How legal frameworks on disinformation help suppression in Burkina Faso and Guinea

Author: Simone Toussi
Digital Rights Researcher, Africa Region

Disinformation, also known as, “all forms of false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit”, ^[1] is on the rise in Africa, aided by the evolving digital communication platforms. To counter disinformation, several African governments are using provisions in existing laws or enacting new laws that do not comply with international human rights standards^[2] on freedom of expression and access to information. As of August 2022, no country in Francophone Africa^[3] has enacted legislation specifically on disinformation, but the majority have provisions regulating disinformation in various laws.^[4]

Burkina Faso and Guinea are two Francophone West African countries that experienced coups in January and September 2022, and September 2021 respectively, leading to the removal of incumbent presidents. These stressful political situations, coupled with the Covid-19 pandemic and battles against terrorism have fuelled the flow of information disorder[5] and hateful conspiracy theories online and offline. Both countries have ratified the International Covenant on Civil and Political Rights,^[6] article 19(3) of which states that limitations of freedom of expression shall be “provided by law and are necessary for respect of the rights or reputations of others; for the protection of national security or of public order (ordre public), or of public health or morals.”  However, in these countries, some legal provisions and government actions against disinformation do not meet the above test for justifiable limitations on freedom of expression. This article explores recent instances of false news in both countries and government response to disinformation. It then dives into the regulatory framework on disinformation in Burkina Faso and Guinea, and provides critical analysis of shortcomings in each framework and recommendations for improvement.

In Burkina Faso, an old image from the 2014 insurrection showing a chaotic scene of Burkinabe protesters clashing with military officials was recirculated under a false context during the January 2022 coup.[7] It generated 118 000 views on Facebook. Similarly, social media posts and other online reports falsely claimed that General Gilbert Diendéré had been released from military prison. He was on trial for the murder of Thomas Sankara and convicted for the 2015 coup attempt.^[8]

In Guinea, an old video conference between former President Alpha Conde and one of his ministers in 2020 was used in a photomontage posted on Facebook in 2021 to show the overthrown president following, on a computer, the live swearing-in ceremony of Mamadou Doumbouya, the leader who ousted him from power. In the same vein, the leader of the opposition party Union des forces démocratiques de Guinée (UFDG), Cellou Dalein Diallo, was requested to publish a denial on social networks regarding rumours about his arrest by the coup plotters on 5 September 2021.^[9]

These are a few examples of the proliferation of false news that has not only fuelled political crises by increasing social destabilisation following coups, but also led to a tightening of state measures against disinformation. Governments have stepped up the pressure through public statements condemning expression in various ways, including false news. In a statement issued on 2 August 2022, Burkina Faso’s Minister of Communication, Valérie Kaboré, denied a report that the Burkinabe border with Mali had been closed, taking the opportunity to “warn those responsible for producing false news and reserving the right to treat them following the rigour of the law”.^[10] In July 2018, the Prosecutor General of Conakry Mamady Diawara warned conveyers of “false information, texts, videos reflecting extreme violence in reporting the death of trade unionists      who protested against the military”,^[11] citing articles 31, 32, and 35 of law 037/2016 on cyber security and personal data protection in Guinea.^[12] These threats are based on laws deemed suppressive because of their propensity to limit speech through imprecise, incomplete, and unclear provisions, and have potentially disproportionate sanctions.^[13]

In fact, paragraph  25 of General Comment 34^[14] of the Human Rights Committee specifies that “a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly [and] may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.” However, legal provisions on expression in Burkina Faso and Guinea do not always meet these principles and yet, are being used.

In Burkina Faso, article 312-13 of the Penal Code[15] punishes with a fine of up to 10 000 000 FCFA (approximately USD 15 203) and up to five years of imprisonment, the intentional propagation of false information which is likely to make others believe that the destruction of property or an attack against persons has already occurred or is likely to take place. In the absence of a definition for ‘false information’ in the legislation, the provisions lack clarity and may result in the imposition of disproportionate penalties. This is all the more as laws on the Legal Regime of the Online Press and the Legal Regime of Audio-visual Communication in Burkina Faso refer to the Penal Code for sanctions on the dissemination of false news, which as indicated above, may be disproportionate.

