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Court orders Burkina Faso to amend its defamation Laws

Lohe lssa Konate v. Burkina Faso

African Court on Human and Peoples’ Rights

Application No. 00412013

AKUFFO S.A.B.,President, NGOEPE B.M. Vice President, Ramadhani A.S.L., Thompson E.N., Niyungeko G., Tambala D.,ORE S., GUISSE E.H., KIOKO B., ABA K. JJ

December 5, 2014

Reported by: Linda Awuor & Enock Amolo

Download the Decision

International Law-law of Treaty- African Charter on Human and Peoples’ Rights (treaty)-fundamental rights and freedom-the right to freedom of speech- -whether conviction by imprisonment violated the freedom of expression-African Charter on Human and Peoples’ Rights (Charter) Article 9; and article 19 of the International Covenant on Civil and Political Rights.

International Law-law of Treaty- International Covenant on Civil and Political Rights (Covenant)-fundamental rights and freedom-right to expression-whether existence of non-custodial sentence contravened the rights to freedom of expression- article 19 (2) of the International Covenant on Civil and Political Rights.

International Law-Law of treaty-Economic Community of West African States (ECOWAS)-fundamental rights and freedom-right to expression-whether conviction the Applicant to pay an excessive fine, damages, interests and costs violated his rights to expression- article 66(2)Economic Community of West African States.

Brief Facts:

On August 1, 2012 and August 8, 2012 respectively, the Applicant published an article in a weekly newspaper (L’Ouragan Newspapers) on police, prosecutor and bank official titled “Counterfeiting and laundering of fake bank notes – the Prosecutor of Faso, 3 Police Officers and a Bank Official- Masterminds of Banditry”). The Prosecutor filed a complaint for defamation, public insult and contempt of Court,   against the Applicant and Mr. Ouedraogo. The Applicant was charged of defamation before the Ouagadougou High Court.

On October 29, 2012 the Ouagadougou High Court sentenced the Applicant to a 12 month term of imprisonment and ordered him to pay a fine of 1.5 Million CFA Francs (an equivalent of 3000USD). The same court ordered the Applicant to pay the Complainant damages of 4.5 Million CFA Francs (an equivalent of 9000USD) as damages and interest, and court costs of 250,000 CFA Francs (an equivalent of 500USD).

On top of the sentence, the Court ordered that L’Ouragan Weekly be suspended for a period of 6 months and for the operative provisions of the judgment      to   be   published   in   the Newspaper upon its resumption of its activity and for a period of 4 months, at the cost of the Applicant and Mr. Roland Ouedraogo.

On May 10, 2013, the Ouagadougou Court of Appeal confirmed the judgment of the Ouagadougou High Court. The Applicant did not appeal to cour de cassation instead he decided to apply to the African Court on Human and Peoples’ Rights.

Issues:

(i) Whether provisions of Articles 109, 110 and 111 of Information Code, violated the right to freedom of expression according article 9 of the Charter

(ii) Whether the existence of non-custodial sanctions on defamation laws violated article 19 (2) of the Covenant.

(iii) Whether conviction of the Applicant and sentencing him to a term of imprisonment was inconsistent with article 19 of the Covenant and article 66 (2)(c) of the revised ECOWAS

(iv) Whether convicting the Applicant to pay an excessive fine, damages, interests and costs violated article 9 of the Charter, article 19 of the Covenant and article 66 (2)(c) of the revised ECOWAS

(v) Whether the Respondent State violated article 9 of the Charter, article 19 of the Covenant and article 66(2)(c) of the revised ECOWAS Treaty by convicting the Applicant to the suspension of his publication for a period of six (6) months for defamation

 

Relevant Provisions of the Law

African Charter on Human and Peoples’ Rights

Article 9 -Right to information

For the purposes of this statute, right to express include the right to dissemination of opinions within the laws and regulations

International Covenant on Civil and Political Rights

Article 19-Right to freedom of expression

For the purposes of this statute, freedom of expression includes the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.

Treaty of the Economic Community of West African States (ECOWAS) of 24 July 1993

Article 66 (2) (c)-Right of Journalists

This provision obligates State Parties to ensure that journalists’ rights are protected.

Information Code of December 30, 1993

Article 109-Defamation of public officers

Any   allegation or imputation of a    fact which undermines the honour or image of a person or profession amounts to defamation. Such allegation or imputation is punishable even if it is done in conditioned circumstances.

Article110-Punishment for defamation of officials

Defamation against Court’s Tribunals, Armed Forces, State Officials shall be punished with a term of imprisonment of from 15 days to 3 months and a fine of from 10,000 – 500,000 Francs or one of either penalties

Article 111-Defamation of public officers

For the purposes of this Act, punitive measures shall be exercised to people charged of defamation against Members of Parliament or Government, one or more members of the Supreme Judicial Council.

Penal Code of 13 November 1996 of Burkina Faso

Article 178-Sentence for defamation

Any person found guilty of defamation against Legal Officers, juries or Assessors to tarnish their image and honour, punishable with a term of imprisonment from 6 months to one year and a fine of from100 000 to 500 000 CFA francs or one of the penalties

Held by majority of the Court -with Augustine S. L. Ramadhani, Sophia A. B. Akuffo, Bernard M. Ngoepe, Gerard Niyungeko, Sylvain Ore, El Hadji Guisse, Ben Kioko Aba Kimelabalou

1. Articles 109, 110 and 111 of the Information Code of Burkina Faso protected the honour and reputation of the person or a profession; that of Article 178 of the Criminal Code of Burkina Faso was 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 the duty.

