Statement by the United Nations Special Rapporteur on the situation of Human Rights Defenders, Margaret Sekaggya, at the end of her visit to Togo (7 to 11 October 2013)

11 October 2013

Good morning, ladies and gentlemen,

Let me begin by warmly thanking the Government of Togo for inviting me to visit the country once again. As you know, I first came to the country in 2008 when the country was just starting the transition and reconciliation process. A lot has happened since then and I decided to conduct this visit to follow up on the situation of defenders.

The objective of this visit has been to re-assess, in the same spirit of cooperation and dialogue, the environment in which human rights defenders operate with respect to the observations and recommendations I made in my first report. Today, I will confine myself to some preliminary observations and recommendations on issues that, along with others, will be elaborated in more detail in my full report once I have studied the materials gathered during the visit. My final report will be presented at the 25th Session of the Human Rights Council in Geneva, in March 2014.

I would like to commend the Government of Togo for its cooperation during my visit. I have met with the Prime Minister. I also met with officials from the Ministries of Foreign Affairs; Human Rights and Consolidation of Democracy; Security and Civil Protection, including the Police; Ministry of Justice, and Labour. I had a chance to meet with the President of the Supreme Court. I met with the High Authority for Audio-visual Communication (HAAC) and met with the Vice-President and members and staff of the National Human Rights Commission. I also had a meeting with the Bar Association.

During this visit, I met with the members of the UNCT as well as with members of the diplomatic corps. I have also had meetings with a wide range of defenders and Togolese civil society, including a number of defenders coming from the regions. I would like to thank everyone who took the time to meet with me and shared their valuable experiences and insights. I would like to express my sincere appreciation to the Office of High Commissioner for Human Rights in Togo for helping to organise this visit and providing the necessary support.

Togo has gone a long way in the process of democratisation and national reconciliation since 2008. The Truth, Justice and Reconciliation Commission (CVJR) was established, defenders were involved in the process and the Commission delivered its recommendations in April 2012. Last parliamentary elections have taken place in a peaceful way and the country has worked towards consolidating democracy and promoting inclusive participation.

During this visit I have been able to assess progress in national reconciliation and the consolidation of the legal and institutional framework. I have seen positive developments in areas such as freedom of expression and freedom of assembly, the work of women defenders, and the commitment of the Government to comply with its international obligations through engagement with UN human rights mechanisms, including the Treaty Bodies and the Universal Periodic Review. Still, important challenges remain.

Legal and institutional framework

I was pleased to learn that authorities are trying to strengthen the Togolese legal and institutional framework in line with the Universal Periodic Review (UPR) and their work with the UN Treaty Bodies. Some important developments include amendments to the Criminal Code, notably a definition of torture, and the Individuals and Family Code with a view to incorporate various international human rights instruments and comply with its international obligations. There is now a need to expedite the adoption of such amendments and implement these reforms so that Togolese people can see real change. I have also encouraged the Government to ratify those UN Treaty to which it is not yet a party, including the Rome Statute.

There still remain important challenges around the judicial system and there is a perception that the impact of reform programme has not been sufficient. Independence of the judiciary, access to justice, and impunity for human rights violations have been raised as one of the major difficulties in the transition and democratisation process. I was pleased to learn about initiatives to improve the working conditions of judges at the Supreme Court level as well as to strengthen their capacities and access to necessary resources. Strengthening of the judiciary should continue to be a priority for the Government and international donors.

Overall, defenders are able to carry out their work in Togo, and civil society has flourished in the past few years. However some important challenges, which were raised already during my first visit, still remain. They include the implementation of the legal framework governing fundamental freedoms as well as the role and situation of certain key institutions, and the polarisation of the environment in which defenders operate. I will now briefly highlight some of these challenges, which will be further developed in my report.

Freedom of opinion and expression
During my previous visit, I expressed concern about instance of intimidation and harassment against the media and illegitimate restrictions to freedom of expression of those working on human rights issues. I also warned about the lack of professionalism of certain media and advised journalists to enhance the credibility of their profession by raising the standards of their work.

I have to say that I am very worried to see that the situation seems to have worsened and that the environment in which media operate appears even more polarised than when I first visited the country in 2008. Media outlets and journalists work in a highly politicised environment where positions are easily associated to political views and even political parties. Journalism is very young in the country and not always exercised with enough professionalism or respect for basic ethical and deontological principles. This makes it all too easy for certain authorities and other stakeholders to brand media and journalists as politically motivated and discredit their work. I welcome recent discussions on freedom of expression facilitated by OHCHR-Togo which have resulted in the desire of journalists to do an overall assessment of their role and conditions.

Notwithstanding, I am concerned about the existence of defamation as a criminal offence in the Criminal Code (art. 58), which carries heavy penalties. The criminalization of defamation has a chilling effect and leads to self-censorship by certain human rights defenders, particularly journalists. It also leads to a considerable reduction of the space to exercise the fundamental right to freedom of expression, which is a key right to claim other rights. Defamation should be handled in the civil jurisdiction with penalties that are proportionate to the harm done.

