21 March 214
Eighteen Non-Government Organisations appeared at the African Court on Human and Peoples’ Rights, in Arusha, Tanzania on 20 March, as amici curiae (friends of the court) pertaining to the matter of Lohé Issa Konaté, editor of Burkina Faso weekly newspaper L’Ouragan, who was convicted of defamation, public insult and insulting a magistrate for articles alleging corruption of the State Prosecutor.
In October 2012, Mr Konaté was sentenced to one year’s imprisonment; payment of a sum in fines, damages and costs amounting to 18 times the average annual salary in Burkina Faso; and his newspaper was closed for six months as a result of the guilty verdict. The conviction and sentence were upheld on appeal and his paper remains closed.
Criminal defamation, insult and criminal libel laws are a pernicious set of laws widely used by those in positions of power across the African continent to silence critics. Burkina Faso’s criminal defamation laws, like those in many African countries, are a relic of colonialism and incompatible with an independent, democratic Africa because they violate a core civil and political right and restrict and deter debate on matters of public interest. Criminal defamation laws are routinely used by governments to prevent critical appraisal of their performance and to deprive the public from information about their misdemeanours.
NGOs who have supported the amicus curiae are of the view that all countries deserve a strong, free and independent press to act as a watchdog over public institutions. While criminal defamation and insult laws exist, journalists will continue to practice self-censorship and will be unable to hold power to account.
‘We note that Ghana decriminalised defamation more than 10 years ago and recently, Niger decriminalised defamation. We are delighted to hear that Liberia is currently addressing their laws which criminalise speech’, said Frans Viljoen, Director of the Centre for Human Rights, University of Pretoria.
‘With the 2010 resolution by the African Commission on Human and Peoples’ Rights urging states to repeal criminal defamation and the 2013 resolution by the Pan African Parliament urging the same, we believe there is a sea change on the continent by those in power who recognise that Africa’s social and economic progress will flourish in a climate where the press is free and independent of state control,’ said Viljoen.
The NGOs who have submitted the amicus curiae are dedicated to advancing human rights, protecting human rights defenders, and safeguarding the freedoms of expression and the press and believe that Mr Konaté’s conviction violates his right to freedom of expression as protected by Article 9 of the African Charter and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
Burkina Faso is a State Party to both treaties and therefore bound to uphold and protect the rights enshrined therein. The NGOs, which include those with state, regional and global mandates, are urging the African Court to declare that his criminal conviction, prison sentence and the order to pay a substantial fine, damages and costs violate his right to freedom of expression, as protected by the African Charter and the ICCPR.
The NGOs urge the court to find in favour of Mr Konaté and freedom of expression. A decision in favour of Mr Konaté will set a precedent on the continent that will reach far beyond the borders of Burkina Faso. It will encourage law makers to ensure the passage of the draft bill to repeal criminal defamation is expedited through parliament and it will encourage all states to guarantee press freedom and freedom of expression in their countries.
The NGOs are the Centre for Human Rights; Committee to Protect Journalists; Media Institute of Southern Africa; Pan Africa Human Rights Defenders Network; Pan African Lawyers Union; PEN International,Malawi PEN, PEN Algeria, PEN Nigeria Centre, PEN Sierra Leone, and South Africa PEN Centre; Southern Africa Litigation Centre; and World Association of Newspapers and News Publishers.