Lohé Issa Konaté v. Burkina Faso

Lohé Issa Konaté alleged that his criminal conviction in Burkina Faso for libel was a violation of his right to freedom of expression, contrary to Article 9 of the African Charter on Human and Peoples’ Rights (“Charter”) and Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”).

At the High Court, Konaté was sentenced to 12 months imprisonment and fined 1,500,000 Francs (US$3,000). The Court of Appeal upheld his conviction.

Konaté applied to the African Court of Human and Peoples’ Rights, arguing that his term of imprisonment and the fine were a violation of his freedom of expression. In his application, he asked the court: (1) to declare the sentence a violation of his right to freedom of expression; (2) to declare the laws in Burkina Faso with regard to libel inconsistent with the right to freedom to expression;(3) to order Burkina Faso to pay him compensation for loss of income and damages resulting from moral hardship; and (4) as provisional measures, he asked to be released or, if that failed, to be provided with adequate medical care for the rest of his term of imprisonment.

The Court held that Konaté could not be released from prison but that he should receive the medical care he required in prison. The Court referred to Article 27(2) of the Protocol to the African Charter On Human and Peoples` Rights on the Establishment of an African Court on Human and Peoples` Rights (Protocol), which provides that in cases of “extreme gravity and urgency, and when necessary to avoid irreparable harm to persons,” the Court can adopt provisional measures. Konaté’s release from prison was not deemed urgent enough and would interfere with other aspects of the case.

With regards to provision of adequate medical care, the Court looked at the deterioration of Konaté’s health since his imprisonment and his subsequent need for medical attention. Because a lack of adequate medical care might cause irreparable harm to Konaté, the Court decided that he was entitled to access all the medical care that he needed. The Court ordered the State to provide the applicant with the medication and health care required, and to report to the Court within 15 days on the ways in which it had enforced the order.

The dissent argued that Konaté should be released from prison pending the determination of other aspects of his application. The dissenting judge argued that the release would not interfere with other aspects of the case, and that failure to grant Konaté this provisional measure would cause him irreparable harm. Additionally, releasing Konaté from prison would allow him to better address his medical needs.

“In the opinion of the Court, the situation in which the Applicant finds himself appears to be a situation that can cause irreparable harm. The Court is therefore of the opinion that the Applicant is entitled to access all medical care that his health condition requires.” Para. 22.