On 5 December 2014, the African Court on Human and Peoples’ Rights (the “Court”) delivered its ground breaking judgment on freedom of expression in Lohé Issa Konaté v Burkina Faso (Application No 004/2013). It is ground breaking in two distinct respects. Firstly, it is the first Judgment of the Court to focus on the substantive issue of freedom of expression. Secondly, the Court narrowly defined the circumstances under which freedom of expression may be limited by the imposition of custodial sanctions, thus bringing into question the criminal defamation laws of many African States. The Judgment has been widely reported on, but what does it actually say?
Lohé Issa Konaté, the Applicant, was the editor, manager and founder of a small independent newspaper called L’Ouragan. The newspaper had been reporting on political and societal issues in Burkina Faso for over 20 years, and had a weekly distribution of around 5,000 copies. Mr Konaté would often write pieces himself, or rely on the input of freelance journalists.
In August 2012, L’Ouragan published three articles that heavily criticised the State Prosecutor, Placide Nikiéma. Two of the articles, which were written by Mr Konaté, discussed Mr Nikiéma’s alleged ties with criminal activity. The first article implied that Mr Nikiéma had exerted pressure on police officers to drop charges against a number of suspects in relation to a bank note counterfeiting scheme, having been contacted by an official at a local bank who had been involved in the scheme. The second article questioned Mr Nikiéma’s ties with a number of people who were suspected of being involved in the illegal trade of used cars between Italy and Burkina Faso.
On 9 October 2012, Mr Nikiéma filed a complaint against Mr Konaté and one of his contributors. This was followed by a criminal prosecution. The Criminal Chamber of the Tribunal de Grande Instance of Ouagadougou found Mr Konaté and his contributor guilty of defamation, public insult, and insult to a magistrate under Burkina Faso’s Information Law and Penal Code. This conviction was upheld on appeal. Mr Konaté received a 12 month prison sentence, and received a fine of FCFA 1,500,000 ($3,000). He was also liable for civil damages and costs to Mr Nikiéma which amounted to FCFA 4,750,000 ($9,500). These penalties were accompanied by an order suspending L’Ouragan for a period of six months, and the publication of the judgment in three consecutive issues of three national newspapers at the Applicant’s expense. Once L’Ouragan resumed publication, it was also mandated to publish the judgment in its newspaper for a period of four months.
The African Court distinguished between those violations of the right to freedom of expression which flowed from the laws on criminal defamation themselves, and those violations which were committed by the enforcement of those laws against Mr Konaté by the Burkinabé courts.
The Information Law and Penal Code
The Court had little difficulty in finding that the relevant provisions of the Information Law and Penal Code interfered with the right to freedom of expression. Instead, the Judgment primarily focused on whether the restrictions inherent in the Information Law and Penal Code could be legitimately justified with reference to the African Charter on Human and Peoples’ Rights (the African Charter) and the International Covenant on Civil and Political Rights (the ICCPR). On this basis, it was left for the Court to decide whether restrictions were provided by law, served a legitimate purpose, and were necessary to achieve a set objective.
- Provided By Law: The Court found that restrictions were “provided by law” as they formed part of the Information Law and Penal Code which represented the law as it existed in Burkina Faso. The African Court also found that the relevant provisions were drafted with sufficient clarity to enable an individual to adapt his conduct, and enable those responsible for their application to determine what forms of expression can be legitimately restricted.
- Serve a Legitimate Purpose: The Court found that the only legitimate purposes for limiting the right are to be ascertained from Article 27(2) of the African Charter which states that rights “shall be exercised in respect of the rights of others, collective security, morality and common interest.” The Court also took note of the legitimate purposes detailed in Article 19 of the ICCPR. The Court conceded that the aim of the laws was to protect “the honour and reputation of the person or a profession”. Article 178 of the Penal Code was tailored more specifically to protect the honour and reputation of magistrates, jurors and assessors in the performance of their duties or in the course of performing their duties. The African Court found this to be a “perfectly legitimate objective” thatwas in line with international standards.
