 I'm delighted to be able to introduce today Nani Janssen-Revenko, who is an international lawyer practicing generally out of London, but whom we are fortunate to have this year as a fellow at the Berkman Klein Center. In her practice, she's engaged with many organizations, but one of the things she does is lead the global media legal defense initiative. I may have gotten that name slightly wrong. In litigation for the defense of journalists, she has won some path-breaking cases in the African regional courts, which is the topic that she's going to be talking about today. The session that we're doing today is being recorded, and so I want you to know about that. She will be taking questions later in the talk, but please bear in mind that the talk is being recorded on the other side when you want to become or ask a question. Our thanks to the Berkman Klein Center, I guess, for bringing Nani Janssen-Revenko here, those in her post-conference talk, and to each of us, I think it's her post-conference talk. Without more, please join me in welcoming Nani Janssen-Revenko. Thank you very much. I hope my microphone is working as it should, yes. Thanks for having me here, and it's really wonderful to be speaking with you today about the work that I've done at the African regional courts. I was asked to also give a little bit of context of the systems that these courts operate in. However, I also want to make sure that I don't talk too long about things that I find interesting, and give you enough opportunity to ask questions. So I'll try to kind of stick to about 30 minutes or so, and then we can do a Q&A and perhaps dive into certain things in a little bit more detail. So the three courts that I will be looking at in the next few minutes are the African Court on Human and People's Rights, the East African Court of Justice, and the ECOWAS Community Court of Justice. And underneath, you will see the case names of the cases that I've worked on. The odd one out of these three is the Federation of African Journalists and others versus the Gambia because that case is still pending. We're awaiting a decision in that case early next year. So I'll give a little bit of background on the legal framework within which these courts function. I'll then tell you some things about the facts of the case, the strategy that we employed, and then of course what the outcome and impact of those cases has been. And at the end, everything you always wanted to know about litigating at the African Regional Courts, but we're afraid to ask. I have a little, I was very proud that I managed to insert a video in my PowerPoint, but unfortunately there is no peak time here. So I shall take you to YouTube because this video, which was produced by UNESCO, neatly summarizes the mandate of the African Court, which saves you from me listing its characteristics. So that about sums it up. So you saw the key points already just now. It's a court based at the African Court and Human Rights is based in Arusha, Tanzania and has the possibility of actually issuing binding decisions on the application and interpretation of the African Charter. But not only the African Charter, it is also ruled on violations of, for example, the ICPR and the ECOWAS Treaty. Then I will just kind of skip over this because we have, of course, it's not only dealing with press freedom cases, right? I mean, it has held on participation in elections and all sorts of other things, but the UNESCO video focuses on the safety of journalists. So I will focus on the case that you saw just featured in the video, the one that dealt with imprisonment for defamation. And that's the case that we argued with MDI before the African Court on Human and People's Rights. Mr. Konate is the owner and main contributor to a weekly newspaper called Louragan, which is French for the hurricane in Burkina Faso. And at some point in time he published three articles that were very critical of a local public prosecutor alleging that he might have been involved in corruption. The public prosecutor was very unhappy with this, filed a criminal complaint, and Mr. Konate was sentenced to a year imprisonment, payment of fines and damages amounting to about 18 times the average annual salary in Burkina Faso, and his newspaper was suspended for half a year. After this original, the initial judgment came down. We got involved in the case and supported the appeal, meaning that we basically financed the lawyers who were taking the case to the Court of Appeal, tried to also provide some legal advice, which was not really taken. And unfortunately, the initial conviction was upheld on appeal. And then contacted the lead lawyer on the case and said, like, listen, what do you want to do? You're in Burkina Faso, you can go to the Echo Wells Community Court of Justice, and you can go to the African Court. But show, let's go. The lawyer was like, well, you know, it will take too long. It's too complicated. I don't think so. Which I replied, well, maybe your client feels differently. So we found someone who visited Mr. Konate in prison and asked him what he wanted to do. And he then authorized me directly to represent him at the African Court, which is what we did. And this case was very sensitive in a way, because it was the first time that the African Court would