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Freedom of expression article 9

Commentary

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Freedom of expression article 9

Commentary

Commentary type: Substance

Substance: Freedom of expression - article 9

Commentary: 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 criticizing public officials is therefore a violation of the right to freedom of expression (para 155).

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.

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004/2013 Lohé Issa Konaté v Burkina Faso - Judgment

132. The Court is of the view that for a restriction to be acceptable, it does not suffice for it to be provided by law and be written precisely; it must serve a legitimate purpose.

Contentious cases

004/2013 Lohé Issa Konaté v Burkina Faso - Judgment

155. In assessing the need for restrictions on freedom of expression by the Respondent State to protect the honour and reputation of others, this Court also deems it necessary to consider the function of the person whose rights are to be protected; in other words, the Court considers that its assessment of the need for the limitation must necessarily vary depending on whether the person is a public figure or not. The Court is of the view that 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. Consequently, as stated by the Commission, "people who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether". 27

Contentious cases

004/2013 Lohé Issa Konaté v Burkina Faso - Judgment

156. The Court considers that there is no doubt that a prosecutor is a "public figure"; as such, he is more exposed than an ordinary individual and is subject to many and more severe criticisms. Given that a higher degree of tolerance is expected of him/her, the laws of States 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.

Contentious cases

004/2013 Lohé Issa Konaté v Burkina Faso - Judgment

166. The Court further notes that other criminal sanctions, be they (fines), civil or administrative, are subject to the criteria of necessity and proportionality; which therefore implies that if such sanctions are disproportionate, or excessive, they are incompatible with the Charter and other relevant human rights instruments.

Contentious cases

004/2013 Lohe Issa Konate v Burkina Faso -(Judgement, Separate opinion, Joint dissenting opinion, Order of provisional measures )

4. Having found that the application is admissible and that the Court has jurisdiction, we would zoom onto the crisp question in the matter: are the Burkinabe laws in terms of which the Applicant was convicted of defamation, namely, Articles 109 and 110 of the Information Code, and Article 178 of the Penal Code, in conflict with Article 9 of the African Charter on Human and Peoples' Rights, and other instruments relied upon and cited by the Applicant? ln · our view, the answer is in the affirmative. As presently framed, the above legislative measure are, for the reasons set out in the majority judgment, an unjustified restriction to the right of freedom of expression; that is, criminalization of defamation is not justified. If such criminalization can be justified under certain circumstances, such as prohibiting for example hate speech or incitement, the above legislative measures, as they currently read, are too broad and problematic. It must be mentioned though, that the possible excerptions referred to are more theoretical than real. This is because once a so-called criminal defamation amounts to say hate speech or incitement, it is no longer criminal defamation; it mutates into one of the already existing and well known specific crimes such as \( -:s:i(">-" ~~__) sedition or high treason and there would be no talk of criminal defamation. The State's duty to enforce the obligation on an individual under Article 27(2) of the Charter to exercise rights "with due regard to the rights of others, collective security, morality and common interest" cannot justify the criminilization of expression of speech by way of criminal defamation laws of any kind, whether punishable by incarceration or not. Access to civil action, civil sanction, together with specifically defined crimes for safeguarding national security, public peace and the common interest, should be sufficient. For this Court to hold otherwise would not only be a step backward in the evolution of human rights in Africa, but also out of consonance with the letter and spirit of the Charter, which it is established to uphold.

Contentious cases

013/2011 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso - (Judgment)

186. In the circumstances, the Court is of the opinion that even though the Respondent State's failure to identify and apprehend Norbert Zongo's assassins could potentially cause fear and anxiety in media circles, in the instant case, however, the Applicants have not shown proof that the Burkinabe media had not been able to exercise freedom of expression. 187. In the circumstances, the Respondent State cannot be accused of directly violating the freedom of expression of journalists as guaranteed under article 9 of the Charter, read together with article 66(2)(c) of the Revised ECOWAS Treaty, merely because it had not 50 acted with diligence and efficiency in identifying and bringing to trial the assassins of Norbert Zongo.

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