With many countries heading to the polls this year, media freedom is again in the spotlight. In a ruling at the end of last month, the East African Court of Justice proved again how regional law can defend freedom of expression and the rights of media practitioners, across borders and without boundaries. The ruling on 28 May found sections of Tanzania’s Media Services Act (MSA) enacted in 2016 to be in violation of Tanzania’s obligations to the Treaty for the Establishment of the East African Community.
The joint petition brought by brought by the Media Council of Tanzania, the Legal and Human Rights Centre, and the Tanzania Human Rights Defenders Coalition in January 2017 challenged sections of the act, which they claimed were imposing unjustified restrictions on freedom of expression.
The court declared sixteen key provisions of the MSA in violation of the treaty’s fundamental and operational principles. Furthermore, Tanzania was directed to take necessary measures to bring its MSA into compliance with the treaty obligations.
Restrictions “vague, unclear and imprecise”
The court found that sections of the act that dealt with restrictions on what journalists could publish to be “vague, unclear and imprecise”. The court also ruled that wording in the section relating to this restriction fell short of defining what journalists could not publish.
In the judgment, the court emphasised that certain words used in the act were not enabling to the right of freedom of expression for journalists or other individuals. Words like “undermine”, “impede” “infringe lawful commercial interests”, “significantly undermines” and “damage to the information holders position” were found to be problematic in a society that prescribes to the values of media freedom and freedom of expression.
According to the court, on criminal sanctions for libel, sedition, defamation and false news publication it could rely on previous rulings such as the Federation of African Journalists vs The Republic of Gambia brought to the Ecowas Court of Justice in 2018. In this 2018 ruling, it was found that the practice of imposing criminal sanctions on sedition, libel and false news publication has “a chilling effect that may unduly restrict the exercise of freedom of expression for journalists”.
The East African Court of Justice also recently heard other cases dealing with the treaty’s freedom of expression obligations in Burundi, Uganda and Kenya. In the Burundi case, brought by the Burundian Journalists Union, the court observed that within the context of the treaty, freedom of the press and freedom of expression are essential components of democracy.
Other instructive court decisions in Africa
In May 2018, the Constitutional Court of Lesotho found the country’s defamation laws to be inconsistent with its constitution.
The judgment referred to provisions under Section 14, which has the freedom of expression clauses, as providing enough resources for “interpersonal repair and restoration of social harmony”, without the need for criminal proceedings and monetary compensations.
When it comes to public figures who feel aggrieved by criticism in the press, Lesotho’s apex court referred to a judgment from 1986. In the case of Lingens v Austria that was heard before the European Court of Human Rights, the court found that public figures should exercise a greater degree of tolerance.
The court said public figures enjoy less protection because by accepting public office, the man in questions “inevitably and knowingly lays himself open to close scrutiny of his very word or deed”.
The criminal defamation laws in Lesotho were also challenged on the basis of their vagueness. With the aid of various courts, including the African Court on Human and People’s Rights, the battle against criminal defamation in Africa has come a long way, with each victory a one step closer to institutionalised media freedom and freedom of expression.
The case of Lohé Issa Konaté v Burkina Faso is one of the cases that paved the way for vigorous debate and robust defence against criminal defamation, using regional law to protect journalists who find their rights and livelihoods under threat.
As Editor in Chief at L’ Ouragan Weekly, Konaté wrote and published two articles titled “Counterfeiting and laundering of fake bank notes - The Prosecutor of Faso, 3 Police Officers and a Bank Official” and “Miscarriage of Justice - The Prosecutor of Faso: a rogue office”.
Feeling aggrieved, this Burkinabe state prosecutor filed a complaint of defamation, public insult and contempt of court, initiating criminal proceedings against the editor. The Ouagadougou High Court convicted Konaté - a ruling that was subsequently upheld by the Ouagadougou Court of Appeal.
Facing one year in prison, as well as the payment of a fine, damages and court costs, Konaté approached the African Court on Human and Peoples’ Rights hoping to find relief in three pieces of regional law. He argued that the imprisonment and financial payments violated rights enshrined in three sources of continental and regional human rights law to which Burkina Faso is a signatory. The African Court on Human and Peoples’ Rights overturned the convictions against him.