A Fine Balance: Assessing Restrictions on Freedom of Expression at the African Court on Human and Peoples’ Rights

 

 

By Oliver Windridge, a British lawyer specializing in international human rights and international criminal law. He is founder of The ACtHPR Monitor, a website and blog dedicated to the African Court on Human and Peoples’ Rights (African Court). In 2014 Oliver was appointed to the African Court’s List of Counsel (pro bono). He has advised numerous NGOs and individuals on litigation within the African human rights system and currently serves as counsel in cases pending before the African Court and African Commission on Human and Peoples’ Rights. Oliver can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. and via Twitter: @oliverwindridge.

 

Abstract

 

Freedom of Expression is an important right in any democratic society. But this right is not without restrictions. Indeed, international human rights law has been drafted to allow for some restrictions on freedom of expression when such restrictions serve the greater good of society. This paper examines the African Court on Human and Peoples’ Rights’ emerging jurisprudence on freedom of expression, and what constitutes a legitimate restriction on freedom of expression. Examining the cases of Lohé Issa Konaté v Burkina Faso and Ingabire Victoire Umuhoza v Republic of Rwanda, this paper reveals the emergence of a four-limb test to evaluate whether restrictions are in fact compliant with both the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. Whilst this test is still in an early stage of application, the paper argues that it serves as a clear and effective way of assessing future potential cases for challenge within the African human rights system.

 

Introduction

 

Freedom of expression is a dearly cherished right, found in all democratic societies, and ensconced in international human rights law.[1] The right to freely express opinions allows the free exchange of ideas and concepts, and sees those ideas and concepts evolve into conversation and debate, which can in turn can result in action and change. However, whilst some rights – the prohibition from torture for example – are absolute,[2] the right to freely express one’s views is not. The right to freedom of expression can be restricted when these limitations seek to balance the right to say anything with the protection of individual and society more broadly from what is said. This balance is necessary as some expressions – incitement to violence, hatred and even genocide – if left unfettered have the possibility to reparably damage society in the most destructive ways. Thus, the right to freedom of expression and the grounding for restricting it is paramount, as found most prominently in Article 19 of the International Covenant on Civil and Political Rights (ICCPR).[3] At the continental level, the African Charter on Human and Peoples’ Rights (African Charter) also contains provisions for the freedom of expression under Article 9.[4] Importantly, both the ICCPR and African Charter contain direction on when the restriction on freedom of expression is valid – often referred to as “duties and responsibilities”.[5]

 

This paper will examine the African Court on Human and Peoples’ Rights (African Court) approach to restrictions on freedom of expression by focusing on Lohé Issa Konaté v Burkina Faso and Ingabire Victoire Umuhoza v Republic of Rwanda.[6] It will provide a background to both cases before examining how the African Court has approached restrictions to freedom of expression. Specifically, this paper sets out the test that the African Court has sought to apply to challenges to restrictions imposed by member states. In a nod to the practical, this paper also includes a simplified flow chart to set out the tests applied by the African Court and assist the reader in determining whether current or proposed restrictions of freedom of expression comply with international human rights law. Though in its infancy, this paper argues that the test found in these two cases proves a reliable starting point from which to assess whether national laws such as those found in Gambia comply with international human rights standards. This assessment is particularly relevant given the recent Economic Community for West African States (ECOWAS) judgement FAJ et al. v. Gambia, which reportedly relied heavily on the two cases reviewed in this paper.[7] As the ECOWAS judgement was anchored on the foundations of the African Court’s cases reviewed in this paper, the need for a careful review of these cases proves even more important.

 

Background

 

At the outset, it is worth nothing that in both Konaté and Ingabire judgements, the applicants challenged restrictions on their freedom of expression in relation to Article 9 of the African Charter, but also Article 19 of the ICCPR.[8] In the Konaté case, the applicant also alleged violation of Article 66 (2) (c) of the ECOWAS Treaty.[9]

 