get to deal with the issue of criminal defamation. As some of you may know, there's a campaign in various places in the world to decriminalize defamation. And in the African context, there's a very active campaign that is led by the African Commission Special Rapporteur on Freedom of Expression. So there were a bunch of people who were quite concerned that the Court might not rule the right way. We took the approach that we wanted to get the Court to understand that consensus internationally was that imprisonment for defamation was not an acceptable penalty. So we presented the Court with case law from its sister courts, from the European Court and the Inter-American Court, and also case law from the Commission, which while not binding us, of course, the one body that had been consistently working on interpreting what article 9, that's the article that protects the right to free speech in the African Charter, exactly meant as regards state obligations. So what we basically said to the courts, like listen, this is the baseline. You can't go underneath this. You have to at least say that imprisonment for defamation is not an acceptable penalty. But you can be the most progressive human rights court and actually be the first one to say that criminal defamation as such violates the right to free speech. It was worth a try. We almost got there actually. Four out of ten judges agreed with us on that point. And I think that also shows, like, what the potential is of the African Court as a progressive human rights court. When kind of formulating our pleadings, we looked at how the African Commission cited case law from other courts and treaty bodies. So we found there, for example, that the Commission, when it looks at other regional courts, would look at the Inter-American Court first and then at the U.N. Human Rights Committee and then at the European Court perhaps. So this is the same way that we kind of try to line up all of our arguments. So first going to the Commission, then Inter-American and then U.N. Human Rights Committee, European jurisprudence. We didn't want to go there particularly because, you know, coming as an organization from London, like, look, here's the framework that do everything fantastically, which we wanted to kind of like make sure that it fit with the framework that was already there. In the end, the courts, like I just mentioned, didn't go for the gold star, but they did hold that penalties for speech offenses had to be proportionate and that imprisonment was never an acceptable penalty. What was really interesting about the orders of the courts in the case was that besides ordering compensation to be paid to Mr. Quantay, which is something that we subsequently figured out in further filings and further proceedings, he was awarded the equivalent of about 70,000 U.S. dollars for loss of income and moral damages, which when compared with other case law on reparations from the regional courts isn't that bad, but as we within the team said, like, who would want to spend a year in the Burkina Bay prison for 70,000 dollars. However, besides the compensation, the reparation aspect, the courts also explicitly ordered Burkina Faso to change this legislation. And they did so in a great level of detail. They said that the courts ordered Burkina Faso to amend their legislation on defamation to make it compliant with Article 9 of the Charter, Article 19 of the ICCPR and Article 66, 2C of the ECHOWAS Treaty, by first repealing custodial sentences for acts of defamation, and second, by adapting its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality in obligation, sorry, in accordance with its obligations under the Charter and the ICCPR, which is very, very specific. International courts generally are a little bit reluctant in my experience to be this precise in actually ordering states to legislate differently on certain issues. The wonderful thing here is that Burkina Faso actually followed the court's orders. Last year, the press law was changed. Imprisonment was scrapped as a penalty for defamation, and all the fines that were imposed for speech offenses were lowered considerably. So that is really wonderful. The payment to Mr. Konate is in process, so we'll soon have full implementation of the case, which I think is really lovely. I should mention that as part of the strategy, we also interested some NGOs, some international and local NGOs to intervene as amici in the case. They also appeared in court so they could submit both in writing and also make oral arguments, which really helped kind of put the case on the map I think for the court also to kind of understand what was at stake. I have a couple of photos. You can see what it was like at the court. This photo is of a huge banner that was on the gate at the court's premises. The court is very active in its public outreach. Hearings are open to the public. Anyone can attend. And there's also a live video stream of all the hearings. The live video stream also saves all the previous live video streams. It's different from the YouTube channel that the court also has. There you can find the reading of some judgments. But if you Google live stream African court, you can actually go and watch previous hearings, including ours, if you want. So this is us in the roving