On the 28th March 2014, the African Court on Human and People's Rights issued its judgment

on the matter of beneficiaries of late Norbert Songo, Abdoujula Nikima alias Ablaze, Ernest

Songo and Blaise Ibodoku and Burkinabe Human and People's Rights Movement versus Burkina

Faso. Why is the case important? The case is of particular importance for delineating

the relevance of the freedom of expression for democracy. The decision is concerned with

a possible chilling or intimidating effect on the media due to the ineffectiveness of

the domestic justice system. It further highlights the state's responsibilities and the effectiveness

of the court's complaint system.

Principle facts of the case. On December 13, 1998, Norbert Songo, an investigating journalist

of the magazine, lay independent and his companions were murdered in the south of Burkina Faso.

Of relevance are possible connections of the murder to the investigations of Norbert Songo

on various political, economic and social scandals in Burkina Faso. The applicant challenged

Burkina Faso's failure to seek out, prosecute and place on trial those responsible for the

murder of Norbert Songo.

The court's finding. The decision centers around alleged violations of Article 9 of the

African Charter on Human and People's Rights and Article 66-2c of the revised ECOWAS Treaty.

While Article 66-2c of the revised ECOWAS Treaty seeks to urge Member States to ensure

respect for the rights of journalists, Article 9 of the African Charter on Human and People's

Rights stipulates the freedom of expression in general. In this regard, the court stresses

the connection of both provisions.

In the applicant's opinion, Burkina Faso patently and repeatedly chose to frustrate

the efforts of the families of Norbert Songo and his companions at ensuring that those

responsible for the deaths account for their actions. In the opinion of the court, Burkina

Faso did indeed fail to identify and apprehend Norbert Songo's assassins. The court held

that the State's omission could potentially cause fear and anxiety in media circles. Nonetheless,

the court does not find at the regulation of the provision in questions. That is, however,

only due to a lack of evidence.

In the judgment's operative part, the court finds, by majority of 5 to 4, that the respondent

State has violated Article 9-2 of the African Charter on People and Human Rights, read together

with Article 66-2c of the revised ECOWAS Treaty.

The court contends itself with the finding. The crucial question, whether Burkina Faso

failed to comply with its positive obligation to, in a wider sense, protect the media, or

whether such an obligation, under the aforementioned provisions, does even exist on the first place,

remain unanswered. As a matter of fact, even in their joint declaration, the dissenting

judges concur in the court's opinion, admitting that the failure by Burkina Faso could have

generated a certain degree of fear and anxiety within the media profession in general. They

were only unsatisfied regarding evidence of the possible intimidating effect of a behavior

by a respondent State, which would be contrary to its international obligations.

In essence, the court's majority, as well as the dissenting judges, arguably, seem to

agree on the existence of a positive obligation to protect the media.

Unfortunately, the court did not take this case as an opportunity to clearly delineate

the Member States' possible obligation, Article 66-2c of the revised ECOWAS Treaty and Article

9 of the African Charter on Human and People's Rights, concerning the protection of the media

and the freedom of expression. Due to its heavy reliance on the lack of evidence, the

court's contention on these very critical questions remains ambiguous.