Litigation

Freedom FM v. Cameroon

Court
African Commission on Human and Peoples’ Rights
Country
Cameroon
Status
Active
Case Lawyers

Denial of Broadcasting License

Freedom FM applied for a license to broadcast as an independent current affairs radio station in Douala, Cameroon in 2002. The government first ignored the application. It then shut Freedom FM down and brought criminal charges against its owner when the station announced a date for its first program. Broadcast licenses should be granted in a fair and transparent process that respects freedom of expression, yet Freedom FM is still not on the air. 

Facts

The case involves the arbitrary denial of a broadcasting license to a current affairs radio station, Cameroonian Radio Freedom FM. The station's equipment was forcefully confiscated and the studio sealed in May 2003, pursuant to an order from the Minister of Communications, just prior to an announced launch date.

The station applied for a broadcasting license in 2002 but never received a reply, even after the statutory deadline. The station began running technical tests. When the station announced a date for its first broadcast, charges were brought against it for operating without a license.

In June 2004, the Open Society Justice Initiative, acting on behalf of Radio Freedom FM and its founder, Pius Njawe, filed a communication with the African Commission on Human and Peoples' Rights, claiming violation of their free expression and other Charter rights. In addition, the Justice Initiative filed an urgent interim request for the release of the Freedom FM equipment. In July 2004, the commission asked the government of Cameroon to release the radio's equipment, pending full consideration of the case.

In June 2005, the parties signed a settlement agreement, whereby Cameroon agreed to drop the charges against Radio Freedom FM and Mr. Njawe, release the equipment, and grant the station provisional authorization to broadcast. The charges were dropped and the radio equipment was unsealed shortly thereafter. In early 2006, the government agreed to open discussions with the station concerning compensation for damages suffered. It promised to process the station's application for a broadcasting license in a fair, transparent, and expeditious manner once the communication before the African commission was discontinued.

In April 2006, the Justice Initiative asked the commission to discontinue the communication and register the settlement between the parties. However, the government reneged on the settlement by failing for more than a year to grant the station a license or even provisional authorization. As a result, in April 2007, the Justice Initiative requested the re-opening of the communication procedure and a full review of the case by the African Commission. It also requested the adoption of provisional measures requiring Cameroon to allow the radio station to go on the air while the case is pending.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative is representing Freedom FM before the African Commission on Human and Peoples' Rights and advising it in relation to amicable settlement negotiations.

Arguments

Free Expression. Cameroon's effective state monopoly on broadcasting, which ended only with the adoption of the April 2000 decree, violates Article 9 of the African Charter on Human and Peoples' Rights. In addition, the government's continued failure to consider the license application amounts to an arbitrary denial of the right of access to the airwaves. Cameroon's broadcasting laws and regulations are arbitrary and fail to guarantee the establishment of free and independent broadcast media.

Right to Property. Sealing off Freedom FM's equipment has deprived the complainants of their right to have access to, maintain, and dispose of their property under Article 14 of the Charter.

Discrimination. Article 2 guarantees the enjoyment of the charter provisions, including freedom of expression, "without distinction ... of political or other opinion." The Cameroonian authorities have violated the complainants' rights under Article 2 by withholding their broadcasting license specifically to prevent the operation of a current affairs radio station that would cover and comment on general social and political developments in the country.

September 18, 2019

On 18 September 2019 the African Commission on Human and Peoples' Rights handed down its decision [pdf]. The Commission agreed with the complainant that the amicable settlement had been ineffective, and found the respondent government’s licensing process and seizure of Freedom FM’s equipment to be in violation of articles 1, 2, 9 and 14 of the African Charter.

Admissibility

The government of Cameroon sought to have the complaint declared inadmissible on the basis that the parties had reached an amicable settlement. The Commission agreed with the complainant that the respondent government had not respected the terms of the settlement, noting in particular the Government’s continuing failure to respond to the Commission’s repeated requests for updates regarding compliance with the settlement agreement.

In a novel statement of law, the ACHPR highlighted the false equivalence between a matter being the subject of a settlement agreement, and a matter being settled within the meaning of Article 56(7) of the African Charter. The ACHPR noted that “that the prolonged silence and inaction of the Respondent State in granting Radio Freedom FM a broadcasting licence, which was one of the main terms of the amicable settlement, is a refusal by the Respondent State to honour its commitments and a violation of the amicable settlement concluded between the parties. This amounts to the nonimplementation of the amicable settlement which qualifies the case as one which has not been settled by the parties.”

