The African Court on Human and Peoples’ Rights has handed down a powerful first judgment on press freedom by ruling that criminal defamation laws cannot include custodial sentences or sanctions that are disproportionate, such as excessive fines.
In 2012, Lohé Issa Konaté, the editor of a weekly newspaper in Burkina Faso, was found guilty of criminal defamation and sentenced to 12 months in prison after he published two articles accusing a public prosecutor of abusing his power. Konaté’s paper was shut down for six months and he was ordered to pay an exorbitant fine, plus compensation and costs.
Konaté argued that he was wrongfully punished for legitimate investigative journalism and his rights to freedom of expression were violated. A coalition of 18 media and human rights organisations added that criminal defamation laws undermine the democratic rights of the media and citizens to hold their governments to account.
The court found that, although the Burkinabé law served the legitimate objective to protect the honour and reputation of public officials, the penalty of imprisonment was a disproportionate interference in the exercise of freedom of expression by Konaté and journalists in general. The court ordered Burkina Faso to change its criminal defamation laws and pay compensation to Konaté.
The judgment is significant because it is a homegrown, 100% African decision, reached through African institutions and by African judges sitting in Arusha, Tanzania. The effect of the judgment will be felt across the continent, where many journalists still face prison for defamation. In 2013, at least 200 journalists were imprisoned around the world under criminal defamation laws.
By clearing one of the major impediments to effective journalism the threat of prison for journalists who expose corruption or criticise a government the judgment paves the way for a freer and stronger media. Bloggers, political activists and human rights defenders across the continent who have similarly faced prison for their reporting and activism will welcome the judgment.
The ruling also shows how –although access remains rare – there are a growing number of legal recourses to fight back against state institutions that act with impunity by silencing critical voices across Africa.
The judgment, which is binding on African Union member states, gives impetus to the continent-wide campaign to decriminalise defamation. It also paves the way for the decriminalisation of ubiquitous laws prohibiting “the publication of matter with intent to bring the president into hatred, ridicule or contempt” and “the publication of false news with intent to cause fear and alarm to the public”.
The Decriminalisation of Expression (DOX) Campaign was launched in 2012 and aims to rid Africa of criminal defamation, insult, false news and sedition laws. The campaign is spearheaded by the Special Rapporteur on Freedom of Opinion and Expression and Access to Information in Africa, advocate Pansy Tlakula, along with organisations spanning the five regions of Africa: East, West, South, Central and North. The Centre for Human Rights, based at the University of Pretoria, South Africa, acts as secretariat to the campaign.
Uncork the bubbly
DOX will be required to mount robust campaigns throughout Africa, country by country, to have the law of criminal defamation eradicated. The campaign has its work cut out for it simply to ensure that the judgment is executed in Burkina Faso.
For now, however, it’s time to uncork the champagne: imprisonment for defamation is now illegal on our continent. With this ruling, Africa joins an increasing number of countries and international authorities that affirm that criminal defamation laws should not be used as a tool to restrict freedom of expression, that criminal sanctions, if applied, should only be used under extreme circumstances, that imprisonment should never be an option, and that other penalties should be proportionate.
African governments should heed the ruling and amend their laws, drop pending criminal defamation charges and free those jailed under such laws. This would be the best news not just for journalists and human rights defenders, but also for citizens who have a right to know what is happening in their countries, and a right to express what they think about it.
Simon Delaney is a media lawyer and advisor to the Decriminalisation of Expression Campaign.