- Necessary to Achieve a Set Objective: The Court stated that the necessity and proportionality of a restriction on freedom of expression must be assessed within the context of a democratic society:
- Public Figures: In carrying out this assessment, the Court deemed it necessary to consider the function of the person whose rights are to be protected. The Court was of the view that the need for the limitation varied depending on whether the person is a public figure or not, and stated that “freedom of expression in a democratic society must be subject to a lesser degree of interference when it occurs in the context of debate relating to public figures.” The Court noted that those who hold highly visible public roles necessarily face a higher degree of criticism than private citizens, and so are expected to have a higher degree of tolerance. Consequently, the Court had no hesitation in finding a prosecutor to be a “public figure” for these purposes. The Court then went on to state that laws protecting the reputation of “public figures”, such as members of the judiciary, should not provide more severe sanctions than those relating to offenses against the honour or reputation of an ordinary individual.
- Custodial Sentences: Burkina Faso failed to show how the penalty of imprisonment was a necessary limitation on freedom of expression in order to protect the rights and reputations of members of the judiciary. Consequently, the Court found that the relevant provisions of the Information Law and Penal Code were contrary to Article 9 of the African Charter and Article 19 of the ICCPR. The Court also narrowly defined the circumstances under which custodial sentences can be used as a legitimate interference with the right to freedom of expression:
“Apart from serious and very exceptional circumstances for example, defence of international crimes, public incitement to hatred, discrimination or violence or threats of violence against a person or a group of people, because of specific criteria such as race, colour, religion or nationality, the Court is of the view that the violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences, without going contrary to [the African Charter and the ICCPR].” [Unofficial Translation]”
- Journalists: The Court took note of the fact that the Applicant had also relied on Article 66(2)(c) of the Treaty establishing the Economic Community of West African States (the ECOWAS Treaty), which had been ratified by Burkina Faso, under which States undertake to “respect the rights of journalists.” The Court found that Burkina Faso had failed under this duty as custodial sentences under the laws constituted a disproportionate interference in the exercise of the right to freedom of expression by journalists.
- Criminal Sanctions: The Court took note of the fact that Burkina Faso appeared to recognise the merits of decriminalising defamation. It further noted that all sanctions of a criminal nature, including civil fines, are to be subject to the criteria of necessity and proportionality under international law.
Enforcement of the Laws
In light of the above, the Court held that the enforcement of a custodial sentence as provided by the Information Law and Penal Code was inconsistent with the African Charter, the ICCPR and the ECOWAS Treaty. Moreover, Burkina Faso had failed to show that the other penalties were necessary and proportionate for the purpose of protecting the rights and reputation of Mr Nikiéma. For instance, the financial penalty against Mr Konaté was 20 times the GDP per capita in Burkina Faso. The Court further opined that “[t]he amounts of the fine, damages, interests and costs seem all the more excessive in that the Applicant was deprived of revenue from publishing the weekly, due to its suspension for a period of six months.” As a result, the courts had failed in their obligation to comply with the provisions of Article 9 of the African Charter, Article 19 ICCPR and Article 66(2)(c) of the ECOWAS Treaty by imposing these penalties.
This Judgment will undoubtedly have a significant impact on the shaping of the right to freedom of expression in Africa. The Judgment offers an authoritative interpretation of the African Charter which has been signed and ratified by 36 African States. In its interpretation, the Court has narrowly defined the circumstances under which custodial sanctions can be used to punish expression. In fact, the Court has limited such sanctions to the punishment of hate speech and instances where a person defends international crimes such as genocide. It also found against the use of greater sanctions to protect the honour and reputation of “public figures” compared to those protecting the honour and reputation of ordinary individuals. In the instant case, the Court was also highly critical of the smorgasbord of penalties applied to Mr Konaté for defaming Mr Nikiéma, finding such an approach to be excessive. The Judgment, therefore, brings into question the criminal defamation laws of many African States. It is also a particularly strong pronouncement on the importance of the duty to “respect the rights of journalists”.
As the first Judgment of the Court to consider freedom of expression, it is a welcome addition to regional human rights law on the issue. Its impact has already been felt at national level having been cited by a defendant in a criminal defamation case in Uganda’s Court at City Hall in Kampala. The Judgment itself also leaves room for further jurisprudence advancing freedom of expression in Africa, making the African Court a regional human rights court to watch in the future.