In the Konaté Judgement, Mr. Konaté, a Burkinabe national, was Editor-In-Chief of L’Ouragan Weekly – an independent newspaper focussing on political and social issues published in Burkina Faso.[10] In a number  of articles published in L’Ouraganin, Mr. Konaté made allegations against the Burkina Faso Public Prosecutor, which led to his prosecution under criminal defamation laws for defamation, public insult and contempt of court.[11] On 29th October 2012, the Ouagadougou Court sentenced Mr. Konaté to twelve-months imprisonment, and ordered him to pay a fine of 1.5 million CFA Francs. Mr. Konaté was also ordered to pay the Prosecutor 4.5 million CFA Francs as damages plus interest and court costs of 250,0000 CFA Francs. Furthermore, the court ordered that the L’Ouragan Weekly be suspended for six months and for the judgement against Mr. Konaté to be published in three separate newspapers, including in the L’Ouragan Weekly, for four months.[12] Following the confirmation of the judgement by the Ouagadougou Court of Appeal, Mr. Konaté petitioned the African Court arguing that the jail term, huge fines, damages and court costs violated his freedom of expression.[13]

 

The Ingabire judgement concerned Ms. Ingabire – the leader of a political party called Forces Démocratiques Unifiées.[14] In 2010, after nearly 17 years abroad, Ms. Ingabire decided to return to Rwanda to contribute to nation building. Her priorities included the registration of the political party in compliance with Rwandan laws.[15] In February 2010, soon after her arrival back in Rwanda, charges were brought against her.[16] These charges emanated from remarks that Ms. Ingabire made at the Kigali Genocide Memorial, as well as other interviews and statements.[17] In April 2010 she was consequently remanded in custody on charges of complicity in terrorism, and the ideology of genocide.[18] These charges were later amended, and Ms. Ingabire was charged by the Gasabo High Court with similar offences including, inter alia, propagation of ideology of genocide, aiding and abetting terrorism, and spreading rumours likely to incite the population against political authorities and mount citizens against one another.[19] Following a series of delays and challenges, the High Court delivered its judgement on 30th October 2012, finding Ms. Ingabire guilty of conspiracy to undermine established authority and violate constitutional principles by resorting to terrorism and armed force.[20] She was further found guilty of minimisation of the genocide, and sentenced to a total of eight-years imprisonment.[21] In its judgement on appeal, the Rwandan Supreme Court resentenced Ms. Ingabire to fifteen-years imprisonment for undermining the Rwandan Government and the Rwandan Constitution through acts of terrorism, war or other violent means, of downplaying genocide, and of spreading rumours with the intent to incite the population against the existing authorities.[22] Upon this judgement, Ms. Ingabire petitioned the African Court, arguing that her convictions stemming from her speeches violated her right to freedom of expression.[23]

 

Assessing Restrictions on Freedom of Expression

 

The African Court has made clear that the right to freedom of opinion or expression is not unfettered; some restriction is permitted within international human rights law.[24] The African Court has developed a four-limb test to examine whether such restrictions are indeed valid. These elements assess whether: (i) there a restriction on freedom of expression; (ii) the restriction is proscribed by law; (iii) the restriction serves a legitimate purpose; and (iv) the restriction is necessary and proportional. The remainder of this paper will now examine each element in turn.

 

Is there a Restriction on Freedom of Expression?

 

Before assessing the African Court’s approach to the restrictions on expression, there must first be a restriction to assess. Without a restriction, the test to consider a restriction’s validity becomes obviously moot. This may be particularly relevant if a Member State argues, either domestically or before regional courts such as the African Court, that there is in fact no restriction on freedom of expression. In both cases examined here however, the Member States did not contest the existence of restrictions.[25] Instead, both argued that the restrictions were justified. Broadly speaking, Rwanda argued that freedom of expression was restricted by laws prohibiting the denial of the 1994 Rwandan genocide or the promotion of future genocide, particularly given Rwanda’s tragic recent history.[26] By contrast, Burkina Faso argued the restriction found in criminal defamation laws were required to protect the honour of its public officials.[27]

 

Is the Restriction Proscribed by Law?

