By Samantha Godec, May 2015
Application No 004/2013 Lohé Issa Konaté v Burkina Faso
This case concerned the criminalisation of defamation in Burkina Faso and the consequent restrictions on freedom of expression in the media. The Applicant, Mr. Lohé Issa Konaté, is a contributing editor for a weekly newspaper, L’Ouragan. In August 2012, he published two articles pertaining to the allegedly corrupt practices of a state prosecutor, Mr. Placide Nikiéma.
The Ouagadougou High Court found Konaté guilty of defamation, public insult, and contempt of court (insult of a magistrate). This decision was affirmed by the Ouagadougou Court of Appeal. Following conviction, Konaté was sentenced to 12 months’ imprisonment and ordered to pay a fine equivalent to US $2,900, damages to Nikiéma equivalent to US $7,800, and costs equivalent to $500. The court also ordered the suspension of L’Ouragan for six months.
In subsequent proceedings before the African Court, the Applicant submitted that his prison sentence, fine, civil damages and order to pay costs violated his right to freedom of expression protected by virtue of Article 9 of the African Charter on Human and Peoples’ Rights, Article 19 of the ICCPR, and Article 66(2)(c) of the Revised ECOWAS Treaty (protection of the rights of journalists).
The Applicant further sought a declaration that Burkina Faso’s laws on criminal defamation and insult or, alternatively, imposing custodial sentences for defamation, violate the right to freedom of expression. Hence, the Applicant sought an order for Burkina Faso to amend its laws accordingly and pay reparations to the Applicant.
The African Court unanimously 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. Although the sentences were found to be in accordance with the law and in pursuit of a legitimate purpose, the Court found that the sentences handed down were disproportionate to the aim pursued by the State’s domestic laws, namely the Information Code and the Burkina Faso Penal Code.
In assessing the proportionality of the Respondent State’s sanctions for defamation, the Court adopted the view that freedom of expression must be interfered with to a lesser degree in the context of a public debate relating to public figures. Consequently, the Court held that given that a higher degree of tolerance is expected of public figures, laws dealing with the reputation of public figures should not provide more severe sanctions than those relating to the reputation of an ordinary individual.
Further, taking into account the jurisprudence of the European Court of Human Rights, the African Court held that only in the exceptional circumstances of hate speech or incitement to violence would a sentence of imprisonment be justified. As such, civil proceedings should be preferred to criminal proceedings in defamation cases.
Hence, the Court ordered the Respondent State to amend its legislation by repealing the custodial sanctions for defamation and ensuring that all other non-custodial sanctions are necessary and proportionate in accordance with its international obligations. The Respondent State was ordered to report on its implementation of these amendments within two years.
Currently, press freedom is restricted not just in Burkina Faso, but across numerous African states as a result of harsh libel laws and the prevalence of criminal convictions for defamation. As highlighted by amici curiae in the case, custodial sentences and other excessive means of punishment for persons convicted of defamation have a chilling effect on public debate. This is particularly dangerous in states such as Burkina Faso, where criminal sanctions are imposed in circumstances where the defamed person is a public figure.
This was a landmark decision by the African Court, which considered the right to freedom of expression for the first time in its tenure. The Court has now set a significant precedent that journalists should not be imprisoned for defamation and that the civil courts are the most appropriate forum for seeking a remedy, with the exceptions of hate speech and incitement to violence. This jurisprudential milestone lends weight to the ongoing campaign to decriminalise defamation, publication of insults and false news, led by the African Commission’s Special Rapporteur on Freedom of Expression. This constitutes a defining moment, not just for Burkina Faso, but for press freedom across all State Parties bound by the decisions of the African Court.