Case Summary and Outcome

The African Court on Human and Peoples’ Rights held that Benin’s Criminal Code violated the right to freedom of expression, as enshrined in Article 9(2) of the African Charter on Human and Peoples’ Rights (the Charter), because it restricted the possibility of commenting and critiquing judicial decisions only to specialized journals without a legitimate aim. Mr. Houngue Éric Noudehouenou, the applicant, claimed that this limitation to the right to criticize courts’ decisions —approved by the Government and the Constitutional Court of Benin— violated Article 9 of the Charter. The Respondent State did not submit any allegations. The Court ruled that the restrictions provided for in the Criminal Code were vague and that there was “no compelling need to restrict citizens to certain means of communication thereby depriving them of having recourse to others which are available to them to make technical comments on court decisions and thus to exercise their right to freedom of expression.” [para. 112] The Court ordered Benin to bring the Criminal Code in line with Article 9 of the Charter and awarded the plaintiff reparation for moral damages.

Facts

Mr. Houngue Éric Noudehouenou is a politician and a national of Benin. During 2018 and 2019, the government of this country passed several laws amending the status of the judiciary, the Electoral Code, the Criminal Code, and the National Constitution. The Constitutional Court of Benin declared these amendments to be consistent with the country’s Constitution.

On September 2020, Noudehouenou filed an application before the African Court on Human and Peoples’ Rights challenging these laws enacted recently by the government. Regarding freedom of expression, the plaintiff contested Article 410(1)(3) of Benin’s Criminal Code, which states: “Any person who, by acts, speech or writings, publicly seeks to discredit a judicial act or decision, under conditions likely to undermine the authority of the judiciary or its independence, shall be liable to one (1) month to six (06) months’ imprisonment and a fine of One Hundred Thousand (100,000) to One Million (1,000,000) CFA francs, or to one of these two penalties only. The foregoing provisions shall in no case be applied to purely technical comments in specialized journals, nor to acts, speech, or writings calling for the revision of a conviction.”

Furthermore, Noudehouenou challenged Law No. 2018-16 of 4 January 2018, pertaining to the status of the judiciary, which barred judges from going on strike, and Law No. 2019-43 of 15 November 2019 pertaining to the Electoral Code, which prohibits citizens who are not members of a political party from participating in elections.

The Respondent State did not file any response to the application. Pleadings were closed on 7 November 2022.

Decision Overview

The main issue regarding freedom of expression before the African Court on Human and Peoples’ Rights was whether Benin’s Criminal Code violated the right to freedom of expression, as laid out in Article 9 of the Charter, by restricting the possibility of commenting or criticizing judicial acts or decisions to specialized journals, establishing potential criminal sanctions against non-specialized persons who discredit judicial decisions or acts. The Court also had to deal with two other claims related to freedom of expression: the judge’s right to strike, and the right to vote. However, both were simply resolved through procedure-related arguments and not analyzed in depth by the tribunal.

The plaintiff alleged that Article 410(1)(3) of Benin’s Criminal Code violated the Charter’s right to freedom of expression because it unduly limited the right to criticize a court’s decision only to specialized journals or to acts, speech, or writings calling for the revision of a conviction. Noudehouenou also argued that the new law pertaining to the status of the judiciary, which barred judges from going on strike, violated their right to freedom of expression, among others, because it was arbitrary and did not respect a fair balance between fundamental individual rights and the general interest of the community. Finally, he claimed that the new Electoral Code compelled Beninese citizens to vote only for candidates chosen and nominated by political parties, violating their right to freedom of expression. Noudehouenou asked for pecuniary and non-pecuniary reparations (such as the modification of domestic legislation, and the publication of the decision on official websites).

The Respondent State did not submit any allegations.

As for the first claim, the Court recalled that freedom of expression was the foundation of any democratic society, but also that it must be exercised within the framework of the law. In this sense, it said that freedom of expression may be subject to restrictions as long as they are provided by law, pursue legitimate purposes and be necessary and proportionate. Legitimate purposes, the Court explained, include respect for the rights of others, national security, public order, morality, and the common good. Furthermore, the Court added that restrictions on freedom of expression must be clear, foreseeable, and consistent with the purpose of the African Charter and international human rights instruments, and they must apply to all persons.

Subsequently, the Court held that the restrictions provided for in the Criminal Code were vague and did not pursue a legitimate aim because there was “no compelling need to restrict citizens to certain means of communication thereby depriving them of having recourse to others which are available to them to make technical comments on court decisions and thus to exercise their right to freedom of expression.” [para. 112] The Court explained that “specialised journals are not the only means of communication for the dissemination of technical opinions on court decisions. These means of communication may also be the Internet, newspapers, radio or television broadcasts, or courses developed by teachers, etc.” [para. 111] The Court also considered that there were “no national security, public order or public morality considerations for such a restriction.” [para. 113] Consequently, the Court ruled that Benin violated Article 9(2) of the Charter.

As for the second claim, the Court highlighted that the law challenged by the plaintiff was repealed by Law No. 2018-33 of 5 October 2018, preserving judges’ right to strike. Thus, it ruled that “the allegations of violation of the judges’ right to strike and the violation of related rights made by the applicant are moot.” [para. 89]

Regarding the third claim, the Court recalled that it had already ruled in the cases Houngue Éric Noudehouenou v. Republic of Benin and XYZ v. Republic of Benin that the constitutional amendment of November 2019 violated Articles 9, 22, and 23 of the African Charter. In those judgements, the Court had already ordered its repeal as well as that of subsequent laws, including the Electoral Code of 15 November 2019. Hence, it considered it was unnecessary to rule on the violations that would result from the Electoral Code —regarding the criteria for candidacy, freedom of electoral expression, and freedom of religion—because it had already done it.

As for reparations, the Court ordered Benin “to take all measures to bring Article 410(3) of the Criminal Code in line with Article 9(2) of the Charter and Article 19 of the ICCPR which guarantee freedom of opinion and expression with regard to technical comments on judicial decisions.” [para. 185] The Applicant was awarded reparation for the moral damages he personally suffered in the amount of Five Million (5,000,000) CFA francs (approximately 8.200 USD). The Court also ordered the Respondent State to publish the operative part of the judgment.