 

In the Konaté judgement, the African Court looked to Article 19 (2) of the ICCPR and the UN Human Rights Committee’s definition of the “law”.[28] These definitions were bolstered by findings from the African Commission on Human and Peoples’ Rights (African Commission), concluding that the grounds for limitation of freedom of expression are not expressly provided for, and that the term “within the law” provides leeway to cautiously fit in legitimate and justifiable individual, collective and national interest as grounds of limitation.[29] Consequently, it found that the phrase “within the law” as found in Article 9 (2) of the African Charter must be interpreted with reference to international norms, which can provide grounds of limitation on freedom of expression.[30] With this in mind, the African Court found that restrictions were indeed “proscribed by law”, as they were contained in the Burkina Faso Penal and Information Codes, and were drafted with sufficient clarity to enable individuals to adapt their conduct according to the laws, and to enable those in charge of applying the rules to determine what forms of expression are legitimately restricted, and which are unduly so.[31]

 

In the Ingabire judgement, the African Court observed that there was no dispute over the restrictions placed on Ingabire’s statements as contained in Rwandan law.[32] The African Court therefore found that the restrictions could properly be described as “proscribed by law”, since they were found in Rwandan legislation – echoing the African Court’s approach in the Konaté judgement.[33] However, in the Ingabire judgement, Ms. Ingabire challenged not just the restriction’s existence in national legislation, but also the nature of the law itself. Ms. Ingabire argued that although the restriction could be found in a law, this law was vague and unclear, which rendered its existence invalid.[34] In response to this line of argument, the African Court further developed the notion of “law”, as found in Article 9 (2) of the African Charter’s “proscribed by law”. In particular, it found that “law” must be interpreted in light of international standards.[35] In doing so, the African Court found that the “law” must be: (i) clear; (ii) foreseeable; (iii) compatible; and (iv) of general application.[36] Applying this test, the African Court found that although some terms of the Rwanda legislation were broad, given the difficulty with which defining certain types of speech and the margin of appreciation given to member states the laws, the laws were indeed proscribed by law.[37]

 

 

 

Does the Restriction Serve a Legitimate Purpose?

 

In the Konaté judgement, the African Court set out that for a restriction to serve a “legitimate purpose”, it must be legitimately in the public interest, and the disadvantages to the individual must be strictly proportionate to and absolutely necessary for the benefits to be gained.[38] In terms of legitimate public interest, the African Court made clear that only restrictions stipulated in Article 27 (2) of the African Charter are valid.[39] The African Court again looked to the ICCPR, citing Article 19 (3) (a) and (b).[40] It considered these texts against Burkina Faso’s explanation that the laws restricting expression served the legitimate purpose of protecting the honour of public officials.[41] The African Court agreed, finding that such protection was a legitimate purpose.[42] In Ingabire, the African Court applied the same test against Rwanda’s submissions that genocide-related laws restricting freedom of expression served a legitimate purpose, as they sought to stabilise the country and prevent further atrocities.[43] Again, the African Court found that such aims were indeed, legitimate.[44]

 

Is the Restriction Necessary and Proportional?

 

With regards to Konaté, the African Court began by stating that in order for the restriction to be assessed as necessary, the context must be considered.[45] It set out further that such an assessment must ascertain whether the restriction is a proportionate measure to protect the rights of others.[46] To assess this need and proportionality, the African Court looked once more to Article 19 (3) of the ICCPR, as well as similar case law from the African Commission, UN Human Rights Committee, European Court of Human Rights and the Inter-American Court of Human Rights.[47] Helpfully, the African Court provided examples of restrictions considered necessary and proportional, including the criminalisation of speech often termed “hate speech” or speech inciting violence.[48]

 

The African Court also made clear that in assessing the necessity and proportionality of any restriction on freedom of speech, it will examine who the opinion or statement is aimed at.[49] As such, it set out that the restriction should not be used to protect solely those in public positions, as seen in Burkina Faso’s criminal defamation laws.[50]

 

The African Court considered the use of criminal defamation laws and the sentences provided within the legislation, recalling that such laws have consistently been considered measures of last resort by other regional human rights courts and committees.[51] With this in mind, the African Court deemed Burkina Faso as failing to demonstrate why defamation as a criminal offence punishable by imprisonment is a necessary limitation to freedom of expression, in order to protect public officials.[52] Accordingly, the African Court found Burkina Faso in violation of Article 9 (2) of the African Charter, Article 19 of the ICCPR and Article 66 (2) (c) of the ECOWAS Treaty.[53]

 

This theme was developed further in the Ingabire judgement. The African Court recalled that restriction must be strictly necessary in a democratic society and proportional to the legitimate purposes pursued by imposing such restrictions – further emphasising the need for placing restrictions on forms of expression in  context.[54] Thus, the African Court split the speeches of Ingabire into those referring to the Rwandan Genocide, and those aimed at public officials.[55] The African Court found that restrictions within the context of the Rwandan Genocide could be deemed necessary and proportional, but in this case, the speech made by Ingabire was not in fact aimed at genocide denial, but more generally towards the situation in Rwanda post-genocide. [56]