In addition, the term ‘likely’ gives wide discretional powers to law enforcement actors to interpret the provision. Article 86 of Law 058-2015/CNT on the Legal Regime of the Online Press in Burkina Faso[16] prohibits “publication or reproduction, through the online press, of false news, fabricated, falsified or misleading documents, likely to undermine public peace”. Similarly, article 130 of Law No. 059-2015 on the Legal Regime of Audio-visual Communication in Burkina Faso prohibits the “dissemination or reproduction of false, fabricated, falsified or misleading news, likely to undermine public peace”. These provisions are vague and may lead to arbitrary arrests and prosecution as they fail to define the nature of ‘false news, fabricated, falsified or misleading documents’. It also fails to elaborate on the meaning and scope of the term ‘public peace’ to the extent that it would be considered as a legitimate aim.

In June 2021, the Law No. 059-2015 on Audiovisual Communication[17] was utilized by the Burkinabe Superior Council of Communication (CSC) to suspend the Omega Media Group’s radio and TV programmes for five days, permitting them only to broadcast music.^[18] The Omega Group had previously mistakenly broadcast news via their radio and television channels, social media and website, about terrorist attacks perpetrated on the night of June 4 to 5 2021 in a village in the province of Yagha. Before the suspension, the Omega Group had already admitted to errors in their news coverage of the incident and taken steps to correct the false information. Civil society therefore considered the suspension unjustified, and also noted that suspension was not a penalty under Law No. 059-2015.

In Guinea, article 875 of the Penal Code[19] broadly criminalises the publication of ‘false news’ through electronic means, including the dissemination of all false news where the person “is unable to prove its veracity”. Article 519 also criminalises the communication of false information with the intention of causing the public to believe in the existence of a dangerous or destructive situation. The law does not provide clear criteria for determining what information is considered false, nor defines the phrases “public peace” or a “dangerous situation”, thus leaving a wide discretional power to enforcement officers. Violation of article 875 is punishable by up to two years imprisonment and/or a fine of up to 100 000 000 GNF (USD 11 527). This penalty is doubled when committed with the aim of undermining public peace. Violation of article 519 is punishable by up to one year of imprisonment and/or a fine of up to 5 000 000 GNF (USD 575).

Furthermore, article 106 of the Organic Law L/2010/02/CNT of 22 June 2010 on the Freedom of the Press in Guinea[20] prohibits any communication, by whatever means, of “fake news, fabricated or falsified material or material falsely attributed to third parties”, made in bad faith and likely to “disturb public order” or “undermine the discipline or morale of the armed forces or hinder the Nation’s war effort”. While ‘public order’ is a legitimate purpose for restricting speech, terms such as ‘fake news, fabricated or falsified material’ remain unclear. Additionally, phrases like the ‘morale of the armed forces’ or ‘the war effort of the Nation’ are not specifically linked to ‘national security’, which is also a legitimate aim, and that make this provision too broad to satisfy the requirements for permissible restrictions on freedom of expression.

In the same vein, article 35 of the Cybersecurity and Data Protection Act, 2016[21] criminalises the dissemination of false information that suggests that the destruction of property or an attack against persons has already taken place, or is likely to take place. It also prohibits false information about any other emergency situation, when it fails to define the “falsity” of the information. Its violation can result in a fine of up to 100 000 000 GNF (USD 11 497) and imprisonment of up to three years.

The fact that these provisions are scattered in different legislation leads to confusion because they have both similarities and differences, as do the related sanctions, which can be challenging as regards to their applicability. In fact, different sanctions could be applied for similar offences in different cases. Despite all these provisions, people are charged without a particular law being cited. For example, activist and human rights defender Oumar Sylla was sentenced by Conakry’s Court of Appeal to three years imprisonment for “communication and dissemination of false information, violence and threat of death” on 10 June 2021, without reference to a specific law.^[22]

In conclusion, as much as disinformation clearly affects access to accurate and reliable information, vague laws are a threat to freedom of expression. Such vague laws can be used to enable state repression and tend to worsen the existing political climate, which leaves doubts about a peaceful transition in Burkina Faso and Guinea. Given the political, security and social instability in Burkina Faso and Guinea, there is a fertile ground for the spread of false news that has led to increased restrictions on expression by governments. The existence of laws that lack precision and clarity and could be used against journalists, activists or any other critical voices, is a threat to democratic participation. With the impending presidential elections in the two countries – July 2024 in Burkina Faso[23] and January 2025 in Guinea[24], it is urgent to adopt clear disinformation policies with laws that meet international human rights standards. The transitional periods are opportunities for Burkina Faso and Guinea to revise or repeal controversial existing provisions on disinformation, in order to ensure a rights-respecting legal framework for all democratic actors.

^[1] European Commission, High Level Expert Group on Fake News and Online Disinformation Report, 2018 at p 3.

