Redefining Criminal Defamation Laws in South Sudan: Lessons from Konaté v. Burkina Faso
"Freedom of Speech Includes The Press" by narih lee is licensed under CC BY 2.0.
Despite a global shift toward decriminalisation, 160 countries still maintain criminal defamation laws.
These laws, often justified as targeting disinformation, misinformation, cybercrime, or hate speech, frequently include vague language or impose disproportionate punishments.
In South Sudan, criminal defamation is frequently used to stifle journalists and restrict press freedom, thereby obstructing the nation’s democratisation efforts.
By analysing the principles from the landmark case of Konaté v. Burkina Faso decided by the African Court on Human and Peoples' Rights., this opinion piece advocates for the decriminalisation of defamation in South Sudan and the adoption of civil remedies that balance individual reputation protection with the need for a free and independent press. Finally, it critically examines South Sudan's current legal framework, highlighting the inconsistencies and ambiguities that allow for the misuse of criminal defamation against journalists.
Summary of the facts
In 2012, journalist Lohé Issa Konaté, from Burkina Faso, was convicted of defamation and sentenced to one year in prison after publishing two articles accusing a state prosecutor of corruption. Konaté was also ordered to pay a fine of $3000 and $9,000 in damages to the prosecutor.
In June 2013, an application was filed on behalf of Mr. Konaté before the African Court on Human and Peoples' Rights (ACHPR), arguing that the severe penalties violated his right to freedom of expression as protected under 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 Treaty of the Economic Community of West African States (ECOWAS), to all of which Burkina Faso is a party.
In evaluating the legality of Burkina Faso's defamation laws in light of international treaties, the Court applied a three-part analysis: clarity of the law, legitimacy of the purpose, and necessity of the limitation. It found that Burkina Faso's laws met the first two criteria, as they clearly defined restrictions and aimed to protect individuals' reputations, which served a public interest. However, the Court determined that the criminal penalties were disproportionate and unnecessary, particularly when speech involved public figures.
The Court's analysis centred on whether the criminal penalties were proportionate to the goal of protecting the prosecutor's honour. It emphasized that any penalties imposed should be strictly necessary to achieve the intended objective. The Court also noted that there should be even less interference when the speech in question pertains to public debate involving public figures.
The Court concluded that civil remedies are sufficient for protecting reputations and that criminal defamation laws stifle freedom of expression.
In its final judgment, the Court ruled that Burkina Faso had breached its obligations under 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 ECOWAS Treaty. The Court ordered Burkina Faso to amend its domestic law to reflect that criminal penalties for defamation are not permissible. In addition, Mr. Konaté was entitled to seek reparations from Burkina Faso, subject to the submission of a brief on the matter.
The lesson from this landmark decision is that defamation laws imposing criminal penalties will only be considered acceptable restrictions on freedom of expression in extremely rare cases. Consequently, African states that are parties to the African Charter on Human and Peoples’ Rights are effectively prohibited from using criminal charges for defamation without breaching the Charter’s protections for freedom of expression. The ruling is especially important as it has set a precedent against criminal defamation across the continent. Joining Burkina Faso, Togo, and Ghana, twenty-seven countries, many of which have low press freedom rankings, have committed to adhering to the African Court's decision. In Uganda, the case was cited by a journalist while requesting that a judge dismiss his criminal defamation charges. The judge asked for a copy of the ruling for review.
“…criminal defamation laws, especially those involving imprisonment, pose a significant risk to free speech.”
Overview of defamation laws and their implications in South Sudan
Defamation in South Sudan is governed by the provisions of the Media Authority Act 2013 and the Penal Code Act 2008.
Section 75 of the Penal Code Act criminalises publishing or communicating information deemed "prejudicial to South Sudan," including false statements or those that could incite disorder, harm public services, affect national defence or economy, undermine confidence in law enforcement, or disrupt essential services. Section 76 imposes additional restrictions on statements about the President or Acting President, particularly those that could incite hostility, cause ridicule, or involve abusive or obscene language. Section 289 defines criminal defamation as making statements intended to harm someone's reputation, punishable by up to two years in prison, a fine, or both.
Section 28 of the Media Authority Act allows individuals and legal entities to sue organisations or journalists for defamation. It sets criteria for defamation claims, including public statements, identification of the complainant, the defamatory nature of the statement, its falsity, and resulting harm.
Defamation is treated as a civil offense, with complaints first handled by the Press and Broadcast Complaints Council. However, section 5 of the Act contradicts this by defining defamation as criminal matter in line with the Penal Code, creating a conflict with the Act's earlier version that treated defamation solely as a civil matter. The current practice is that defamation cases against journalists and media outlets are adjudicated by the criminal courts.
According to the report by Commission for Human Rights in South Sudan, it is reported that defamation laws are misused, for instance baseless prosecutions are launched against journalists covering corruption. One notable instance is the case of Zechariah Makuach Maror, who reported on corruption allegations involving the then-Minister of Finance, Hon. Salvatore Garang Mabiordit. In September 2020, he was prosecuted and convicted of defamation, but was acquitted two months later after the President dismissed the Minister.
Lessons for South Sudan
The UN Special Rapporteur and various international and regional bodies advocate for replacing criminal defamation laws with civil laws, arguing that civil laws adequately protect reputations without threatening freedom of expression. They highlight that criminal defamation laws, especially those involving imprisonment, pose a significant risk to free speech.
The African Commission's Resolution 169 calls for the repeal of such laws that impede free speech, urging adherence to regional and international freedom of expression standards. The UN Human Rights Committee (UNHRC) also recommends decriminalising defamation, stressing that criminal defamation should be reserved for the most severe cases, with imprisonment never being an appropriate penalty, as delays in these cases can have a chilling effect on free expression.
It is important that South Sudan aligns its legal frameworks with international and regional human rights standards. Furthermore, South Sudan, as a State party to the African Charter should decriminalise defamation, in line with the precedent set by the African Court in the Konate case.
Conclusion
South Sudan’s Transitional Constitution of 2011 guarantees freedom of expression, press freedom and access to information. The government is commended for establishing a progressive legal framework through various policy reforms. For example, the Media Authority Act (2013), the Broadcasting Corporation Act (2013), and the Right of Access to Information Act (2014) which offer some opportunities for promoting press freedom and access to information. However, these legislative frameworks stand in sharp contrast to the Penal Code Act 2008 and the National Security Act 2014 which restrict the media's ability to operate freely and criminalises defamation and libel. Therefore, despite the presence of these progressive laws, there are clear gaps that need to be aligned with the international human rights standards, particularly the provisions on criminalisation of defamation and limitation clauses.
Alongside the recommendations from the UN Special Rapporteur, the UN Human Rights Committee, and various international and regional bodies, the Konaté case provides a critical framework for South Sudan to decriminalise defamation. By doing so, South Sudan can foster a media environment that upholds free speech and access to information which are essential pillars of democracy and good governance.
