Lohé Issa Konaté, Burkina Faso

Paving the way for press freedom in Burkina Faso and beyond

In December 2014, an MLDI-led team won a landmark victory at the African Court on Human and Peoples’ Rights. The case was the first freedom of expression case the Court had heard and paved the way for better outcomes in criminal defamation cases around the world.

Criminal defamation laws are a widespread problem across the globe – often used to silence members of the press, bloggers, political activists and human rights defenders. The African Union Special Rapporteur on Freedom of Expression has run a campaign since 2013 encouraging countries throughout the continent to abolish laws that criminalise free speech.

Lohé Issa Konaté is the founder, manager and editor-in-chief of the weekly newspaper L’Ouragan (‘the Hurricane’). In 2012 was arrested and jailed for 12 months for publishing two articles that linked a prosecutor to corruption and abuse of power. The newspaper was shut down and, in addition to the prison sentence, Mr Konaté was ordered to pay a sum in damages, fines and costs equalling 18 times the local annual salary.

Mr Konaté was represented by MLDI, along with John Jones QC and Steven Finizio of WilmerHale, both of whom appeared pro bono. The team argued that the Court should rule not only that Konaté’s rights were violated but, that as a matter of course no journalist should ever be imprisoned for defamation. In Konaté v. Burkina Faso, the Court in Arusha, Tanzania agreed with MLDI’s submissions, ruling that imprisonment for defamation violates the right to freedom of expression. In addition the court made it clear that criminal sanctions for libel should only be imposed on journalists in restricted and extreme circumstances.

The Court agreed with the arguments that Burkina Faso was in violation of Article 9 of the African Charter on Human and Peoples’ Rights, Article 19 of the International Covenant on Civil and Political Rights, and article 66(2)(c) of the revised ECOWAS Treaty. The Court ordered Burkina Faso to change its criminal defamation laws. The ruling set an authoritative precedent for all African countries where imprisonment for libel is still used as a tool to silence members of the press, bloggers, political activists and human rights defenders. The threat of prison for journalists who expose corruption or criticise the government is one of the major impediments to effective journalism. By clearing this barrier, the Court paved the way for a stronger media across the continent.

Mr Konaté expressed his delight with the decision, saying:

“The African Court has recognised the injustice I have suffered. Not only am I happy from a personal point of view, but also because this decision will have positive implications for all my fellow journalists who face great risks, including, as I did, imprisonment, for reporting on issues that matter. This is a victory for the entire profession.”

The judgment was also welcomed by journalist organisations around the world. Jim Boumelha, the President of the International Federation of Journalists said:

“We welcome this magnificent victory for press freedom. The African Court has delivered an extraordinary first ruling on press freedom which will have a knock-on effect on the legislation in all African countries forcing them to change their law on defamation. African governments should now amend their laws, drop pending criminal defamation charges, and free those jailed under such laws.”

Setting legal precedent

The judgment has since been used as a stepping stone towards defamation law reform across the continent, and is referenced in criminal defamation cases across the world.

For our work on this case, in March 2015, MLDI was awarded the inaugural Global Freedom of Expression Prize by New York’s Columbia University, which celebrates judicial decision and legal representation around the world that strengthen freedom of expression. Columbia’s judging panel said that MLDI’s work was “of immense quality, well researched, well argued, with a particularly strong commitment and understanding of global jurisprudence and standards, and great influence and impact for freedom of expression in the region.”

In June 2016, Lohé Issa Konaté was awarded $70,000 in compensation for the harm suffered as a result of his year-long detention. With the compensation ruling, the Court recognised the irreparable harm caused by imprisonment and the shutdown of L’Ouragan: Mr Konaté lost his entire income and sole means of support for his family, as well as the capital invested in his business and all writing and publishing equipment. The damages encompassed these losses, as well as the considerable distress suffered as a result of imprisonment in an unsanitary and overcrowded prison. The compensation supports the continuance of L’Ouragan, an important source of independent journalism in Burkina Faso.

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