The case Lua Isaacunate vs. Burkina Faso was decided by the African Court on Human and

People's Rights on March 27th in 1996.

Why is the case important?

This case was the first decision of the African Court on Human and People's Rights concerning

freedom of expression and can therefore be called a landmark decision.

Moreover, the Court firstly defined the limits of freedom of expression and introduced a

method on how to control the legitimacy of interferences with freedom of expression.

By also considering international non-African Union instruments, the Court for the first

time laid out the range of freedom of expression and precisely defined the requirements for

any limitation.

Principle Facts

An editor and manager of a small newspaper named D'Oragon, the Hurricane, located in

Burkina Faso, published three articles, two of them being written by himself, where he

accused the State Prosecutor of Burkina Faso to have been involved in counterfeiting and

illegal trade of used cars.

As a reaction, the State Prosecutor accused him of defamation, public insult and contempt

of court which was affirmed by the Ouagadougou High Court and the Ouagadougou Court of Appeal.

As a result, he was sentenced to one year of imprisonment.

He had to pay a fine, an additional fine, to the State Prosecutor as well as the court

costs.

Moreover, l'Oragon was not allowed to be published for six months and, besides that,

the judgment had to be published in three newspapers at the cost of the applicant.

Subsequently to the six months period, the judgment would also need to be published in

l'Oragon for four months.

The applicant claimed before the African Court on Human and People's Rights that these

state measures violated his freedom of expression.

The Court's Finding

The Court unanimously affirmed this allegation regarding both the excessive sentence as well

the underlying Burkina Faso law itself and granted the applicant compensation in a second

trial.

In its judgment, the Court first ruled on the alleged violations of freedom of expression

by Burkina Faso laws and second on those by the courts.

The Court therefore applied a three-step analysis to consider whether the crucial laws met the

requirements for restrictions of the right to freedom of expression.

First, the language of the domestic law must be clear enough that parties can easily conform

to it.

Second, the restriction must serve a legitimate purpose.

Third, the limitation in the law needs to be necessary to achieve that purpose.

Following the first requirement, the Court referred to the UN Human Rights Committee's

definition of the concept of law.

It stated that the phrase within the law in Article 9 of the Charter must be interpreted

in reference to international norms which can provide grounds of limitation on freedom

of expression.

Second, the Court opined that the only legitimate reason to impose limitations to the freedom

of expression are stipulated in Article 27, subsection 2 of the Charter, which provides

that rights shall be exercised in respect of the rights of others, collective security,

morality and common interests.

The laws consequently met the first two requirements, yet the third question became decisive.

Was the limitation imposed necessary to achieve the objective?

In this regard, the Court illustrated the range of the freedom of expression and related