Konate v Burkina Faso (Application No. 004/2013) [2013] AfCHPR 39 (4 October 2013)

AFRICAN UNION '~ UNION AFR/CA/NE AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS UNIAO AFRICANA COUR AFRICAINE DES DROITS DE L' HOMME ET DES PEUPLES IN THE MA ITER OF LOHE ISSA KONATE v. BURKINA FASO APPLICATION NO. 004/2013 ORDER OF PROVISIONAL MEASURES The Court composed of: Sophta A. B AKUFFO, President, Bernard M NGOEPE, Vice-president; Gerard NIYUNGEKO, Fatsah OUGUERGOUZ, Augusttno S L. RAMADHAN I, Duncan TAMBALA, Elsie N THOMPSON, Sylvain ORE, El Hadji GUISSE, Ben KIOKOand Kimelabalou ABA- Judges; and Robert ENO- Registrar, In the Matter of: LOHE ISSA KONATE v. BURKINA FASO After having deliberated, Makes the followtng Order. I. Subject of the Appli cation 1 The Applicant, Lohe lssa Konate. who is the Editor-in-Chief of "Ouragan", a Burktnabe weekly, filed an Application dated 14 June 2013, which was received at the Court on 17 June 2013,and registered as Application No. 004/2013. 2. The Applicant is represented by Advocates Yakare Oule (Nani) Jansem and John R. W. D. Jones 3. In a cnmtnal matter brought against him, the Ouagadougou High Court in 1ts ruling sentenced the Applicant to a one year term of imprisonment for libel and to a fine of 1,500,000 Francs (USD 3,000). In a civil suit. the same Court ordered the Applicant to pay the sum of 4,500,000 Francs(or USD 9,000) as damages to the parties and 250,000 Francs(USD 500)as costs. -~ -Jj!:­ @_ ~ \ ~ 2r/ c:;;?- 4. The Applicant submits that his sentence to a one-year term of imprisonment and to the payment of a substantial fine as damages and costs are in breach of h1s right to freedom of expression, which is protected by various treaties to which Burk1na Faso is party He alleges, in particular, the violation of his rights under Article 9 of the African Charter on Human and Peoples' Rights and Article 19 of the lnternattonal Covenant on Civil and Political Rights. 5. On the merits, the Applicant prays the Court: "1. To declare that his sentence, in particular, to a term of Imprisonment and to the payment of a substantial fine as damages and costs , amounts to a violation of his right to freedom of expresston; 2. To declare that the laws of Burkma Faso w1th regard to libel and slander are inconsistent with the right to freedom of expression or, failing that, to find that the term of imprisonment for slander 1s inconsistent with the right to freedom of expression and therefore. to order Burkina Faso to amend its legislation accordingly; and 3. To Order Burkina Faso to pay him compensation, mter al1a for the loss of income and benefits, and as damages for the moral hardship he has suffered ". 6. In his Application. the Applicant. who was immediately sent to prison, seeks provisional measures "requiring Burkina Faso to release him Immediately or, alternatively, to provide h1m with adequate med1cal care". II. Proceedings before the Court 7 . By letter dated 10 July 2013, addressed to Counsel for the Applicant, the Registrar acknowledged receipt of the Application pursuant to Rule 34 (1) of the Rules of Court. ~~ -~ @__~ ) 1-} } ~I. Wo)A. ~t.. CTD. 8. By another letter dated 10 July 2013, addressed to the Fore1gn Minister of Burkina Faso, the Registrar forwarded a copy of the Application to the Respondent, pursuant to Rule 35 (2) of the Rules In the letter, the Respondent was asked to indicate, within thirty (30) days of receipt of the Application . the names and addresses of its representatives as required under Rule 35 (4) of the Rules and to respond to the Application within sixty (60) days as required under Rule 37 of the Rules. 9. By letter dated 1 o July 2013, addressed to the Chairperson of the African Union Commission, the Registrar informed her and through her, the Execut1ve Council of the African Un1on a'ld other States Parties to the Protocol establishing the Court (hereinafter referred to as "the Protocol") of the filing of the Application, pursuant to Rule 35 (3) of the Rules. 10. By Note Verbale dated 18 July 2013, addressed to the Court, the Embassy of Burkin a Faso and Permanent Mission to the Afncan Union in Addis Ababa , acknowledged receipt of the Registrar's letter ment1oned in the preceding paragraph Ill. On the prima fa cie jurisdiction of the Court 11 . As stated in paragraph 6 above, the Applicant prays the Court to Order provisional measures. 