I am particularly concerned about testimonies of harassment and intimidation of journalists who work on human rights-related issues, report on public interest information, handle corruption cases of Government officials or publically criticize the Government. Some of them have faced criminal lawsuits for defamation, which carry excessively high penalties, or charges under the Press and Communications Code. Such actions could unduly restrict the exercise of a fundamental rights and contribute to the stigmatisation of the work of the media and journalists.

The High Audio-visual authority (HAAC)
Since my last visit, the HAAC has seen its regulatory and disciplinary powers strengthened with the last reform to the law governing the institution in 2013 which amended the 2009 text. It seems that this has been a reaction to the deterioration of the environment in which media operate, as I have just briefly described. However, while regulation by an independent body might be at times necessary, I believe that self-regulation would help in engaging the media and journalists themselves and make them bring credibility back to the profession. Media and journalists need to strengthen capacities and be supported by all stakeholders in this process.

Freedom of peaceful assembly
In 2011, a new law on peaceful assembly was adopted which has improved and clarified the framework governing the exercise of this basic freedom. However, during my visit, I have learned about some instances where peaceful assemblies were faced with the excessive use of force by police or even caused casualties. The unfortunate incident in Dapaong in April 2013 was brought to my attention where two students died due to the intervention of the police during demonstrations in support of the strike of teachers claiming better working conditions. Police and law enforcement personnel should continue to be trained in crowd control and be properly equipped to handle protests.

I have also been informed about violent acts committed by demonstrators, particularly around election periods. Defenders must ensure that they exercise the right to assembly in a peaceful manner and they should assist in monitoring demonstrations, ensuring that those who demonstrate do it peacefully.

Freedom of association and labour rights
I raised the issue of the registration certificate and the excessive delays during my previous visit but this seems to have been improved. I still believe that the existing legal framework should be reviewed with a view to move towards a regime of notification where organizations are not required to register with the authorities in order to be able to operate. The notification procedure should be clearly established in law and not be burdensome or costly.

During this visit I have learned about the environment in which trade unions operate, including the exercise of the right to collective bargaining and strike. This is a new issue that was not raised during my first visit. Now I have been able to assess that, while progress has been made in the past few years mostly regarding the legal framework in place, trade unions and those claiming labour rights face significant challenges, including in the export processing zones.

Member of trade unions are still fired, demoted or harassed in the workplace and certain unions have also faced threats in connection to their works. The situation of teachers and the unfortunate incident in Dapaong around their strike was again brought to my attention.

The right to claim for the respect and exercise of basic labour rights should be protected. Unions and members should be able work in a conducive environment, particularly in the export processing zones, where they can carry out their activities without fear of intimidation or harassment of any sort.

Ministry of Human Rights and Consolidation of Democracy
I was pleased to hear that civil society is regularly consulted by the Ministry including during the UPR process which also brought together authorities and civil society. However, I am concerned that the civil society unit lacks the necessary resources to properly carry out its activities, including capacity building of defenders and their own staff.

The Ministry of Human Rights and Consolidation of Democracy will facilitate the work of the newly established High Commissioner for National Reconciliation and Strengthening of National Unity, which will be responsible for carrying out the recommendations of the Truth, Justice and Reconciliation Commission. Victims and Togolese society are eagerly waiting to see the effective implementation of the recommendations to move a step forward in the reconciliation process.

National Human Rights Commission of Togo (CNDH)
As a result of my visit in 2008, I was pleased to note the mediation role played by the Commission and the fact that it was considering to establish a focal point for defenders something which I considered a best practice to be replicated elsewhere. I warned about the chronic lack of funding of the Commission and the lack of visibility within the State apparatus and parts of civil society.

During this visit, I met with the Commission and was able to asses that the framework for engagement with defenders is not well established and the Commission operates on the basis of bilateral meetings and partnerships. The focal point for defenders was set up and it is functioning, although it was highlighted that defenders not always report their issues to the Commission due to a perceived lack of trust in the institution and, generally, in the State apparatus.

I expressed my concern about the situation created around the publication in 2012 of a report by the Commission on allegations of torture and ill-treatment in the premises of the National Security Agency. As a result of the publication of the report, the President of the Commission, Mr. Kounté, left the country for fear of his life and is still is France. The Commission has been following on the implementation of the recommendations of this report.

The situation of certain groups of defenders in Togo
As I have indicated, the environment in which defenders operate in Togo continues to be very polarised and politicised with regards to what I had observed in 2008. Moreover, certain initiatives have led some groups of human rights defenders to actively engage in political activities in the context of the 2013 Parliamentary elections. This has undermined the environment in which defenders operate and has, unfortunately, reinforced the existing tendency of certain authorities and some media to stigmatise their work.

I called upon defenders and other actors during my visit to work in an impartial, independent and objective way. Civil society working on human rights issues should check on the State, its obligations and objectively document and report on violations. I was reassured by the fact that defenders are aware of this and some groups are already working to re-establish the credibility of their role. Defenders need to be supported in this process, including financially.

