Between 2006 and 2020, according to UNESCO Director-General’s Report on the Safety of Journalists and the Danger of Impunity, 174 journalists have been killed in Africa, with only 10,3% of cases reported as being judicially resolved.
Despite these grim statistics, a series of landmark decisions by the African Court on Human and Peoples’ Rights directly contributed to strengthening freedom of expression and to fight impunity for crimes committed against journalists on the African continent.
One of such landmark decisions occurred in 2015, when the African Court ordered the reopening of the investigation of Burkinabe investigative journalist Norbert Zongo, whose body was found badly burned in a car in 1998, along with the bodies of three colleagues. Zongo worked for I’Indépendant and was investigating the killing of the driver of a member of the President’s family at the time of his murder. A commission to investigate the crime was established by the President and was able to identified the suspects. Yet only one of the five was charged and the charges were subsequently dropped. In 2006, the case was closed for lack of evidence, until the African Court reordered to open it.
Since 2017, UNESCO and the African Court have been working together to promote the freedom of expression and safety of journalists in the African continent. Through these efforts, more than 1,800 judicial actors in Africa have been trained on these issues, and in 2018, the two organizations signed a Memorandum of Understanding to further strengthen their cooperation.
Dr Sègnonna Horace Adjolohoun is a human rights lawyer and constitutional law expert from Benin, with a passion for human rights justice. He currently works as Principal Legal Officer at the African Court on Human and Peoples’ Rights. Prior to joining the Court, he was Senior Legal Expert and Team Leader on a project with the African Commission on Human and Peoples’ Rights.
He shares his thoughts on three landmark decisions from the Court which ensured prosecution for crimes against journalists while underlining the fundamental role of the judiciary, and international and regional standards in fostering a freer and safer environment for media workers.
Why is the Norbert Zongo and Others v. Burkina Faso considered a landmark case of the African Court on Human and Peoples’ Rights?
SHA: The most clear-cut case in which the African Court has undoubtedly made a direct contribution to ending impunity for crimes against journalists is that of Norbert Zongo and Others v. Burkina Faso. In the case, the Court found that the delay in prosecuting the assassination in 1998 of investigative journalist Norbert Zongo and his companions constituted a violation of their rights to a fair trial, namely to have their cause heard within a reasonable time. In what is known to be one of its overall landmark judgment on the merits, the Court found that the Respondent State failed to uphold its duty to due diligence as no trial was conducted in more than 15 years in a case where Zongo was allegedly about to release a report on investigations involving officials including the brother to the then President of Burkina Faso. In its judgment on reparations, the Court also awarded about USD 1 million compensation to the beneficiaries for material and moral damages suffered as a consequence of the violations established. Although the Court declined to exercise jurisdiction over the alleged violation of the rights to life due to the crime occurring prior to the commencement of its operations, its rulings were unprecedent in the judicial protection of the rights of journalists in Africa.
Are there any other landmark cases that protected journalists’ freedom of expression?
SHA: Another such case that exemplifies the contribution of the Court to the protection of journalists in Africa is that of Lohé Issa Konaté v. Burkina Faso. The case is concerned more with freedom of expression rather than an attempt to the applicant’s life. In its ruling on the merits, the Court found that the one-year imprisonment meted against Konaté for publishing newspaper articles that were critical to the prosecutor constituted a breach of his freedom of expression as it was disproportionate. The Court held that authorities who discharge public functions should be prone to a higher level of criticism and prison sentences would therefore deter journalists from performing the very critical duty of exposing shortfalls in public governance. As a result of the violations found, the Court ordered the Respondent State to amend its laws accordingly, reinstate the Applicant’s banned newspapers, and pay compensation to him of more than USD 75,000 for both material and moral damages.
Finally, it is worth referring to the judgment rendered by the Court in the matter of Ingabire Victoire Umuhoza v. Rwanda regarding freedom of speech in a political setting. The matter relates to statements made by opposition leader Umuhoza which were found by domestic courts to constitute denial of the Tutsi genocide. The Court found that the remarks made by the Applicant did not constitute minimisation of the genocide against the Tutsi and therefore found her conviction to violate her freedom of expression. Although the case did not involve a journalist, it provides an interpretative position to understanding limitations to freedom of expression in instances such as genocide where states may use the restriction to silence critics, including media professionals. In the Umuhoza case, the African Court ordered the Respondent State to restore the Applicant’s rights and pay her compensation to her of about USD 64,000 for material and moral loss suffered by herself and her family members.
Could you tell us a little more about how international or regional standards on freedom of expression contributed to the cases you mentioned above?
SHA: In all the cases referred to, the Court mainly applied the African Charter on Human and Peoples’ Rights which is the leading human rights instruments in Africa when it comes to the legal protection of freedom of expression.
However, the Court also made direct and indirect reference to the International Covenant on Civil and Political Rights as well as to the Revised Treaty establishing the Economic Community of West African States. The Court made an interpretative use of these instruments as they provide greater details on the commitments made by the states concerned. Finally, the Court also significantly referred to decisions of the African Commission on Human and Peoples’ Rights notably for direct interpretation of the African Charter in forming its reasoning on freedom of expression and applicable limitations.
In your view, what was the most important impact of these decisions, both at the national level but also for other countries in Africa?
SHA: The rulings of the African Court in the abovementioned cases have most importantly impacted the domestic systems of the countries involved from normative, regulatory and judicial perspectives. For instance, following the Konaté ruling, Burkina Faso amended its criminal defamation laws. The rulings of the Court in the cases of Zongo and Konaté have also stepped up the reactivation of proceedings before domestic courts in a manner that give effects to the findings and orders of the Court.
On a related note, courts in Kenya and Lesotho have made a direct reference to the judgment of the African Court in the Konaté case in dealing with the issue of criminalisation of freedom of expression. This trend shows a potential for judicial dialogue.
In your opinion, what it is needed to strengthen the knowledge or capacity of the judiciary to investigate these crimes, and how could the jurisprudence of the African Court be better known and understood by judicial actors across the continent?
SHA: The first tool for capacity building among the judiciary would be training both initially at law faculties and national schools of judicial training, and continuously through regular refreshing courses that avail to municipal judicial officers with the updated legislative and jurisprudential database. The African Court Law Report, which was launched in 2017 is a relevant tool for effective dissemination of the Court’s caselaw at both domestic and sub-regional levels in Africa.