Freedom of expression - article 9
Restrictions to the right to freedom of speech must not only be provided by law and written
precisely but must also serve a legitimate purpose (Lohé Issa Konaté v Burkina Faso,
application 004/2013, judgment, 5 December 2014 para 132). The restriction must also be
necessary in a democratic society and proportionate.
In Konaté the Court held that freedom of expression in a democratic society must be
subjected to a lesser degree of interference when it occurs within the context of public debate
relating to public figures. Public figures should therefore necessarily face high degrees of
criticism than private citizens else public debate would be stifled. A criminal sentence for
criticising public officials is therefore a violation of the right to freedom of expression (para
The Court noted in Konaté that criminal sanctions may only be imposed as restriction to
freedom of expression in exceptional circumstances such as incitement to commit
international crimes, public incitement of hatred or threat of violence against a person or
group on the basis of among others colour, race, religion or nationality (para 165). Other
sanctions such as fines should also be proportionate, failing which they will amount to a
violation of the right to freedom of expression (para 166).
In a separate opinion, Judges Thompson, Akufo, Ngoepe and Tambala indicated that even
though they agree with the majority in Konaté case they would rule that there should be no
criminal defamation and crimes such as hate speech and inciting of violence are dealt with in
other general criminal statutes (Konaté, Separate opinion: Thompson, Akuffo, Ngoepe,
Tambala, para 4).
The French version of the Zongo judgment indicates that the lack of diligent investigation of
the alleged extra-judicial execution of Mr Zongo and his companions intimidated other
journalists in violation of article 9 of the Charter read together with article 66(2)(c) of the
Revised ECOWAS Treaty (Ayants Droit de Feus Norbert Zongo, Abdoulaye Nikiema, Dit
Ablasse, Ernest Zongo et Blaise Iboudo et le Mouvement Burkinabé des Droits de l’Homme
et des Peuples v Burkina Faso, para 186-187). The English version of the judgment held that
the applicants did not show any proof that the media had been unable to exercise their
freedom of expression (Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias
Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights
movement v Burkina Faso, application 013/2011, judgment, 28 March 2014, paras 186-187).
However, in the order the majority of the Court finds a violation of article 9(2) of the Charter
read with article 66(2)(c) of the Revised ECOWAS Treaty.