It’s the Dawning of a New Day for Journalists in Africa! The African Court has finally spoken!

Capture023By Rashid Dumbuya

At last, what has turned out to be one of the longest and most protracted trials on egregious violations against journalists in Africa has finally being laid to rest. On the 28 of March, 2014,
in Arusha, Tanzania, Africa’s highest court, the African Court on Human and Peoples’ Rights, delivered a far-reaching decision that seeks to protect the right to life of journalists as well as the right to practice their vocation free from fear of intimidation and death.

The court, in its first ever ruling of its kind boldly held that ‘the failure of a government of
Burkin Faso to diligently seek and bring to account the persons responsible for the assassination of a journalist intimidates the media, has a chilling effect on free expression, violates the human rights of journalists, endangers truth, and should not be allowed’.

This landmark judgment came as a result of a case that concerns the killing of a journalist,
Norbert Zongo, who was the publisher and former editor of I’Indépendant in Burkina Faso, over 16 years ago. Before his murder, Zongo was working on a story about how David Ouedraogo, driver and domestic employee of Francis Campaoré, was tortured and killed in 1998 for allegedly stealing vast sums of money from his employer. The said Francis Campaoré happens to be the younger brother to Burkina Faso’s president, Blaise Campaoré. It was Zongo’s pursuit of the truth behind this story that led to his tragic death.

A presidential commission was eventually established to investigate Zongo’s killings and the Commission concluded that his killing was politically motivated, triggered by his mind blowing investigation into the killing of David Ouedraogo. The commission also identified five members of Burkina’s presidential guards to have been implicated in the killing.

Notwithstanding the compelling report of the Commission, only one of the five body guards, Marcel Kafando, was ever charged for these killings, and the charges were in fact later dropped against him.  All efforts by Zongo’s wife and her lawyers to seek accountability from the state for the killing of Zongo were thwarted.

In 2011, the bereaved wife of Zongo, Genevieve, with the help of human rights lawyers like Sankara Benewende and a host of others made their last attempt in their long search for justice to the African Court on Human and Peoples Rights. It was certainly a risky move but because of her determination and love for her husband, Genevieve confronted her worst fears… and with the help of human rights advocates, she successfully took the Burkina Faso government to the African Court.

When Burkina Faso appeared before the African Court, it raised a jurisdictional objection that the African Court could not hear a case about a killing that occurred in 1998 since it was only fully established in 2005. But the court’s wisest judges skilfully threw out this objection, ruling that ‘the failure to diligently look for and find the killers of Zongo, if true, was a
continuing one which had not yet ended’. Hence, the case was declared admissible.

Burkina Faso notwithstanding the first blow made another comeback and further argued that its government could not be held responsible for failing to find the killers of Zongo stating with impunity that ‘no one had held the United States of America, the most powerful country in the world, responsible for failing to find the killers of John F. Kennedy’.

In its judgment, the African Court on human and people’s rights stated that what Burkina Faso did was in effect a cover-up, which violated the African Charter on Human and Peoples’ Rights. It also found ‘the government of Burkina Faso in violation of the Revised Treaty of the Economic Community of West African States (ECOWAS), which requires it not only to protect freedom of expression, but also the vocation of journalism’.

Commenting on the raison d’etre of its decision, the court pointed out that ‘the legal proceedings before the courts in Burkina Faso were unduly prolonged; that Burkina Faso didn’t diligently investigate the crimes; that the families of the victims had not been contacted over eight years after the beginning of the case they initiated; that no proper investigation was ever conducted into the case; and that the government showed no will to hold the killers to account. The court also held that the killing of a journalist was a method of intimidation that should not be allowed anywhere.’

Significance of this decision for journalists in the African continent

This decision certainly has far and wide reaching implications for journalist’s protection in Africa and beyond. According to a recent report done by UNESCO, the last decade has witnessed egregious human rights violations being committed to journalist all over the world. According to the report, “more than 600 journalists and media workers have been killed… The report further concludes that…. ‘Attacks on media professionals are often perpetrated in non-conflict situations by organized crime groups, militia, security personnel, and even local police, making local journalists among the most vulnerable.” In nearly all these cases, no one gets punished for these killings.’

Also judging from the State of the Media Report 2013, done by Society for Democratic Initiatives in Sierra Leone, it is apparently clear that journalists in Sierra Leone are still not free to carry out their vocation without fear of intimidation and criminal charges. Apart from the numerous arrests that were made against Journalists in 2013, the presence of certain laws such as the Public Order Act of 1965 is indeed a testament to the numerous challenges on press freedom in the country.

Sections 26 and 27 of the Public Order Act WHICH CRIMINALISES libel clearly undermines freedom of speech, freedom of assembly and freedom of association, three fundamental human rights provisions that are guaranteed under Sierra Leone’s 1991 constitution and other International treaties and conventions such as the United Nations Declaration on Human Rights, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, all of which Sierra Leone has ratified.

Certainly, like has been re-echoed by the African Court and other regional human rights court the world over, to put journalists behind bars for simply expressing their opinions and exercising their fundamental human rights is not only unreasonable a response but also unnecessary in an open and democratic society. Sections 26 and 27 of the Public Order Act in Sierra Leone can be replaced with a Civil Defamatory law that will hold members of the Press and media houses accountable in the event where they intentionally defame the character of any person in the society. Such a civil law would have as a sanction; monetary compensation, open retraction equal in effect to the defamatory publication, public and written apology, suspension of a journalist or media house from publication or broadcast for a reasonable period and editorial censorship in the event where a journalist or media house crosses the redline and become unprofessional in their duties.

In conclusion, While I salute the daring wife of Zongo ( Genevieve) for mountain up courage in the face of deep animosity and political strangulation,  Zongo’s decision before the African Court has said it all….’the state has an obligation to guarantee the protection of the rights of journalists within the state’.  Of a truth, an excellent precedent has been establish in international law and Africa’s highest Court has echoed out loudly that it will not take light with any state that  fails to guarantee the rights and vocation of journalists.  But how many African states will endeavour to respect and abide by this decision is a question that will soon be answered clearly by them.

*All Right Reserved

RashidRashid Dumbuya is an International Human Rights Lawyer and a practicing Barrister and Solicitor from the Republic of Sierra Leone. He holds a Bachelor of Arts and a Bachelor of Laws honours degree as well as a Masters of Laws degree in International Human Rights Law from the Centre for Human Rights University of Pretoria, South Africa. He is currently an LLM candidate pursuing Petroleum Law and Policy at the University of Dundee, Scotland, United Kingdom.

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