[As I mentioned in yesterday’s post I am delighted to introduce Tétévi Davi as Junior Editor at The ACtHPR Monitor. Tétévi’s first piece for the Monitor is below, analyzing the African Court’s recent reparations judgement in the Konaté case, enjoy! OW]
1. Introduction
On 3 June 2016 the African Court delivered its long-awaited reparations Judgement in the case of Lohé Issa Konaté v. Burkina Faso. Many readers may already be familiar with the matter, which follows on from the 2014 Judgement in which the African Court held that Burkina Faso was responsible for violating freedom of expression laws found in a number of national and international treaties. This decision allows us to glean a deeper insight into the Court’s provision of reparations in cases of rights violations and adds an important layer to the Court’s freedom of expression jurisprudence.
2. Facts
The Applicant in this case was Lohé Konaté, a national of Burkina Faso who was editor and owner of a weekly newspaper “l’Ouragan” (The Hurricane). Konaté originally brought his case before the African Court after he had been convicted for publishing articles criticizing the State Prosecutor who he alleged had been involved in the counterfeiting and trafficking of fake bank notes. Soon after the publication of his articles, Konaté was arrested and charged with defamation, public insult and use of abusive language against a judicial officer. He was convicted of these charges, sentenced to 12 months in prison and was ordered to pay a large fine to the authorities, as well as damages and costs to the State Prosecutor. As part of his punishment, publication of his newspaper was also suspended for 6 months.
Following the dismissal of his Appeal in the national courts, Konaté elected to bring his claim before the African Court on Human and People’s Rights. He alleged that his prison sentence, in addition to the fines and damages he was required to pay, were in violation of his rights, specifically article 9 of the African Charter concerning the right to express and disseminate opinions within the law, article 19 of the ICCPR dealing with the right to freedom of expression, and article 66(2)(c) of the Revised ECOWAS Treaty concerning the obligation to ensure respect for the rights of journalists.
The African Court declined to hold a public hearing in the case however, after deliberating on the parties’ submissions it ruled unanimously in Konaté’s favour, declaring that Burkina Faso had indeed violated the aforementioned provisions in its sentencing and fining of the Applicant on defamation charges.
Following this ruling, Konaté made an application for reparations pursuant to Rule 27(1) of the Protocol to the African Charter. His application was composed of 4 key requests:
- Expunge details of his conviction from his criminal record.
- Set aside the Order to pay a fine, damages and costs.
- Award him pecuniary damages for material loss based on the closure of his press, medical expenses and his family’s travel costs to visit him in prison.
- Award him non-pecuniary damages for moral prejudice suffered by himself and his family.
3. Reparations Judgement
(i) Expunge Criminal Convictions
In relation to the Applicant’s first request to erase all criminal convictions from his record, the African Court recognised that subsequent to its earlier Judgment, Burkina Faso had already undertaken to do this. It therefore simply endorsed this agreement between the parties.
(ii) Setting Aside Fines Imposed in Burkina Faso
In regards to Konaté’s request to set aside the Order relating to payment of fines, damages and costs, the African Court first re-asserted that that it was not an appellate court to which decisions from national jurisdictions could be referred and thus declined to set aside these payments. Nevertheless, the African Court referred to its earlier ruling in which it mandated a change in Burkina Faso’s defamation laws to comply with the principles of necessity and proportionality and therefore urged Burkina Faso to reduce the amount of money Konaté was required to pay in respect of these various charges.
(iii) Compensation for Material and Moral Damage
In relation to Konaté’s request for compensation for material damage based on the closure of his printing press for 6 months, the African Court held that he had adduced no evidence to prove that he could sell the volume of papers he alleged to be able to as the basis for his claim. As result, it greatly scaled down his award from the 108,000,000 CFA Francs (approx. $185,000) he had originally claimed, to 20,000,000 CFA Francs (approx. $35,000). The African Court also, as a matter of equity, decided to award Konaté compensation for the fact that once his publication was re-opened, he no longer had sufficient resources to publish as regularly as he could before. The African Court declined to reward compensation for the Applicant’s loss of physical belongings and reimbursement of expenses for new equipment as it asserted that Konaté had produced no evidence in support of this loss and had furthermore not proved a necessary lien of causality between State action and his loss.
The Court further chose to award Konaté compensation for financial loss suffered by his family as a result of the transport costs incurred visiting him in prison and also for medical expenses incurred during his incarceration. Finally, the African Court made an award of compensation in respect of the moral prejudice that he and his family suffered as a result of his trial, conviction and imprisonment in breach of his fundamental rights. However, after finding the Applicant’s claim in this regard excessive, the African Court greatly revised down his award from 17,500,000 CFA Francs to 10,000,000 CFA Francs.
4. Analysis and Conclusion
As an initial observation it is interesting that the African Court elected not to hold a public hearing prior to issuing its decision in this case which runs counter to its approach in two previous reparations rulings, Zongo v Burkina Faso and Mtikalia v Tanzania. Whilst the African Court provided no clear reason in either the earlier Judgement nor reparations ruling for not holding a hearing, we may posit that this was attributable to the very different nature of the Respondent State objections in the present case as compared to in Zongo and Mtikalia. In Zongo, Burkina Faso argued that the African Court should reject the application for reparations in its entirety, due to the fact that the Applicants had not established their status as indirect victims. Likewise in Mitikalia, Tanzania argued that the claim for reparations be eschewed, as the basis of the Applicant’s claim arose from his non-compliance with domestic law concerning the registration of political parties. In the present case, Burkina Faso did not argue that no award of reparations should be made to the Konaté whatsoever, but only that the amounts claimed were overstated and should subsequently be reduced. This marks a welcome departure from the previous cases and it will be interesting to see if public hearings for reparations claims become less frequent in future due to states choosing to not contest that any measure of redress be awarded once violations have been determined by the African Court.