room, which is usually the reception, but now it was the roving room for us. That's me and my little dutch lawyer's penguin outfit. Next to that, the late John Jones QC of the out-of-the-sheet chambers and Stephen Fenizia of Wilmer Hill. And next to that, Mr. Connaute and an expert on Burkina Bay law. We had a procedural question as to whether or not the exhaustion of domestic remedies had been fulfilled. Because there had been an option technically to file a cessation appeal, which we argued wouldn't have resolved the issue for him and therefore shouldn't be a requirement for the court. I was very happy with the proponent support that I got from John and Steve. The original application I filed on my own, together with two interns in the summer of 2013. And then I was like, oh, this is actually kind of a big deal, so maybe we should get some help to make sure that I don't mess up, right? And it was great. So we did all the subsequent filings together, and we also appeared in court together in March of 2014. This is us heading to the courtroom. This is the courtroom. It's huge. It's like a really big theater, and then you enter, and then there is a big podium on which there is a huge table for 11 judges, which, you know, it's all rather imposing. The teeny tiny table that you see before it is where the registry is seated to the left, where we end to the right, where Council for Bikini Faso. There are also transcribers there. Everything gets transcribed. It also gets transcribed slightly imprecisely. So later on you get the transcripts. You have to really make sure to check that everything in there is correct. This is one of the situations where it was really wonderful that we could work with a big law firm such as Wilmer Hill, because they had staff available to basically go back to those videos that I mentioned who were on the live video link, listen to everything, and make sure that everything got recorded properly. One of the things that happened actually when I was at this room was that one of the court staff members came to greet us and said, oh, oh, I thought you were a man. I said, well, I saw because I saw your press release this morning, which quoted me as Mr. Yacare Ulle Iansa. At which point he turned to my client and said, did you know that she was a woman? And my client, without skipping a beat, was like, everybody knows that women are more conscientious than men. But what I should say is that at the time when we argued the case, the president of the court was a woman, lead counsel for the applicant, that was me was a woman, and lead counsel for Burkina Faso was a woman, which I think is something that's worth noting because it's not a setup that we see very regularly in international courts. And I still hope that that will change, but that was a good day, I think. The procedure before the court is perhaps worth mentioning. You go there, you get to, you're received in the office of the president of the court. We will then, you know, sit down both parties and explain exactly what's going to happen that day. And what is going to happen is that each party gets 45 minutes to make their arguments, both on admissibility and the merits. In the first couple of cases the court did, they split those two, so there was a separate hearing on admissibility and a separate one on the merits, but they now more efficiently combined those two. And that's it. You don't get rebuttal, you don't get surrebuttal, which I thought was really strange because that's what I'm used to in a national context, right? There was, in this case, because Burkina Faso decided to make a new argument during the hearing, namely that my client actually wasn't a journalist because he didn't have a press card, which makes you wonder why he would have been convicted under the press law, at which point the president gave us the opportunity to actually make counterarguments on that point, so that was fun. The amici also got time to present their pleadings. Then the whole court, everyone breaks for lunch, you come back and then all the judges get to ask you questions. So you basically go down the entire panel, they ask questions to both parties, which you scribble down really quickly, and then you come back the next day and you each get 30 minutes to respond to those questions, and also respond to the arguments that the other side made the previous day, and that's it. So that's what the setup was. There's not a lot of questions during oral argument, I should say, so the judges kind of really save their questions until they come back from lunch, basically. Judgment, the court does sensitization missions. It wants more countries to make the declaration under Article 346 to allow for direct access to the court. So it visits different African Union member states from time to time to kind of show them that the court is there, that it's doing great work, and basically encouraging them to make this declaration. In this situation, in our case, they happened to be in Otis at the time, so in Ethiopia. So we were at the African Union headquarters, our judgment was read in the Nelson Mandela plenary hall. This is us looking very happy. This is before the judgment, actually. I was actually quite sleep deprived. Ethiopia, I filed a bunch of cases against Ethiopia, so I wanted to be in the