In the Run-Up to Elections, Court Declares Burundi’s Press Gag Law Undemocratic

The Press Law was enacted specifically to constrain independent media reporting around the elections.

On May 15, the East African Court of Justice ruled that large parts of Burundi’s Press Law, which was enacted in 2013 to restrict critical reporting in the run-up to the 2015 elections, violate fundamental principles of democracy and the rule of law.

This was the first time that this court, which oversees the entire East African Community of States (which comprises Kenya, Uganda, Burundi, Rwanda, and Tanzania) considered a press freedom case. The judgment marks a significant step forward for media freedom across the region, paves the way for stronger independent reporting in Burundi, and, perhaps more importantly, lays down a marker for press freedom and media regulation in other states in East Africa. 

The case was brought by the Burundi Journalists’ Union, represented by the Media Legal Defence Initiative, to challenge the regime of media regulation imposed under Burundi’s 2013 Press Law. The Press Law was enacted specifically to constrain independent media reporting around the elections and, at the time of enactment, received widespread criticism from journalists, human rights organizations, and the international community. UN Secretary General Ban Ki-moon expressed regret over the law, and press freedom and human rights organizations labelled it a grave threat to freedom of expression.

Of particular concern was that the Press Law would impose a compulsory accreditation regime for all journalists, that it would restrict what could be published in the media, and that it imposed severe penalties for violations of the law. The Burundi Journalists’ Union argued that this breached the right to freedom of expression and that this in turn constituted a violation of the Treaty Establishing the East African Community, of which Burundi is a member state and which requires compliance with general principles of democracy, the rule of law, good governance, and respect for human rights. A large coalition of media freedom organizations intervened in support of the Burundi Journalists’ Union’s case, including the Burundi Press House, the Pan-African Lawyers Union, the World Association of Newspapers, the Kenya PEN Centre, and the International Press Institute.

Through 2014 and 2015, the Press Law was indeed used to stifle reporting—and this has been accompanied by increasing violence and threats against the media. These intensified after the announcement that President Pierre Nkurunziza would run for a constitutionally controversial third term, which was followed by street protests and, on May 13, an attempted coup d’etat by General Godefroid Niyombare.

Amidst the turmoil, the president sought to control the news through the state media, and journalists reporting from an independent perspective were subjected to arbitrary arrests and death threats. A number have since fled the country. Following the failed coup, Burundi’s most popular radio station, Radio Publique Africaine, was burned down, and most other private radio stations have been taken off the air.

Against this background of violence, the court agreed that a number of provisions of the Press Law violated the right to press freedom, most notably restrictions on publishing “information on the stability of the currency,” “offensive articles or reports regarding public or private persons,” and “information that may harm the credit of the State and national economy.”

The court held that “a government should not determine what ideas or information should be in the market place” of ideas on these issues. Some other provisions were held to be justifiable, particularly in light of “the circumstances and history of the State of Burundi.”

The court ordered the Burundi government to implement the judgment “without delay.” As the country gears up for elections, reportedly to be held in early June, it cannot use the Press Law to ban reporting. This good news is tempered, however, by the fact that very few independent media are left in the country—for example, the chairman of the Burundi Journalists’ Union remains in hiding following death threats. 

But the judgment will have strong longer-term impact in the standard it sets across the East African Community of States. By establishing press freedom as among the guiding principles of the East African Community, the court has paved the way for journalists from other countries in the region to bring cases for violations of their rights.

The first such case has already been brought by the Human Rights Network for Journalists in Uganda, challenging Uganda’s criminal defamation laws. Judgment in this case is expected to be delivered in 2016.

The case also bolsters the position of international and regional human rights courts in Africa as a viable avenue for journalists to seek justice and to set standards for press freedom. In December 2014, in a case also brought by the Media Legal Defence Initiative, the African Court of Human Rights held that any imprisonment of journalists for criminal defamation violates the right to freedom of expression. And the Court of Justice for the West African Community of States has decided several press freedom cases over the past few years.

Given the eroding respect for journalists’ rights across the continent, this international avenue of justice for African journalists is very welcome indeed and provides a strong impetus for improving media freedom in Africa.   

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Good initiative, continue with the good job.

It scares me that the regional court's judiciary are silent on the matter...why did Burundi's courts not invalidate the press law based on public policy (external)? The focus must be on African state's policies... more laws across East Africa should be brought to the East African Court of Justice for review.

Most of the African countries soon will introduce the same law as a shield to the Leaders and their ruling parties in order for them to remain in power. Here in Tanzania a bill as been construted to limit the private medias, remember we are also going the general elections in october this year. You can't believe what kind of Leaders we have in Africa.They are only after their interest. they have to stop, we don't wars.

A wonderful and ground breaking judgement on media freedoms in this unsettled part of the continent. Hopefully, Burundi government will respect the court's judgement and it's international law/treaty obligations by implementing all the provisions of the judgement without further delays.

This is an excellent move and accomplishment. The challenge is how to reinforce the decision of the court in Burundi. For example, the person to be held responsible for the radio station that has been burnt and to ensure that no radio station is ever closed or any journalist arrested in Burundi because of different views from that of the leadership. The most absurd thing in many countries in Africa is the reality that most presidents (leadership) behave and act as they own the States. Countries are treated as personal properties. An issue to be addressed so citizens, including journalists and the professionals are not harassed as often is the case. In some countries as Ethiopia, civil society organizations are harassed on daily basis and with total silence from legal institutions, including one under the African union.Hence this is really a good example to be followed, but ways of implementing the decision must be discussed as it will be ignored.

The media/press in Africa has a great role to play as far as promoting sustainable peace and development is concerned. So is the judiciary. That is what the press/media should always do when the dictator attacks. The judiciary must wake up and play its role in democratising Africa. The judiciary let down Burundi on deciding that Nkurunziza should seek another term in office.

That's quite a good step towards creating democracy in east African region, the leaders though seem to be the architects of this autocracy, am skeptical of what is likely to happen in Uganda in the upcoming general elections. The story wont be different

We do really appreciate the initiative you have taken and wish you would extend it into other countries because now it has become a habit for the african presidents to change the constitutions in order to stay in power for many years.

Burundi is one of those countries where the situation remains critical and it will bribably be the same in Democratic Republic of Congo next year. This is why we solicit Open Society Foundations to focus such initiatives here too.

Great to see this case! More like it needed in other regions of the world as well. I'm wondering if you could also use relevant articles in the UNCAC as legal support for your legal argument? As you may know, Freedom of expression and the right to report on corruption are enshrined in the UNCAC, which virtually all countries have ratified.

The biggest problem we are facing in this continent of ours,is that most of our so-called leaders or presidents come to power through the back door,they themselves acknowledge the fact that they ridged the election and cheated on the people.In so doing,they assemble to form coalitions,in the name of"regional or international organizations,such as the one in East Africa,SADEC,etc,not to promote national development rather to protect themselves in the event such as the one which had happened in 'BURUNDI",so long as the person align himself or herself to that hideousness plan of operation will remain protected.That what keep the 'Mugabes,Museveni,Dos santos in power till now.As for countries like,Tanzania and Kenya,the same click continue to rule the country within the same umbrella bodies. Nkurunziza know what he is doing and the support he enjoys from among his friends.If nothing happened in Uganda,what will probably happen in BURUNDI?'BUSINESS AS USUAL".

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