Academic journal article The George Washington International Law Review

Speaking Truth to Power: Criminal Defamation before the African Court on Human and Peoples' Rights

Academic journal article The George Washington International Law Review

Speaking Truth to Power: Criminal Defamation before the African Court on Human and Peoples' Rights

Article excerpt

Introduction

On August 1, 2012, Lohe Issa Konate, a journalist in the West African nation of Burkina Faso, published an article in the weekly newspaper, L'Ouragan (The Hurricane), criticizing a local prosecutor in a recent money counterfeiting case.1 One week later, Konate published a second article criticizing the role of the prosecutor in a different case,2 calling the prosecutor a "rogue officer."3 The Burkina Faso government did not take the criticisms lightly. Burkina Faso soon prosecuted and convicted Konate of criminal defamation, public insult, and contempt of court.4 He was sentenced to a prison term of twelve months.5 He was also required to pay fines that added up to over $12,000 USD,6 eighteen times the average annual income in Burkina Faso.7 The Burkina Faso court further ordered Konate's paper, L'Ouragan, be shut down for six months and the paper publish the key parts of the judgment against Konate for four months after the temporary shutdown.8 Three local newspapers were also ordered to publish the key parts of the judgment for three consecutive issues.9 Konate appealed the judgment to Burkina Faso's Ouagadougou Court of Appeals, but the judgment was affirmed.10 Konate then appealed his case to the African Court on Human and Peoples' Rights (African Court). The African Court overturned Burkina Faso's judgment and held that Burkina Faso's laws violated the freedom of expression guaranteed by the African Charter on Human and Peoples' Rights (African Charter).11

Criminal defamation laws in Africa, such as the ones under which Burkina Faso prosecuted Konate, are a holdover from colonial times when colonial rulers used them as protection against nationalist movements and uprisings.12 In addition to criminal defamation, many modern states in Africa maintain similar types of laws such as seditious libel laws and laws against insults toward public institutions or public officials.13 For the purposes of this Note, all such laws will be categorized as criminal defamation laws.

The African Court is uniquely positioned to protect journalists from repressive criminal defamation laws because it can issue binding judgments on member-states14 and it is more insulated from political pressure exerted by powerful leaders than state-level courts.15 In future cases challenging criminal defamation laws, the African Court should strengthen protections for citizens charged under such laws because a robust freedom of expression is critical to a fully functioning free society that respects all human rights.16 The African Court should mandate all defamation laws allow a defense of truth, ban all criminal punishments for defamation, and ban laws against defaming public institutions. Adopting these changes will promote the freedom of expression guaranteed in the African Charter and align the African Court with other international human rights courts.17 Without these further protections, it is likely that governments will continue using criminal defamation laws to intimidate journalists and to limit the publication of critical news stories.

Part I of this Note begins with a brief history of criminal defamation and a discussion of freedom of expression. Part I begins by describing the relevant human rights instruments in Africa and closes with a discussion of the African Court's decision in Konaté v. Burkina Faso. Part II argues that although the African Court improved protections for freedom of expression in Konaté, it should further strengthen defenses for those charged with violating defamation laws. Specifically, this Note argues that the African Court should mandate truth as a defense for defamation cases, ban criminal punishment for defamation, and ban laws against defaming public institutions.

I. Background

A.History of Criminal Defamation Laws

Criminal punishments for defamation date back to at least the Roman Empire, when individuals used the action of iniuria to protect their honor and reputation. …

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