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Konaté v. Burkina Faso

Published online by Cambridge University Press:  20 January 2017

Dinah Shelton
Dinah Shelton*
Affiliation:
Of the Board of Editors
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Extract

In only its second merits judgment, the African Court on Human and Peoples’ Rights (Court) placed strict limits on penalizing expression, especially that of journalists, in states party to the African Charter on Human and Peoples Rights (African Charter). In doing so, the African Court narrowly interpreted the often-criticized “clawback clauses” in the African Charter and relied instead on the tests of necessity, proportionality, and legitimate aim applied by other human rights tribunals to determine the legality of restrictions on rights.

Keywords

Human rightsfreedom of expressioncriminal defamationregional courtsamici curiaetreaty interpretation
Type
International Decisions
Information
American Journal of International Law , Volume 109 , Issue 3 , July 2015 , pp. 630 - 636
Copyright
Copyright © American Society of International Law 2015

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References

1 African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 UNTS 217, 21 Ilm 58(1982) (entered into force Oct. 21, 2001) [hereinafter African Charter]. The Court was established by the Protocol to the African Charteron Human and Peoples’ Rights on the Establishment of the African Courton Human and Peoples’ Rights, June 9, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III) [hereinafter Protocol of Establishment]. For these and other basic documents cited herein, information about the Court generally, and the cited cases, see the Court’s website, http://www.african-court.org.

2 Konaté v. Burkina Faso, App. No. 004/2013 (Afr. Ct. Hum. & Peoples’ Rts. Dec. 5, 2014) [hereinafter Judgment].

3 The Statute of the African Court takes an intermediary position between those of the Inter-American Court of Human Rights, where individuals have no direct access but must first proceed through the Inter-American Com mission on Human Rights, and the European Court of Human Rights, which confers automatic standing on per sons claiming to be victims of rights violations by a state party to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the African system, individuals may proceed directly to the African Court if the accused state has filed an optional declaration with the Court allowing such cases to be initiated. See Protocol of Establishment, supra note 1, Arts. 34(6), 5(3).

4 The prosecutor complained of the other journalist as well, but his matter did not come before the African Court.

5 Protocol of Establishment, supra note 1, Art. 3(1).

6 International Covenant on Civil and Political Rights, Art. 19, Dec. 16, 1966, S. Exec. Doc. No. 95-E (1978), 999 UNTS 171; Revised Treaty of the Economic Community of West African States, Art. 66(2)(c), July 24, 1993, 2373 UNTS 233.

7 The nongovernmental organizations participating as amici curiae were the Centre for Human Rights, the Comité pour la protection des journalistes, the Media Institute of Southern Africa, the Pan African Human Rights Defenders Network, the Union panafricaine des avocats, Pen International and national Pen branches (Pen Malawi, Pen Algeria, Pen Nigeria, Pen Sierra Leone, and Pen South Africa), the Southern African Litigation Centre, and the World Association of Newspapers and News Publishers.

8 Ernest v. United Republic of Tanzania, App. No. 001/2012, Order, paras. 6–7 (Afr. Ct. Hum. & Peoples’ Rts. Sept. 27, 2013).

9 Rules of Court, Rule 40(3) (June 2, 2010). This requirement derives from Article 56(3) of the African Charter, supra note 1, concerning admissibility of matters at the African Commission on Human and Peoples’ Rights. It excludes submissions written in “disparaging or insulting” language. States often find that accusations of human rights violations in themselves are disparaging and insulting, and the commission has sometimes agreed. See, e.g., Article 19 v. Zimbabwe, Comm. No. 305/05, Twenty-ninth Annual Activity Report of the African Commission on Human and Peoples’ Rights 42 (2010–11) [hereinafter Activity Rep.], 2010 Afr. Hum. Rts. L. Rep. [AHRLR] 126; Iiesanmi v. Nigeria, Comm. No. 268/2003, 18th Activity Rep. 22 (2004–05), 2005 Ahrlr 48. Decisions of the African commission cited herein are available at http://www.achpr.org.

10 Zimbabwe Lawyers for Human Rights v. Zimbabwe, Comm. No. 293/2004, 24th Activity Rep., Annex II, at 108, para. 51, 2008 AHRLR 120, quoted in Judgment, para. 70.

11 Id., para. 52.

12 Citing Human Rights Comm., Keun-Tae Kim v. Republic of Korea, Comm. No. 574/1994, UN Doc. Ccpr/C/64/D/574/1994, para. 12.5 (1999), in 6 Selected Decisions of the Human Rights Committee Under the Optional Protocol 110, UN Doc. Ccpr/C/Op/6, UN Sales No. E.05.XIV.1 (2005).

13 Article 27(2) of the African Charter, supra note 1, provides: “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”

14 The Court did acknowledge the possibility of imprisonment for speech that defends international criminal conduct, incites hatred, discrimination, or violence; or threatens a person or group on the basis of race, color, religion, or national origin. Judgment, para. 165.

15 The African commission earlier adopted the same approach in Malawi African Ass’n v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97–196/97, 210/98, 13th Activity Rep. 138, para. 102 (1999–2000), 2000 AHRLR 149.

16 Media Rights Agenda v. Nigeria, Comm. Nos. 105/93, 128/94, 130/94, 152/96, 12th Activity Rep. 52, paras. 66–70 (1998–99), 2000 AHRLR 200.

17 See, e.g., Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations, Inter-Am. Ct. H.R. (ser. C) No. 245, para. 216 n.285 (June 27, 2012) (citing Centre for Minority Rights Dev. (Kenya) ex rel. Endorois Welfare Council v. Kenya, Comm. No. 276/2003 (Afr. Comm’n Hum. & Peoples’ Rts. Feb. 4, 2010)).

18 Andenas, Mads, Case Report: Ahmadou Sadio Diallo, 107 AJIL 178, 181–82 (2013)Google Scholar.

19 See, e.g., Palamara Iribarne v. Chile, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser.C) No. 135 (Nov. 22, 2005); Canese v. Paraguay, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 111 (Aug. 31, 2004); Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R . (ser. C) No. 107 (July 2, 2004).