(Sept. 20, 2019) On June 20, 2019, Burkina Faso’s Parliament amended the country’s Penal Code to introduce a series of new offenses that aim to fight terrorism and organized crime, fight the spread of “fake news,” and suppress efforts to “demoralize” the Burkinabe armed forces. Many journalists and NGOs have denounced the newly created offenses, particularly those that restrict the activities of the media, as serious infringements on freedom.
The new law, which was deemed to be consistent with the Burkinabe Constitution by the Constitutional Council (the high court tasked with evaluating the constitutionality of legislation), was signed by Burkina Faso’s President on July 31, 2019, and officially published on August 1.
Most of the new provisions are under Title I of Book III of the Penal Code of 2018, which deals with “Crimes and Minor Offenses against the Security of the State.” Article 312-13, ostensibly aimed at “fake news,” makes it a criminal offense to “intentionally communicate, divulge, publish, or relay, by any means, false information of a kind to suggest that a destruction of property or an attack against persons has been committed or will be committed.” Article 312-14 criminalizes the act of publishing information about the “movement, geographic position, weaponry, and strength” of Burkinabé security forces, and article 312-15 criminalizes the publication of “information, images, or sounds” of a kind to “compromise an operation or an intervention” of the security forces against acts of terrorism. Lastly, article 312-16 criminalizes the “unauthorized publication, by any means, of the images or sounds of the scene of a terrorist offense.” Each of these offences carries a prison sentence of between one and five years, as well as a maximum fine of 10 million CFA francs (about US$17,000).
Under Chapter 1, Title VI, Book III, of the Penal Code, which deals with “Offenses Involving Terrorism,” the new law introduces article 361-23, targeting those who “illicitly and deliberately” furnish, accumulate, or manage funds with the intention of using them to commit acts of terrorism. The penalty is a prison sentence of between five and ten years along with a fine of up to 10 million CFA francs.
Finally, in the section of the Code dealing with “Offenses against the Honor, Reputation, and Privacy of Persons,” the new law amends article 524-6 to sanction the act of publicly insulting persons through “speeches, yelling, or threats,” with two to six months of prison time and a fine of up to 1 million CFA francs (about US$1,700). The same article specifies that insults directed against deceased persons with the intent of tarnishing the “honor and reputation” of their spouses and heirs are also prohibited. The new law makes insults punishable by a sentence of up to five years’ imprisonment and a fine of 2 million CFA francs (about US$3,400) if they are made “via an electronic means of communication.”
These amendments to the Penal Code have given rise to concerns that they would muzzle the Burkinabé press. Numerous professional media organizations have condemned the law for the severity of the penalties it imposes and the vagueness of the offenses it creates. The law will “grant to the state much greater control over information,” according to the director of the West African Bureau of Reporters Without Borders, and will “introduce extremely grave restrictions on the freedom to inform in a country that, until now, was considered exemplary.” Amnesty International has also expressed its opposition to the new Penal Code, writing that articles 312-14 and 312-15 “jeopardize the legitimate exercise of the right to freedom of information protected by the Constitution of Burkina Faso and the African Charter on Human and Peoples’ Rights.”
Prepared by Henri Barbeau, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.