2. The Acts were a perfect legitimate objective and therefore the limitation imposed on the right to freedom of expression by the Burkinabe legislation was consistent with international standards in that area. Such restrictions on freedom of expression had to be assessed within the context of a democratic society and such an assessment had to be ascertained whether that restriction was a proportionate measure to achieve the set objective, namely, the protection of the rights of others.

3. Article 19 (3) of the Covenant guaranteed the enjoyment of freedom which comprised of special duties and responsibilities. It was therefore subject to certain restrictions which ought to clearly been laid down by the law and which were necessary in protecting the rights and reputation of others.

4. Implementation of such restrictions, the function of the person to whom such right was to be exercised ought to be considered. The assessment of the need for the limitation ought to be varied depending on whether the person was a public figure or not. Freedom of expression in a democratic society must be the subject of a lesser degree of interference when it occurs in the context of public debate relating to public figures.

5. The prosecutor was no doubt a public figure and he was more exposed than an ordinary individual and was subject to many and more severe criticisms. Given that a higher degree of tolerance was expected of him, the laws of State Parties to the Charter and the Covenant with respect to dishonouring or tarnishing the reputation of public figures, such as the members of the judiciary, should therefore not provide more severe sanctions than those relating to offenses against the honor or reputation of an ordinary individual.

6. The Court noted that, defamation was an offense punishable by imprisonment in the legislation of the Respondent State, and that the latter failed to show how a penalty of imprisonment was a necessary limitation to freedom of expression in order to protect the rights and reputation of members of the judiciary.

7. Sections 109 and 110 of the Information Code and section 178 of the Penal Code of Burkina Faso on the basis of which the Applicant was sentenced to a custodial sentence, was contrary to the requirements of article 9 of the Charter and article 19 of the Covenant. Article 66 (2) (c) of the Revised ECOWAS Treaty protected the rights of journalists on the account of the state. Court contended that the Respondent State did not do much. The custodial sentence under the legislations constituted a disproportionate interference in the exercise of the freedom of expression by the Applicant as a journalist.

8. Court held that violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences unless it is serious and very exceptional circumstances like incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people, because of specific criteria such as race, colour, religion or nationality.

9. Sentencing of the Applicant by the Ouagadougou High Court to a 12 months term of imprisonment for defamation, contempt and insult, and the confirmation of that sentence by the Ouagadougou Court of Appeal was considered inconsistent with the Charter, the Covenant and the Revised ECOWAS Treaty. Consequently, the enforcement of such laws by the Burkinabe Courts amounted to a violation of the relevant human rights provisions in that regard. At any rate, the Respondent State had not shown that such convictions were necessary and proportionate to protect the rights and reputation of the public officers.

10. The Respondent State had not demonstrated that the sentence of the Applicant as well as the suspension of the Weekly L’Ouragan for a period of six months was necessary to protect the rights and reputation of the Prosecutor of Burkina Faso and therefore was a violation of both the Charter and Covenant.

11. Sentences pronounced by the High Court and confirmed by the Ouagadougou Court of Appeal were disproportionate to the aim pursued by the relevant provisions of the Information Code and the Burkinabe Penal Code. Since the conduct of the Burkinabe courts fell squarely on the Respondent State, it failed in its obligation to comply with the provisions of article 9 of the Charter, article19 of the Covenant and article 66 (2) (c) of the revised ECOWAS Treaty with regard to the Applicant.

12. The Court added that, as regarded more specifically the payment of a fine, damages, interests and costs, the Respondent failed to show that the amount fixed by the High Court of Ouagadougou and confirmed by the Court of Appeal did not excessively exceed the income of the Applicant. The amounts of the fine, damages, interests and costs seemed 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 therefore a violation of the provisions.

Application allowed

Respondent State to amend its legislation on defamation by repealing custodial sentences

The Respondent State to report to the Court within a reasonable time, on the measures taken to implement the orders not later than two years, from the date of the Judgment

Each party to bare its own costs

Dissenting in part -Thompson, Akuffo, Ngoepe and Tambala

1. On whether the Burkina Faso defamation laws were in conflict with Article 9 of the African Charter on Human and Peoples’ Rights, and other instruments relied upon and cited by the Applicant, the court contended that affirmative answer is prudent. As it was framed, the legislative measure was, for the reasons set out in the majority judgment, an unjustified restriction to the right of freedom of expression; that is, criminalization of defamation was not justified. If such criminalization could be justified under certain circumstances, such as prohibiting hate speech or incitement, such a legislative measure as they read were too broad and problematic.

2. The possible excerptions referred to were more theoretical than real. This could have been so if a so-called criminal defamation amounted to say hate speech or incitement, it was no longer criminal defamation; it mutated into one of the already existing and well known specific crimes such as sedition or high treason and there would be talk of criminal defamation.

3. Since the conviction was invalid ab initio, it wasimmaterial whether the punishments imposed were excessive or lenient. There should have been no punishment based on criminal defamation at all; the aggrieved person should have resorted to other avenues than to criminal recourse.

Articles 109 and 110 of the Burkinabe Information Code, as well as Article178 of the Burkinabe Penal Code, are in conflict with Article 9 of the African Charter on Human and Peoples’ Rights and therefore invalid

The conviction of Lohe Issa Konate under the above Burkina Faso laws and all the sanctions imposed on the Applicant result of the conviction, were null and void.

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