During my visit, I followed up on the situation of particular groups of defenders, such as women defenders and those working against discrimination on the basis of sexual orientation and gender identity.

Women human rights defenders
In 2008, I highlighted the plight of women defenders and noted the particular difficulty of those women working in rural areas and the attitude of some local authorities regarding their work. During this visit, I have been able to assess important progress in the context in which women defenders work, including regarding relevant legislation (Family Code) and certain change in how authorities perceive their role.

However, important challenges still remain, mostly concerning societal attitudes, cultural practices and perceptions of the work women defenders do. They are still too often seen as “trouble makers” due to their activism, particularly if they work on sexual and reproductive rights, and they lack the necessary resources to have more impact on the ground. The situation of those working in rural areas is even more challenging as they operate in remote locations and are often more exposed to pressure from family, authorities and society without the support of networks.

Defenders working against discrimination on the basis of sexual orientation and gender identity
This is a new group that I have identified during this visit due to the fact many of those working on these issues have only organized themselves in the past few years often doing work on HIV-AIDS and health-related issues.

The environment in which these defenders operate is very difficult and hostile, mostly due to pressure from society and families. I am also concerned about the use of certain legal provisions by law enforcement officials without proper investigation of facts when it comes to accusations against defenders and activists. This group of defenders face threats, intimidation and harassment in connection to their activities and to their own sexual orientation. Such incidents are not always reported for fear of criminal charges and societal stigmatisation. The coverage of the issue by certain media seems to have contributed to exposing them to more risks.

Authorities should do their utmost to ensure that these defenders can work in a safe and enabling environment, including by considering the revision of the relevant legal framework (art.88 of the Criminal Code) and by supporting their work.

Preliminary Recommendations
I would like to commend the Government of Togo for the progress made over the past few years regarding the environment in which defenders operate and I would like to put forth the following preliminary recommendations:

To the Government

• Expedite the ratification of those UN international treaties to which Togo is not yet a party and consider ratifying the Rome Statute;
• Publically acknowledge and raise awareness about the importance of the role of defenders, particularly women defenders, in society and foster a spirit of dialogue and constructive criticism;
• Improve on the processes and time frames within which laws are made;
• Ensure that the reform of the Penal Code currently underway is expedited and fully implemented;
• Ensure that defamation is only punishable under civil law and that compensation provided is proportionate to the harm done;
• Ensure full independence and effectiveness of the High Audio-visual Authority (HAAC) and the National Human Rights Commission (CNDH);
• Ensure that the recommendations from the Truth, Justice and Reconciliation Commission (CVJR) are implemented and allocate the necessary resources for this task;
• Ensure that the recommendations by the National Commission in its 2012 report on torture are implemented, that those considered responsible for such acts are brought to justice; and take the necessary measures to ensure that Mr. Kounté and his family are safe;
• Consider allegations and reports of violence, intimidation and harassment on human rights defenders; conduct prompt and impartial investigations accordingly and hold perpetrators accountable;
• Strengthen the training of the police and security forces in crowd control and human rights standards, including proportionate use of force and the role of defenders; and promptly investigate any allegations of human rights violations and hold perpetrators accountable;
• Ensure that labour rights, including collective bargaining and the right to strike, can be exercised without undue restrictions or intimidations of any sort.

To the HACC

• Exercise regulatory powers with due diligence and attention to the balance between ethics and the right to freedom of opinion and expression;
• Consider strengthening existing self-regulatory mechanisms with a view to involve journalists and the media in the exercise of this function;
• Ensure that journalists and the media are supported and trained in basic deontological principles of the profession.

To the National Human Rights Commission

• Implement the recommendations of the Sub-Committee on Accreditation of the International Coordinating Committee of National Human Rights Institutions in order to strengthen the independence and effectiveness of the institution;
• Ensure responsiveness and accessibility of the institution to all citizens and actively engage with all groups of human rights defenders, in particular those working on women’s rights and against discrimination on the basis of sexual orientation and gender identity.

To human rights defenders

• Carry out the work professionally in order to hold the State accountable and maintain dialogue with authorities to ensure the advancement of the protection and promotion of human rights;
• Strengthen existing networks and ensure they function effectively, both in urban and rural areas;
• Media and journalists working on human rights issues should carry out their work by observing professional ethics and deontological principles;
• Ensure the dissemination of information about the UN Declaration on human rights defenders and the role of defenders at the domestic level.
• Ensure that demonstrations are carried out in a peaceful manner, properly monitored and that violations are documented and reported.

To the UN and the international community

• Continue supporting the transition and democratisation process in Togo, in particular the strengthening of the justice sector;
• Continue supporting the consolidation of civil society and human rights defenders in the country, in particular by building capacities to carry out their work more effectively.

As mentioned, these preliminary observations and recommendations will form the basis for the report I will present to the next session of the UN Human Rights Council, which will take place in Geneva in March 2014.

Thank you for your attention.