 

Referring to statements about those in the public eye, the African Court found that politicians and the judiciary should be prepared to accept a higher level of criticism than the general public, without imposing restrictions on speech.[57] The African Court also made clear that freedom of expression protects not only favourable or inoffensive opinions, but also those that disturb a state or section of the population.[58] Therefore, whilst laws prescribed to criminalise genocide-minimisation acts are legitimate, they should not be applied to the rights and freedoms of individuals, or in a manner that disregards international human rights standards.[59] Indeed, the African Court reiterated that the legitimate exercise of rights and freedoms is as important as the application of laws seeking to promote national security and public order, indicating that AU Member States cannot assume that the need to quell serious atrocities trumps individual rights.

 

As to Ingabire’s remarks criticising government and officials, the African Court stated the whilst some comments may be offensive or discredit the integrity of public officials and institutions, such statements should be tolerated within a democratic society.[60] Reiterating its stance from the Konaté judgement, the African Court found that public officials must maintain a higher degree of tolerance to such comments.[61] It is notable that the African Court found that even in the event that these types of statements could be legitimately restricted, the sentence itself was not proportional and would thus fail the third limb of the test.[62] Considering the above, the African Court found Rwanda in violation of Article 9 (2) of the African Charter and Article 19 of the ICCPR.[63]

 

Restriction on Freedom of Expression Overview

 

From the proceeding paragraphs, there is a clear emergence of a four-limbed test to examine whether a AU Member State’s laws, actions and policies are valid under international law – specifically, the ICCPR and African Charter. Within these four limbs exist a further sub-set of tests, as illustrated by the following flow chart to determine whether restrictions to freedom of expression are valid under international human rights law:


 

Key: Red Arrow = No Green Arrow = Yes

 


 


 

 

 


 

 



 

 

 

Conclusion

 

It is undisputed that restrictions to freedom of expression can exist within the remit of international human rights law. Indeed, the African Court makes this abundantly clear in both Konaté and Ingabire judgements. How these restrictions manifest is set out in relative detail in the ICCPR, whereas the African Charter is not quite so clear. Given the lack of detail in the African Charter itself, the African Court’s jurisprudential development of the four-limb test provides welcome clarity. The existence of a four-limb test, with each part containing further hurdles might appear complicated, but nevertheless, is necessary. Despite restrictions being recognised in international human rights law, it is still difficult for an AU Member State to justify a restriction to freedom of expression.

 

Considering first the “proscribed by law” limb, the African Court’s reasoning develops from the Konaté judgement to the Ingabire judgement: In Ingabire, the African Court assesses the term “law” in greater detail. What this examination leads to is further explanation that “proscribed by law”, requires not only that an AU Member State can point to the statute book, but also that the content of the law complies with international standards. Therefore, the first step is to ask “can I point to the restriction?” and “is the restriction easy to find?”. If the answer is no, then the restriction does not comply with international standards. If the answer is yes, the second step is to ask “is the law clear, foreseeable, compatible and of general application?”. Again, a restriction that does not meet this standard signals a violation. This puts the onus on AU Member States to draft new laws or amend existing laws on what may constitute a legitimate restriction on freedom of expression. The Ingabire judgement allows the laws to be widely drawn and still meet this threshold; perhaps giving Member States an overly extensive net in which to cast into the waters, but this may become refined in future cases.

 

As to the “legitimate purpose” limb, it can be argued that the African Court has widely construed the test in these two cases. The most straightforward is the Ingabire judgement. Here, the aim of ensuring national security and preventing further atrocities is without reproach. What will be interesting is to see if future Member States refer to the same arguments for their explanation. What may seem an entirely reasonable aim in a country emerging from genocide may not be so convincing for a country trying to play a similar card without being in a similar position. The Konaté judgement sees the “legitimate purpose” aim stretched even further: Here, the African Court was satisfied that restrictions aimed at persevering the “honour” of public officials met the test. Yet, it is more difficult to square this as a legitimate aim alongside international human rights standards, and particularly when the African Court later refers to public officials needing to accept a higher level of attention and criticism, given their position. How the legitimate aim of preserving honour and the need for public officials to accept that their position comes with a certain level of unrestricted criticism requires further examination in future cases. At the very least, it seems the Konaté judgement’s position indicates a low hurdle for the “legitimate purpose” limb in future cases.

