PALU is delighted to announce the decision of the African Court on Human and Peoples’ Rights African Court) in the case of Application 04/2013: Konaté v Burkina Faso (the Konaté Case) which was delivered on 5 December 2014.
In 2012 Issa Lohé Konaté, the editor of the Burkina Faso-based weekly L’Ouragan, was arrested, tried and convicted of defaming Burkinabé State Prosecutor, Placide Nikiéma sentenced to 12 months in prison and fined 4 000 000 CFA francs (6 000 Euros). The arrest was a result of him publishing two articles that raised questions about the functioning of a local State Prosecutor. The articles raised questions about alleged abuse of power by the prosecutor’s office, particularly in the handling of a high-profile case of currency counterfeiting.
In his application to the African Court dated 17 June 2013, Mr. Konate represented by Nani Jansen, alleged a violation of Article 9 of the African Charter on Human and Peoples’ Rights (African Charter), Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Art. 66 of the ECOWAS revised treaty. The Applicant’s prayers were that: the Court declares to rule that imprisonment for defamation violates the right to freedom of expression; that criminal defamation laws should only be used in restricted circumstances; that the Court orders Burkina Faso to amend its national laws that restrict freedom of expression and that Burkina Faso pays him reparation for all the losses he incurred including a loss of income.
In March 2014, 18 Civil Society Organizations and Non-Governmental Organizations including PALU intervened as amici curiae (friends of the court) in the Konaté case at the African Court in Arusha, Tanzania, to address growing concerns over the use of criminal defamation laws to censor journalists and others in Africa. The group represented by PALU CEO, Donald Deya, together with Simon Delaney of Delaney Attorneys argued that criminal defamation and insult laws are incompatible with freedom of expression and severely undermine the democratic rights of the media and concerned citizens to hold their governments to account. Governments routinely use these laws to silence critical voices and to deprive the public of information about the misconduct of officials. The systematic denial of freedom of expression leads countries down a slippery slope towards impunity and authoritarianism. A clear nexus links censorship to bad governance. A democratic society cannot function without an active commitment to freedom of expression. Burkina Faso’s criminal defamation laws, like those in many African countries, are a relic of colonialism. These laws are incompatible with an independent, democratic Africa. Approximately 95% of the countries in the world have criminal libel laws. In 2013, 211 journalists were imprisoned for carrying out their work. African countries are amongst the worst offenders in using criminal defamation laws to fine and imprison journalists.
The application was ruled admissible and the Court made a ruling based on the merits. The Court decided:
•Unanimously that Respondent state was in violation of Art. 9 of the African Charter, Art 19 of ICCPR, Art. 44 of revised ECOWAS treaty;
•Violations of freedom of expression cannot be sanctioned by imprisonment. By majority of 6 to 4 it was held that the existing non-custodial sanctions did not violate Art. 9 of African Charter, Art. 19 of ICCPR, Art. 66 of revised ECOWAS treaty. However, sanctions must not only be civil but also proportionate to violation otherwise they are incompatible with Charter;
•Unanimously each party shall bear its own costs;
•Restrictions must serve a legitimate aim, all sentences passed by the High Court and Court of Appeal were disproportionate to the crime that was alleged to have been committed.
The Court ordered:
•That the Respondent State repeals custodial sentences, and passes legislation that meets proportionality and necessity requirements. This to be done within a reasonable time not exceeding two years.
•The Respondent State to compensate the Applicant for losses incurred. The Applicant was instructed to submit a brief on reparations within 30 days. The Respondent should respond within 30 days after receipt of the brief.