country as briefly as possible because they have no qualms, really, in arresting NGO people. So I flew in overnight and I flew out overnight, which I can't recommend. But anyway, we all survived. And fortunately, our smiling photo turned out to be justified in the end to kind of summarize what the court is like. I just mentioned that I think it's a court that has great potential as a progressive human rights court. I think that shows that only from the dissenting opinion that was there on the merits in our case, but also, for example, the order that was made on our request for provisional measures. What we basically argued was like, listen, he's clearly in jail for really the wrong reasons. Why don't you order him to be released while we hash this out here? Should the state be right? You can always send him back to prison, which is something that would never fly at the European Order Inter-American Court. But here, there actually was a handful of judges who thought that argument was pretty reasonable. So there's possibility there to kind of push the boundaries a little bit. It's really easily accessible, which I think is fantastic. You can file your submissions via email, and then later on send the signed originals via FedEx. So it's really low threshold, which is great. The communications aren't always fabulous, but I have to say there are actually courts that are much worse. To mention the European Court, for one. At least here, there is a registry that you can email. You can pick up the phone, and they will then tell you to send your email again, and then you will get an answer. But at the European Court, it's difficult to even get a human on the phone. So in that sense, it's pretty good. So I'll leave it at that, and then we can talk about some other stuff having to do with this court later, if you want. The East African Court of Justice. Also based in Arusha, Tanzania. Arusha is like the Hague of Africa, I guess with all the international courts being based there. It has jurisdiction over the partner states of the East African community, which is kind of a sub-regional economic community. Its origins are based on trade, like the ECOWAS community, which we'll discuss in a moment. What is notable of this court is that it doesn't have explicit human rights jurisdiction. The protocol that should allow the court to get that hasn't been ratified by the partner states. However, the court at some point was a bit like, well, you know, we're kind of tired of waiting for this. This is my interpretation, it's not something anyone said. But let's look at our mandate in a progressive way. And what they've done is basically say, as long as you bring a human rights complaint there that is combined with a complaint having to do with non-adherence to the treaty, they can consider it. So you can't go there saying, hi, article search and search of the African Charter has been violated, but you can go there saying article five, six, or seven, which are usually the articles that are being used to file a reference at the East African Court of Justice, have been violated, and it also constitutes a violation of human rights. This was decided in the Katabazi case and has been consistently upheld by the court, which also has an appellate chamber, so that is consistent case law. You do not need to exhaust domestic remedies when you go to the East African Court, which is great, which makes it really quickly accessible. The only problem is, what kind of detracts from that a little bit, is that you only have a two month window to file a reference there. That's two months after the act or a mission, and the court has very strongly said that it doesn't acknowledge the concept of continuing violations. This has been hashed out thoroughly, also on appeal, so you really have to be very, very quick. It has delivered decisions on issues such as habeas corpus, freedom of expression, and also the right to a fair trial so far, but all of this under this header of looking at violations of the East African Community Treaty. The case that we filed there was against Burundi on behalf of the Burundi Journalist Union. Also in 2013, it was a busy summer, Burundi in the run up to the elections, which we now all now kind of triggered all the difficulties in the country at the moment, adopted a series of kind of repressive laws in the country, including a very restrictive press law. Burundi's press law actually was pretty good before that time, but now it allowed for prior censorship and things like that, which the Burundi Journalist Union wasn't very happy with. They tried to challenge the law within the constitutional court there, but that only found in favor of the union on a couple of really technical points. So they were basically wondering what to do next. The law got adopted in June, meaning that we had until, what was it again, 20-something August to file a case. What we did there was kind of employ a similar strategy as we did in the African courts as regards to the case law that we cited. We tried to kind of put to the fore, mostly case law that was from the region, so supreme courts, constitutional courts, et cetera, and then also make some comparisons with international bodies and what they had said about the right to freedom of expression. And we took a two-prong approach