 

As to the “necessary and proportional” test, it should first be noted that it is in this final limb the African Court found violations in both cases. Here, context remains key in assessing whether any restriction is necessary and proportional. It is certainly useful that the African Court set out what types of restrictions would comply with this test. Perhaps of even more assistance is the African Court’s development of the ‘thick skin’ approach to criticism and comments regarding public figures. Naturally, it is leaders and public figures who garner the greatest level of attention and criticism. This is a necessary part of public life and it is encouraging to see the African Court recognise as such. It may not be comfortable nor appealing for those in such positions, but the African Court made clear that it is reasonable in a democratic society to expect a level of comment and debate, and that the use of laws to restrict these opinions is in violation of international human rights standards.

 

It is also encouraging to see the African Court spell out that disagreeable content alone is enough to validate a restriction – an important standard that is vital to establish at this early stage of the African Court’s jurisprudence. Alongside this, the African Court has made clear that even societies emerging from the most terrible atrocities such as the Rwandan Genocide, do not give governments carte blanche to restrict expression. These statements are particularly important moving forward as the African Court will inevitably consider new freedom of expression cases. The balance is a fine one, but is one that that cannot be properly done without strict adherence to international human rights standards – something that Member States across Africa must prioritise in the coming years.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

International Treaties and Conventions

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entry into force 21 October 1986)

American Convention on Human Rights (adopted 22 November 1969, entry into force 18 July 1978)

European Convention on Human Rights (adopted 4 November 1950, entry into force 3 September 1953)

International Covenant on Civil and Political Rights (adopted 16 December 1966, entry into force 23 March 1976)

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987)

Universal Declaration of Human Rights (entry into force 10 December 1948).

 

International Cases and Communications

Lohé Issa Konaté v Burkina Faso App no 004/2013 (ACtHPR, 5 December 2014)

Ingabire Victoire Umuhoza v Republic of Rwanda App no 003/2014 (ACtHPR, 24 November 2017)

Keun-Tae Kim v The Republic of Korea, UNHRC Communication no 574/1994 (4 January 1995) [25]

Kenneth Good v The Republic of Botswana ACHPR Communication no 313.15 [188]

Malawi African Association and Others v Mauritania Communication no 54/91-61/91-98/93-164/97-196/97-210/98 [102].

 



[1] See for example, Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Conventions on Human Rights and Article 9 of the African Charter on Human and Peoples’ Rights.

[2] See for example, the United Nations Convention Against Torture, Article 2.2 “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

[3] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (hereinafter ICCPR). Article 19 (1) states “Everyone shall have the right to hold opinions without interference” and Article 19 (2) “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

[4] African Charter on Human and Peoples’ Rights (Adopted 27 June 1981, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 (hereinafter African Charter). Article (2) states “Every individual shall have the right to express and disseminate his opinions within the law.” Similar freedom of expression rights can be found in other regional human rights instruments. See Article 10 of the European Convention on Human Rights “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

See also Article 13 of the American Convention on Human Rights:

1.    Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.

2.    The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a.    respect for the rights or reputations of others; or

b.    the protection of national security, public order, or public health or morals.

3.    The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

[5] Article 19 (3) of the ICCPR states 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 9 of the African Charter statesEvery individual shall have the right to express and disseminate his opinions within the law” (emphasis added).

[6] Lohé Issa Konaté v Burkina Faso App no 004/2013 (ACtHPR, 5 December 2014) (hereinafter ‘Konaté Judgement’); Ingabire Victoire Umuhoza v Republic of Rwanda App no 003/2014 (ACtHPR, 24 November 2017) (hereinafter ‘Ingabire Judgement’).

[7] At the time of writing the full judgement in the FAJ et al. v Gambia case was yet to be handed down. A summary of the judgement can be found on the ECOWAS Court of Justice website at http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=410:ecowas-court-awards-six-million-dalasis-against-the-gambia-for-incaceration-and-torture-of-journalists. As to the reliance on African Court judgements on freedom of expression, see Media Defence Legal Initiative, an NGO acting in the case website https://www.mediadefence.org/news/ecowas-court-delivers-landmark-decision-one-our-strategic-cases-challenging-laws-used-silence.

