Borrowing, rephrasing, or inventing? How the African Commission and Court on Human and Peoples’ Rights have filled the gap on legitimate restrictions to freedom of expression

Abstract

The African Charter on Human and Peoples’ Rights (ACHPR) does not contain a list of legitimate aims for the lawful restriction of freedom of expression. Article 9 ACHPR only provides a general formulation, leaving a wide margin to interpretation. Nevertheless, legitimate aims analysis is part and parcel of the case-law of the African Commission and Court on Human and Peoples’ Rights. This article investigates how the two African bodies identified and applied legitimate aims for the restrictions of freedom of expression, comparing it with the law and practice of the European and the Inter-American courts. By reviewing all the cases on freedom of expression decided to date, the article shows that the African Court and Commission have filled the gap of Article 9 ACHPR by either borrowing legitimate aims from international instruments, rephrasing existing language in African or international documents, or inventing completely new grounds.