Merits

On the right to freedom of expression

The Commission agreed with the complainant that the licensing authority was not independent and impartial, on the basis that the decision to licence rested with the Minister of Communication, who was appointed by the President.

The Commission also found that the licensing process in itself was unlawful insofar as the relevant law failed to outline the scope of discretion of the competent authorities as well as the substantive criteria to be met for the licence application to be successful. Furthermore, there was no requirement on the decision-makers to provide reasons, and there was no mechanism to challenge the outcome of the licensing application. 

The licensing process was neither provided for by law, nor fair and transparent. The Commission accordingly found a violation of Article 9 of the Charter.

On the right to non-discrimination

In the absence of a response or justification by the government of Cameroon to the discrimination allegations raised by the complainant, the Commission found that the latter had presented sufficient facts from which it could be presumed that there was politically-motivated discrimination at play in the licensing process. In the Commission’s view, the complainant could not, as requested by the respondent government, be reasonably expected to be in possession of a list of all the audio-visual communication enterprises whose applications were favourably considered. It was therefore “clear that the Complainant has identified a comparator to the extent of the information available to it”.

The Commission accordingly found a violation of Article 2 of the Charter.

On the right to property

The Commission considered that the order to seal the premises of Freedom FM was unlawful as it had not been issued or evaluated by a court of law.

There was therefore a violation of Article 14.

Reparations

The Commission awarded the complainant damages in the amount of $110,000, in addition to costs, loss of earnings, and moral damages.


November 2016

The African Commission defers its consideration of the submissions due to time constraints at its 59th Ordinary Session.

March 2016

The African Commission defers its consideration of the submissions due to time constraints at its 19th Extra-Ordinary Session.

January 2016

The Justice Initiative submits to renew the request for consideration of the merits of the case at its upcoming 19th Extra-Ordinary Session.

November 2015

The African Commission defers its consideration of the submissions due to time constraints at its 57th Ordinary Session.

August 2015

The African Commission defers its consideration of the submissions due to time constraints at its 18th Extra-Ordinary Session.

March 2015

The African Commission defers its consideration of the submissions due to time constraints at its 17th Extra-Ordinary Session.

May 2015

The African Commission defers its consideration of the submissions due to time constraints at its 56th Ordinary Session.

September 2014

The Justice Initiative requests the African Commission to consider the merits of the case at its 56th Ordinary Session.

July 2014

The African Commission defers its
consideration of the submissions due to time constraints
at its 16 Extra-Ordinary Session.

May 2014

The African Commission defers its consideration of the submissions pending receipt of Merits submissions from the Government of Cameroon.

April 2014

The African Commission defers its consideration of the submissions pending receipt of Merits submissions from the Government of Cameroon.

January 2014

The Justice Initiative files submissions on the merits of the case.

February 2013

The African Commission declares the petition admissible but decides to strike out the case due to a clerical miscommunication. The petition is later reinstated at the request of the Justice Initiative.

July 2010

Pius Njawe, the main petitioner and president of Free Media Group (formerly Le Messager Group), dies in a traffic accident. The Commission accepts the request of his heirs and Free Media Group to continue the proceedings.

February 2010

The Government of Cameroon submits its observations on the admissibility of the case, which are transmitted to the Justice Initiative in October 2010.

May 2008

The Justice Initiative files a submission on admissibility before the African Commission.

April 2007

The Justice Initiative requests a reopening of the communication procedure due to failure of Cameroon to comply with the settlement.

June 2005

Amicable settlement is agreed to by both parties.

June 2004

The Justice Initiative files communication and a request for precautionary measures with the African Commission on Human and Peoples' Rights.

May 2003

Freedom FM's equipment is confiscated and charges brought against station founder.

October 2002

Freedom FM applies for a broadcasting license.

May 05, 2008
Submission on Admissibility Download the 17-page document. Download
June 21, 2004
Request for Precautionary Measures Download the five-page document. Download
June 21, 2004
Communication Download the 26-page document. Download

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