For the first time in its eight-year tenure, the African Court on Human and Peoples’ Rights (African Court) has directly considered the right to freedom of expression, and the validity of legislation that criminalizes defamation. The case, Lohé Issa Konaté v. Burkina Faso, involved a journalist’s conviction, imprisonment, and substantial fine in connection with his reporting. [AfCHPR Press Release] In its decision, the African Court unanimously found that Burkina Faso violated Article 9 (freedom of expression) of the African Charter on Human and Peoples’ Rights (African Charter), Article 19 (freedom of expression) of the International Covenant on Civil and Political Rights (ICCPR), and Article 66(2) (the press) of the Revised Treaty of the Economic Community of West African States (Revised ECOWAS Treaty) by imposing a sentence that was disproportionate to the purpose of the State’s national laws. AfCHPR, Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Judgment of 5 December 2014.
Regarding the African Court’s decision, the regional Special Rapporteur on Freedom of Expression and Access to Information in Africa Faith Pansy Tlakula stated:
This is a landmark decision that will change the free expression landscape on the African Continent. The decision will not only give impetus to the continent-wide campaign to decriminalise defamation but will also pave the way for the decriminalisation of similar law such as insult laws and publication of false news.
Facts of the Case
In August 2012, Mr. Lohé Issa Konaté, a contributing editor for the weekly newspaper L’Ouragan, published several articles about the allegedly corrupt practices of a state prosecutor, Mr. Placide Nikiéma. The articles claimed that Nikiéma had unlawfully interceded in cases concerning alleged currency counterfeiting and illegal trading in second-hand cars. [Media Legal Defence Initiative] In a case won by Nikiéma before the Ouagadougou High Court and later affirmed by the Ouagadougou Court of Appeals, Konaté was found to have committed defamation, public insult, and insult of a magistrate. Konaté, along with L’Ouragan’s editor-in-chief Roland Ouédraogo, was sentenced to 12 months’ imprisonment and ordered to pay a fine of US $2,900 and compensation of US $7,800 to Nikiéma. [Civicus] The court also ordered publication of L’Ouragan to be suspended for six months. [Media Legal Defence Initiative]
Media Legal Defence Initiative represented Mr. Konate before the African Court on Human and Peoples’ Rights. [PALU] At least 18 media and human rights organizations intervened as amici curiae during the proceedings, addressing the use of criminal defamation laws to silence journalists in Burkina Faso and other African countries. [PEN International]
The African Court’s Discussion of the Right to Freedom of Expression
In its decision, the African Court held that Burkina Faso violated Article 9 of the African Charter, Article 19 of the ICCPR, and Article 66(2)(c) of the Revised ECOWAS Treaty. It stated that the sentences were “disproportionate to the aim pursued by the relevant provision of the Information Code and the Burkinabe Penal Code” and ordered the State to amend its legislation so that it conforms to the relevant provisions of the three treaties and to report on its implementation measures within two years. [AfCHPR Press Release]
The African Court’s decision is significant: it is the first decision by the tribunal that holds that defamation should be criminalized only in limited circumstances and that imprisonment for defamation violates the right to free speech. [Committee to Protect Journalists] According to Sue Valentine of the Committee to Protect Journalists, the decision sets the important precedent that “[n]o journalist should be jailed for defamation. If remedy is needed, it should be sought in the civil courts.” [Committee to Protect Journalists] Particularly in light of the number of African States that “still enforce harsh criminal libel laws against journalists,” the decision could represent a turning point for African journalists and citizens of Africa in general. [Media Legal Defence Initiative]
Other Decisions Concerning Free Speech, Journalists, and Defamation
In a previous case concerning Burkina Faso’s treatment of journalists, the African Court considered whether the State’s failure to investigate, prosecute, and punish the individuals responsible for assassinating investigative journalist Norbert Zongo and his companions violated its obligation to act with due diligence. [AfCHPR: Zongo Press Release] The African Court held that the State had violated articles 7 and 9(2) of the African Charter, read together with Article 66(2) of the Revised ECOWAS Treaty, by failing to take steps beyond those that were merely legislative to ensure that the perpetrators of the assassinations were brought to justice. See AfCHPR, Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v. Burkina Faso, App. No. 013/2011, Judgment of 21 June 2013 (Judgment available only in French).
The African Court’s regional counterpart, the African Commission on Human and Peoples’ Rights (African Commission), has also addressed the rights of journalists. The case of Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, for example, concerned the physical attack and sexual assault of four female journalists during a May 2005 demonstration calling for a referendum to amend the Egyptian Constitution. Finding that the attacks were “designed to silence women who were participating in the demonstration and deter activism in the political affairs” of Egypt, the Commission held that Egypt’s failure to protect the journalists violated Article 9(2) of the African Charter. ACommHPR, Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, Communication No. 323/2006, 10th Extraordinary Session, 16 December 2011, paras. 239-56.
In Article 19 v. Eritrea, the African Commission addressed a ban on the private press and the incommunicado detention of journalists and political dissidents in Eritrea following a political crisis and the cancellation of the country’s upcoming general elections. There, the African Commission found that the ban on the private press violated Article 9 of the African Charter because it deprived both the journalists’ right to freely express and disseminate their opinions and the public’s right to receive information. The wholesale nature of the ban was especially problematic, since the free press, according to the Commission, is “one of the tenets of a democratic society, and a valuable check on potential excesses by government.” ACommHPR, Article 19 v. Eritrea, Communication No. 275/2003, 41st Ordinary Session, 30 May 2007, paras. 104-08.
The criminalization of speech that criticizes public officials was at issue in a case against Mauritania, in which the release of a document titled Le Manifeste des negro-mauritaniens opprimés, or Manifesto of the Oppressed Black Mauritanians, led to the arrest and prosecution of over 30 individuals. The African Commission held there that the trials of these individuals violated the right to freedom of expression because the Manifesto was simply “calling for a dialogue with the government” and “did not contain any incitement to violence.” ACommHPR, Malawi African Association, Amnesty Internationa, Ls. Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme v. Mauritania, Communication Nos. 54/1991, 61/1991, 96/1993, 98/1993, 164/1997, 196/1997, 210/1998, 27th Ordinary Session, 11 May 2000, paras. 101-04.
The African Court on Human and People’s Rights
The African Court on Human and Peoples’ Rights is a regional human rights tribunal and the judicial organ of the African human rights system. Established by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples Rights (Protocol Establishing the African Court), the African Court decides complaints brought by the African Commission, intergovernmental organizations, and States, against States that are party to the Protocol Establishing the African Court. The African Court may also decide complaints brought by individuals and nongovernmental organizations against States that have issued declarations accepting the Court’s jurisdiction with respect to these complainants. Burkina Faso made such a declaration on July 14, 1998.