, Amnesty International Togo, six local NGOs and a Togolese journalist filed a complaint before the Economic Community of West African States (ECOWAS) Community Court of Justice, claiming that their right to freedom of expression was violated by the government’s internet shutdown during the protests.

On 26 June 2020, the ECOWAS Court found that there had been a violation of the plaintiffs’ rights and that compensation should be awarded. The Court further directed the Togolese government to “enact and implement laws, regulations and safeguards in order to meet its obligations with respect to the right to freedom of expression in accordance with international human rights instruments” and “take all necessary measures to guarantee non-occurrence of this situation in the future”.

History of ECOWAS

ECOWAS has 15 member states and was established to promote economic integration within the West African region. The ECOWAS Community Court of Justice is located in Abuja, Nigeria and has been operational since 2000. Whilst the ECOWAS Court was created for the primary purpose of adjudicating inter-state economic disputes, it is now known for its active judgments against member states for human rights abuses.

The landmark case Olajide Afolabi v. Federal Republic of Nigeria saw a businessman file a complaint against Nigeria for non-compliance with ECOWAS free movement rules by unilaterally closing the border with Benin after he had entered a contract to purchase goods. The ECOWAS Court found in favour of Nigeria, interpreting strictly the provisions of the 1991 Protocol on the Community Court of Justice and concluding that the Protocol precluded the court from receiving complaints from private individuals.
Recognising this obvious flaw,  NGOs, ECOWAS judges and community officials campaigned for the Court to hear disputes involving violations of citizens’ human rights committed by member states. The campaign was successful, and the 2005 redefinition of the 1991 Protocol recognised private litigants’ right to bring cases before the court.

The court now has broad access rules, such that individuals and NGOs can bypass national courts and file complaints directly with the court. In Hadijatou Mani Koraou v. The Republic of Niger, the court commented that it “cannot, without violating the rights of individuals, impose conditions and formalities on them which are more burdensome than those laid down in Community legislation”.

According to the 1991 Protocol on the Community Court of Justice, all decisions of the ECOWAS Court are binding and immediately enforceable on member states, institutions of ECOWAS, individuals, and corporate bodies. However, ensuring member state compliance with the Court’s judgments is a well-recognised and ongoing issue. In a recent virtual news conference President of the ECOWAS Court, Justice Edward Asante, appealed to member states to ensure the enforcement of judgments passed by the court and noted it was a major challenge.  Justice Asante explained that the “enforceability aspect of judgments has not been given to the court, it has been given to member states and member states have to have the political will to be able to enforce the judgment”. Pressure placed on governments by the media and civil society groups is sometimes relied upon for effective implementation. There are calls for citizens to be able to seek enforcement of ECOWAS judgments through the local courts in their countries to ensure compliance.
 
 

Prevalence of internet shutdowns 

The internet shutdown in Togo was not an isolated incident. According to Access Now’s 2019 report, 33 countries experienced internet shutdowns last year on at least 213 occasions. Internet shutdowns in Africa increased by 47% between 2018-2019, with several lasting longer than a month.

In Bangladesh, there were communications blackouts for a total of over 168 days, including twice targeting refugee camps where mostly Rohingyas reside. The Bangladeshi government has blamed violent crime in the camps for the restrictions. These shutdowns have continued in 2020 and, according to Human Rights Watch, amongst other things have impacted on medical workers’ ability to provide services and prevent disease outbreaks.

Following political unrest relating to the revocation of Kashmiri autonomy, the Indian government imposed an internet shutdown that lasted for 175 days and that continues to affect millions of Indian nationals residing in the region.

The case against Togo is not the first time a case has been filed at the ECOWAS Court for violations of freedom of expression. In 2015, the Federation of African Journalists and four individual Gambian journalists were arrested and detained by authorities because of their work and later fled the country out of fear of persecution. In 2018, the ECOWAS Court declared that the plaintiffs’ rights to expression, liberty and freedom of movement had been violated, and ordered Gambia to adjust laws that are incompatible with these rights.

The judgment against Togo is the first ECOWAS decision to confirm that internet shutdowns are unlawful. Given that in 2019, 25 internet shutdowns were recorded in Africa, it is hoped that member states will take steps to review their legislation surrounding internet showdowns and will be deterred from enacting them in the future. 
 

Right to Freedom of Expression during Protests

The right to freedom of expression is the cornerstone of democracy. Government attempts to quell citizens’ ability to challenge the status quo, speak truth to power or fight injustices is regressive and suggests that not all citizens are equal before the law. Freedom of expression during protests has become  important, both for awareness and for accountability.

As we have seen across the US during the recent Black Lives Matter protests, digital content shared on social media has become important evidence analysed by rights organisations such as Amnesty International. Their Crisis Evidence Lab has concluded that disproportionate and unlawful force has been used against peaceful protestors and that the US must investigate and prosecute.

Similarly, social media posts and other digital media have provided key evidence of police tactics in the UK Black Lives Matter Protests, revealing kettling as a tool used by the UK Government to restrict protestors movements.
 
Pádraig Hughes, Legal Director of the Media Legal Defence Initiative who represented the Togolese plaintiffs alongside Amnesty International stated that the ECOWAS judgment “should act as a warning to other governments considering using Internet shutdowns as a tool to silence dissent. Importantly the Court has ruled not only that the shutdown was illegal, but that it should not be repeated”.

This judgment provides hope to members of ECOWAS and to others worldwide, that governments can be held to account for internet shutdowns and other unlawful tools used to stifle freedom of expression.