12 In considenng an Application, the Court must ensure that it has JUrisdiction to hear the case , pursuant to Articles 3 and 5 of the Protocol 13. However, before ordering provisional measures. the Court need not conclusively satisfy Itself that it has jurisdiction on the ments of the case, but simply needs to satisfy 1tself, prima facie, that it has jurisdiction ; 14 Article 3 ( 1) of the Protocol provides that "the jurisdiction of the Court shall and application of the Charter, th1s Protocol and any other relevant human rights instrument ratified by the States concerned" 15 Burkma Faso ratified the Charter on 6 July 1984 and the Protocol on 31 December 1998, and is therefore party to both instruments, it has equally on 28 July 1998. made the declaration accepting the competence of the Court to receive cases from Individuals and non-governmental organisations, withm the meaning of Article 34 (6) of the Protocol 16. In light of the above, the Court finds that it does have prima facte junsdiction to hear the Application IV. On the provisional measures sought 17 Article 27 (2) of the Protocol prov1des that ''m cases of extreme gravity and urgency, and when necessary to avo1d irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary". 18. The first provisional measure sought by the Applicant is his immediate release. 19. The Court observes that consideration of the measure sought here. corresponds in substance, to one of the reliefs sought in the substantive case . namely that the punishment of imprisonment is 1n essence a VIolation of the right to freedom of expression, in the opin1on of the Court, consideration of th1s prayer would adversely affect consideration of the substantive case. 20. For this reason , the Court cannot grant the Applicant's request for his Immediate release within the framework of a prov1s1onal measure. 21 The second provisional measure sought by the Applicant is that, in the event his immediate release is denied, the Respondent be ordered to provide him with adequate medical care. He states that his health had deteriorated s1nce his detention and that he needed medication and ad:~al cp . ,... ~ -r-h 5 ~ ~ / ~ ~ 22 The Court observes that, the Respondent, having been duly Informed of these allegations, has not raised any objection In the opinion of the Court, the situation in which the Appl1cant finds himself appears to be a situation that can cause irreparable harm. The Court is therefore of the opinion that the Applicant is entitled to access all medical care that his health condition requires . 23. For these reasons, The Court (i) By majority (Justices Ramadhani , Tambala and Thompson dissentmg), Rejects the Applicant's request for 1m mediate release; (ii) Unanimously, Upholds his request to be provided w1th med1cat1on and health care for the entire period of his detention, 1n v1ew of h1s health situation, - Consequently, Orders the Respondent to prov1de the Applicant with the medication and health care required; Further Orders the Respondent to report to the Court within 15 days from the receipt of this Order on the measures it has taken to enforce the said Order. Done at Arusha , this Fourth day of October, Two Thousand and Thirteen, In English and French, the French text being authontat1ve Signed: Sophia A. B. AKUFFO , Pres1dent -- Bernard M. NGOEPE, Vice-president ~I Gerard NIYUNGEKO. Judge~ \FD , Fatsah OUGUERGOUZ, Judge Gtt-'?1:"...,_.......~ - ~ ~ August1no S L RAMADHANI , Judge p)~ Duncan TAMBALA, Judge ~ Elsie N. THOMPSON , Judge Sylvain ORE, Judge, Ben KIOKO , Judge El Hadj1 GUISSE, Judge K1melabalou ABA, Judge; and Robert ENO, Registrar Pursuant to Article 28(7) of the Protocol and Rule 60(5) of the Rules, the Jomt Dissenting Opinion of Justices Ramadhan1 , Tambala and Thompson is appended to this Order. AFRICAN UNION UNION AFRICAINE UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES P. O Box 6274Arusha, Tanzania Telephone: +255 732 979 509 Fax. +255 732 979 503 IN THE MATIER OF LOHE ISSA KONATE v. BURKINA FASO APPLICATION Ng 004/2013 JOINT DISSENTING OPINION OF JUSTICES RAMADHANI, TAMBALA AND THOMPSON 1. We have had the privilege of reading the Order of Provisional Measures in draft. We are however having great difficulty agreeing with the reasoning of the majority for refusing the first request by the Applicant, that is, "his immediate release". Surely the Applicant is not saying that he be released without more. He is asking that he be released provisionally pending the determination of his Application before this Court. 2. There is no reason why this cannot be done, especially when the Respondent that has been served with the Application which incorporates the request for provisional measures has not raised any objection. 3. The granting of this leg of the request for provisional measure will in no way touch or prejudice the substantive application. If the Application Is refused the Applicant will simply be sent back to jail to complete his sentence. 4. Failure to grant this leg of the application wtll cause irreparable harm. Admittedly, every case has to be JUdged on its own merits, but generally it can be said that personal freedom cannot be compensated by monetary damages. In the present case, the Applicant's release from prison will aid, to a great extent, his request for medication and healthcare Stgned· Justice Augustine S L. Ramadhani ~f~ t~' Justice Duncan Tambala t\~\1\JL .. , Justice Elsie N. Thompson ~ Dated at Arusha thts 4th day of October, 2013