In regards to the African Court’s award of reparations for material loss and damage, some interesting points arise that merit analysis. To begin with, whilst the African Court decided to greatly decrease the Applicant’s award from the 108 million CFA Francs claimed to 20 million CFA Francs, it provides little reason for this large reduction save for its criticism that the amount claimed by the Applicant was ‘excessive’. The African Court noted in its analysis that the Applicant had adduced no evidence to prove he could sell the amount of newspapers he claimed to be able to in his brief, and whilst it stated that the reduction was on the basis of “equity”, which it is accepted is not an exact science, there is still no explanation as to why it chose to reduce the Applicant’s claim by such a large amount. An interesting point is that although article 27(1) of the Protocol to the African Charter speaks of the need for “fair” reparations in the case of violations, the African Court in this case and in its previous reparations rulings has repeatedly stressed that the State is expected to make “full” reparations for loss or damage. The term “full” goes beyond the term “fair” and suggests that the State is required to place an Applicant in the position that they were in ex ante the violations. If this is what the African Court was aiming to achieve, then it was incumbent on it to elaborate on how the final award was sufficient to place Konaté back in the position he was in had the violations not occurred. Unfortunately, the opaque nature of the African Court’s calculations make it unclear how its final figure achieves this aim and disappointingly, future Applicants to the African Court can take little from its analysis, save for the need to produce detailed and accurate documentary evidence to support their reparations claims.
It has already been mentioned that the African Court awarded Konaté money for his medical expenses and for his family’s travel expenses however, its reasoning in respect of these awards warrants closer scrutiny. To begin with, Konaté submitted that not only did his family have to spend money on transport to visit him, but also that they had to effectively bribe Burkina Faso prison officials to be able to visit him once they arrived at the prison. Furthermore, in response to Konaté’s health problems, his family also had to pay money to the prison authorities to move him to a better ventilated part of the prison. Interestingly, the African Court did not reject that these payments, which offer a harrowing insight into Burkino Faso’s prison system, were made however it nevertheless declined to award Konaté these costs as such payments were not required by law. Whilst such payments may not have been “required by law” in a strict sense, if it is the case that they were necessary for Konaté family to have been able to visit and care for him, then this seems an incredibly harsh basis for precluding their reimbursement. The African Court could have chosen to award damages to Konaté on the basis of equity, as it does expressly at other parts of the judgement. This would have had the effect of redressing the clear loss to Konaté and his family as well as drawing the State’s attention to, and expressing disapproval for, corruption within Burkina Faso’s prison system.
A welcomed aspect of this Judgment is the continuation of the African Court’s tendency to use provisions from different human rights treaties to bolster ambiguous or weak provisions of the African Charter. Whilst freedom of expression is not recognised as an absolute right in any international or regional human rights instrument, the African Charter right is particularly restrictive in that it is limited to securing the freedom of expression “within the law”. This provision was initially met with concern, as it potentially makes the freedom of expression entirely dependent upon a State’s laws and many African States currently have defamation laws which impinge considerably upon this right. In this case however, the African Court seems to have addressed this issue by using another human rights treaty, namely the ICCPR, to buttress the freedom of expression protection in the African Charter. This follows on from the recent Oyango Judgement where the African Court analysed the Applicant’s right to fair trial through the lens of Article 14 of the ICCPR instead of Article 7 of the African Charter, deeming that Article 14 provided “more elaborate protections”. This is a positive development for the African Court as individuals’ rights are more robustly safeguarded through a confluence of different treaties rather than through sole reliance on the African Charter itself.
One of the most interesting aspects of the African Court’s analysis is its reasoning in respect of the Konaté criminal convictions. As has been mentioned, in the earlier Judgement, the African Court decided that Konaté’s imprisonment on charges of criminal defamation was in breach of the African Charter, ICCPR and ECOWAS Treaty. This ruling was met with jubilation by some commentators who considered that it sounded the death knell for criminal defamation charges across the African continent. However, the original Judgement and the present ruling on reparations illustrate that the African Court’s holding was decidedly more narrow than this. In the Judgement on the Merits, the African Court did not hold that criminal sanctions for defamation per se violated Konaté’s rights, but only that a ‘custodial sentence’ for defamation did. The African Court therefore stopped short of finding the defamation as a crime was in violation on international human rights instruments. Indeed, in respect of non-custodial sentences and civil penalties the African Court appears to have held that these are permissible, but that they must comply with the principles of necessity and proportionality. The African Court seemed to have reinforced this position in the Konaté reparations judgement, as although it chose to “endorse” Burkina Faso’s decision to erase all criminal convictions against Konaté, it did not go as far as to say that all criminal convictions would be in breach of his fundamental rights. It also refused to set aside the civil penalties against him, stating only that they must comply with the principles of necessity and proportionality. However, the African Court’s stance on defamation laws is to be welcomed, as the Konaté case demonstrated unequivocally that it is no longer the case that individuals can be imprisoned for journalism critical of a state which will undoubtedly have an impact for many journalists across Africa. Despite this welcome ruling that states may no longer impose custodial sentences on individuals for defamation, criminal sanctions, even if not accompanied by imprisonment, are inherently serious penalties which may attract grave consequences such as social stigma and difficulty accessing the labour market. Furthermore, it is as yet unclear what the African Court will determine to be ‘necessary and proportionate’ in regards to civil penalties and its lack of elaboration in this regard leaves States with a wide birth to impose potentially prohibitive sanctions on critical voices within the press.