[8] Konaté Judgement, para. 36. Article XX of the African Court Protocol gives the African Court jurisdiction to consider alleged violations of the African Charter and any other international human rights instrument to which the member state subject to the challenge has ratified.

[9] Konaté Judgement, para. 36.

[10] Konaté Judgement, paras. 1, 8.

[11] Konaté Judgement, paras. 3, 4.

[12] Konaté Judgement, paras. 5, 6.

[13] Konaté Judgement, paras. 7, 9

[14] Ingabire Judgement, para. 5.

[15] Ingabire Judgement, para. 6.

[16] Ingabire Judgement, paras. 6, 10.

[17] Ingabire Judgement, para. 134.

[18] Ingabire Judgement, para. 8.

[19] Ingabire Judgement, para. 8.

[20] Ingabire Judgement, para. 23.

[21] Ingabire Judgement, para. 23.

[22] Ingabire Judgement, para. 32.

[23] It should be noted that Rwanda withdrew its Article 34(6) Additional Declaration during these proceedings. Whilst it is not the focus of this paper to examine this decision, details of Rwanda’s withdrawal and the African Court’s subsequent decision are found in paras. 41-45 of the Ingabire Judgement.

[24] See for example Ingabire Judgement, para. 133.

[25] Konaté Judgement, para. 9; Ingabire Judgement, para. 134.

[26] Ingabire Judgement, paras. 139-141.

[27] Konaté Judgement, para. 136.

[28] Konaté Judgement, para. 128 referring to Keun-Tae Kim v The Republic of Korea, UNHRC Communication no 574/1994 (4 January 1995) [25] which states “[…] to be considered as “law”, norms have to be drafted with sufficient clarity to enable an individual to adapt his behaviour to the rules and made accessible to the public. The law cannot give persons who are in charge of its application unlimited powers of decision on the restriction of freedom of expression. Laws must contain rules which are sufficiently precise to allow persons in charge of their application to know what forms of expression are legitimately restricted and what forms of expression are unduly restricted.”

[29] Konaté Judgement, para. 129 referring to Kenneth Good v The Republic of Botswana ACHPR Communication no 313.15 [188].

[30] Konaté Judgement, para. 129 referring to Malawi African Association and Others v Mauritania Communication no 54/91-61/91-98/93-164/97-196/97-210/98 [102]

[31] Konaté Judgement, paras. 130-131.

[32] Ingabire Judgement, para. 135.

[33] Ingabire Judgement, paras. 133, 135.

[34] Ingabire Judgement, para. 135.

[35] Ingabire Judgement, para. 136 referring to Konaté Judgement, para. 129.

[36] Ingabire Judgement, para. 136.

[37] Ingabire Judgement, paras. 137-138.

[38] Konaté Judgement, para. 133.

[39] Konaté Judgement, para. 134. Article 27 (2) of the African Charter states: “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”

[40] Konaté Judgement, para. 135.

[41] Konaté Judgement, para. 136.

[42] Konaté Judgement, para. 137.

[43] Ingabire Judgement, paras. 139-141.

[44] Ingabire Judgement, paras. 141, 147.

[45] Konaté Judgement, para. 145.

[46] Konaté Judgement, para. 145.

[47] Konaté Judgement, paras. 146-154.

[48] Konaté Judgement, para. 165.

[49] Konaté Judgement, para. 155.

[50] Konaté Judgement, para. 156.

[51] Konaté Judgement, paras. 158-161 referring to the European Court on Human Rights, the Inter-American Court on Human Rights and the UN Human Rights Committee.

[52] Konaté Judgement, paras. 163-164.

[53] Konaté Judgement, para. 164. It is notable that the African Court also stated that lesser criminal sanctions such as fines are also subject to the necessity and proportionality test and may be in violation of the African Charter and other international human rights instruments. Ibid, para. 166.

[54] Ingabire Judgement, paras. 142, 144.

[55] Ingabire Judgement, para. 160.

[56] Ingabire Judgement, paras. 158-159.

[57] Ingabire Judgement, para. 142.

[58] Ingabire Judgement, para. 143.

[59] Ingabire Judgement, para. 148.

[60] Ingabire Judgement, para. 161.

[61] Ingabire Judgement, para. 162.

[62] Ingabire Judgement, para. 162.

[63] Ingabire Judgement, para. 163.