^[2] Especially Article 19(3) of the International Covenant on Human and People’s Rights (ICHPR)

^[3] As such, countries that have adopted French as an official language (Benin, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d’Ivoire, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Gabon, Guinea, Madagascar, Mali, Mauritania, Niger, Rwanda, Senegal, Seychelles  & Togo, https://bit.ly/3DUWhhE  (accessed 11 November 2022).

^[4] Laws on Expression Online: Tracker and Analysis – LEXOTA, https://lexota.org (accessed 11 November 2022).

[5] C Wardle & H Derakhshan  “INFORMATION DISORDER: Toward an interdisciplinary framework for research and policy making”, Council of Europe, Strasbourg Cedex.

^[6] Respectively on 24 Jan 1978 (Guinea) & 04 Jan 1999 (Burkina Faso), https://bit.ly/3C3uysO (accessed 11 November 2022).

[7] N Morrisson “Désinformation : les fausses nouvelles se répandent en ligne sur fond de coup d’État au Burkina Faso” BBC News (Afrique) 2 February 2022 https://bbc.in/3AmGoNQ (accessed 11 November 2022).

^[8] As above.

^[9] S Bilaly Sow & S D Badji, ‘Guinea’s fake news ecosystem’ February 2022  https://bit.ly/3cfVnBi (accessed 11 November 2022).

^[10] Ministère de la Communication, de la Culture et des Arts du Burkina Faso ‘Communiqué’ https://bit.ly/3QU5omK (accessed 11 November 2022).

^[11] A Bah ‘Fake news sur les réseaux sociaux et sur des sites web : le Parquet Général menace…’ 30 July 2018 https://bit.ly/3BCtFqQ (accessed 11 November 2022).

^[12] Loi L/2016/037/AN du 28 Juillet 2016, Relative à la Cybersécurité et la Protection des Données à Caractère Personnel en République de Guinée, https://bit.ly/3UJ7vMu (accessed 11 November 2022).

^[13] Legal analysis in “Laws on Expression Online: Tracker and Analysis – LEXOTA” also relies on article 19 of the ICCPR.

^[14] United Nations Human Rights Committee International Covenant on Civil and Political Rights General comment No. 34 (CCPR/C/GC/34) 12 September 2011 https://bit.ly/2Qe9G9A  (accessed 11 November 2022).

[15] Burkina Faso National Assembly, Law n°044-2019/an amending the Law n°025-2018/an of 31 May 2018 on the Penal Code https://bit.ly/3G88zVd (accessed 11 November 2022).

[16] Loi N°058-2015/CNT portant Régime Juridique de la Presse en Ligne au Burkina Faso, https://bit.ly/3A4CsSk (accessed 11 November 2022).

[17] Loi N°059-2015/CNT portant Régime Juridique de la Radiodiffusion Sonore et Télévisuelle au Burkina Faso, https://bit.ly/3A5wiBD (accessed 11 November 2022).

^[18] Décision No 2021-017/CSC portant Suspension des médias du groupe OMEGA pour diffusion de fausses informations, https://bit.ly/3C2BMhO (accessed 11 November 2022).

[19] Ministry of Justice, Guinea. New Penal Code, February 2016, https://bit.ly/3A76GUP  (accessed 11 November 2022).

[20] Loi organique L/2010/02/CNT du 22 Juin 2010 Portant sur la Liberté de la Presse, https://bit.ly/3A6sRuq (accessed 11 November 2022).

[21] Loi L/2016/037/AN du 28 Juillet 2016, Relative à la Cybersécurité et la Protection des Données à Caractère Personnel en République de Guinée, https://bit.ly/3G8wYtU (accessed 11 November 2022).

^[22] Guinea: Activist Sentenced to 3 Years Imprisonment, https://bit.ly/3y7zOKz (accessed 11 November 2022).

[23] C Bako, 21 mois de transition au Burkina Faso dans un contexte sécuritaire fragile, https://bit.ly/3UJ7FTL (accessed 11 November 2022).

[24] Guinée : la junte accepte de rendre le pouvoir aux civils dans deux ans, 20 October 2022, https://bit.ly/3EpYbXM  (accessed 11 November 2022).

About the Author:

Simone Toussi works as Project Officer for Francophone Africa at the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), interested in the intersection of policy, digital technology, democracy and human rights. Her work involves research, community engagement and advocacy on African digital policies as they interfere with human rights and democratic processes. These include but are not limited to privacy laws and policies, surveillance’s regulations, as well as government’s mechanisms to tackle disinformation in Africa. She is also a strategic communication’s specialist, consultant and trainer with experience in international organizations, NGOs and the private sector. She holds a Masters in Development Studies from Senghor University in Alexandria, and a Masters in Semiotics and Strategies from the University of Yaounde 1.