Many readers will be aware of the Angolan journalist Rafael Marques de Morais who faces criminal defamation charges in Angola for publishing the book Blood Diamonds: Corruption and Torture in Angola in which he alleges high levels of corruption in the diamond mining business. Rafael Marques de Morais plight has prompted me to write this post examining how the recent Konaté judgement may help those facing trial for criminal defamation in Africa.
At the outset it should be noted that I have no involvement in Rafael Marques de Morais’s case, so I base my knowledge on the information publicly available through the usual channels. I cannot comment on Angolan legal procedure or the strength of evidence. This post limits itself to the question of how a judgement of the African Court on Human and Peoples Rights that finds one state parties’ legislation, in this criminal defamation, contrary to the African Charter can be used within the African human rights system by a citizen from a different state party who faces similar charges.
To recap, in Konaté v Burkina Faso the Court considered the case of Issa Lohé Konaté, the editor of the Burkina Faso based weekly L’Ouragan, who was arrested, tried and convicted of defaming a local state prosecutor. Finding unanimously in favour of Konaté, the Court ruled that Burkina Faso had violated Article 9 of the Charter, Article 19 of the International Covenant on Civil and Political Rights and Article 66(2)(c) of the ECOWAS Treaty, all relating to freedom of expression. The Court did not find violation of the Charter, ICCPR or ECOWAS Treaty for the imposition of custodial sentences for criminal defamation per se but was critical of the use of custodial sentences out of proportion to an offence and suggested such sentences could violate Charter rights. The Court ordered Burkina Faso to amend its legislation in order to comply with the above articles and to report back to the Court within two years.
Given that, as I understand it, Rafael Marques de Morais faces similar criminal defamation charges what use is the Konaté case?
Firstly, does the Konaté judgement bind Angola? If it does then Angola would be required to remove or at least substantially alter its criminal defamation legislation to comply with the judgement and therefore lessen or possibly remove Rafael Marques de Morais’s charges of criminal defamation. Article 30 of the Court’s Protocol which deals with execution of judgements states:
The States Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.
Rule 61 (5) of the Rules of the Court states:
The Judgment of the Court shall be binding on the parties
Angola has not signed the Court Protocol, therefore it does not pass the first test of being a “state party to the present protocol” as required under Article 30 of the Protocol. Even in the event that it was, on a plain reading of Article 30 and Rule 61(5) only parties in the case shall be bound by the judgement of the Court. Therefore, Burkina Faso is bound by the Konaté judgement but no other state parties are bound.
However, even though Angola is not bound by the Konaté judgement it still remains a powerful tool. First, domestically I would suggest the precedent set by Konaté provides a strong foundation for a challenge to the existence of criminal defamation laws on the statute books, given Angola is a party to the African Charter. As I note above, I have no knowledge of the Angolan legal system so cannot comment further on how this challenge would best proceed, apart from the obvious that since Konaté makes it clear that criminal defamation laws violate freedom of expression rights, any domestic court would need to get creative in distancing itself from its obvious application domestically.
The Konaté judgment may be even more powerful at the continental level. As mentioned above, since Angola has not signed the Court Protocol the Court does not enjoy jurisdiction to hear cases relating to Angola. Angola is however a signatory to the African Charter on Human and Peoples’ Rights. Anyone may bring a complaint to the attention of the African Commission on Human and Peoples’ Rights alleging that a signatory to the African Charter has violated one or more of the rights contained therein, therefore opening the way for an application by any Angolan citizen to the Commission.
The question then is what weight or influence does a Court judgement have on the Commission? The Rules of the Commission and the Court make it plain that the two bodies are to complement each other, for example Rule 114 of the Commission Rules. Certainly the Court uses Commission decisions as jurisprudence in assessing its cases, for example the Mtikila judgement was littered with references to Commission decisions. I would therefore suggest that in the reverse the Commission would take the Konaté judgement as a strong precedent to potentially find Angola in violation of Charter rights for the use of criminal defamation charges to quash freedom of expression. Taking this a step further, the Commission has the power under Rule 118(4) of the Commission Rules to seize the Court at any stage of a case. Such a referral may well cause a jurisdictional headache since Angola has not signed the Court Protocol, but if the Commission could be persuaded to refer the case to the Court, the Court would then be seized of a matter which it had already made findings in a similar case.
In conclusion, obviously the best result for Rafael Marques de Morais is that the charges are dropped or he is acquitted at trial before the need to take matters further. If the case does progress though, does the Konaté judgment come to the rescue? As is often the case the answer is yes and no. On my reading of the relevant instruments the judgement is not binding on Angola. Domestically, it may well provide a strong foundation for a challenge. On the continental level, Angolans are barred from bringing cases to the Court but are able to bring complaints to the Commission. At the Commission level I suggest the Konaté judgment would be a strong precedent and would be considered favorably.
You can follow Rafael Marques de Morais on twitter here. For more on the story see the Guardian piece here.