in framing our case before the court. So I just mentioned that the court has accepted that it could take on human rights cases if you present them as a violation of the treaty. So Article 6 and 7, which we're the ones to be focused on, describe what the underlying principles of the East African community are. So those are transparency, democracy, rule of law, good governance, and respect for international standards of human rights. So what we basically said was, listen, a free press is the cornerstone of the implementation of all of those principles. You can't have transparency without a proper functioning press. You can't have proper democracy and therefore also not proper rule of law. Good governance. You need a good, you know, a press that is able to do its job in order to have all these things. So that was the first argument that we made. It was kind of the Katabazi argument. Then we also tried to kind of get the court to be a little bit more bold in its assertion of human rights jurisdiction. And then the second argument that we made is like, you know, Article 6 and 7 also state that there should be respect for international human rights standards, the rights freedom of expression is an internationally acknowledged human right. So therefore this press law violates that right. The courts didn't engage with that argument at all. It did engage with the first one, though. One of the things that was really interesting in seeing how the court looked at the case was that it had, that it was challenging for them to kind of consider the law in abstract. Again, I should say there, the court is not alone there. A lot of international courts find it difficult to just kind of look at the text of a law without a concrete violation that can be attached to it, that makes it come alive, right? But they did find a number of articles clearly in violation of the community principles on the face of it, including, for example, on the protection of sources. Again, here there was also a group of amici that intervened in the case. Oh, sorry. I wanted to say here, to the left from the back, you see Donald Daya, who is the president of the Pan-African Lawyers Union. He was the advocate that actually argued the case in court. At the African court, I could appear myself. The rules of procedure don't have any requirements of having to be admitted to a bar of an African Union member state. I'm admitted to the bar in the Netherlands, so not really close to the AU at all. But that is not a problem there. East African Community Court of Justice, though, you have to be admitted to the bar of a partner state, so we needed to work with local counsel to do this. I also should say that the moment that we got done on board, who was a seasoned advocate in the East African court and also at the African court, things started going a lot more smoothly for us. It was very difficult to get our filing in. The East African court doesn't have the world's most transparent and precise rules of procedure, and they also seem to interpret them differently at different occasions. So, with this two-month deadline looming, we had someone in Arusha who went to the registry repeatedly with our reference, only to be sent back with, like, yeah, you forgot to put numbers here. Oh, yeah. No, the signature is on the right. It has to be on the left, things like that. And then at some point, we even got a hand-corrected copy of what the formatting should look like, exactly. This is interesting, by the way, because this is actually where you see that you can be blocked by the bureaucracy rather than the court itself, because there is actually a case law from the court in which someone filed a reference there and named the document, gave the document the wrong title or something, which was then used by the respondent state as an excuse to try and get the case thrown out in which the court said, well, I can see exactly what the intention of this document is. Like, let's skip all the formalities here. So that was difficult. When we finally implemented all of those corrections that were given, the person at the registry was like, oh, I'm not sure if you can have footnotes in the reference. But, you know, the ambiguity of the rules of procedure are notwithstanding, there was nothing in there that precluded us from filing it. So the case finally took off. So that was wonderful. But once we had done there, all of that disappeared. So that was wonderful. The summary of that case, sorry, I should tell you something about the procedure. It's different from the African courts in a sense that there you do all your filings with the registry. They kind of lead the process. In the East African Court of Justice, you have to, for example, serve all your filings on the opposing party yourself. So it's not like you send it into the registry. The registry makes sure that it gets distributed. So there's a lot more legwork involved there, which makes it more tricky. Anyway, so what I just described says something about the accessibility. It's a little bit more difficult to get things sorted there. I should say that it's much easier, of course, when you're actually in the partner states. Every partner state has a sub-registry where you can file. So if you're a lawyer from Uganda wanting to seize the court, you can go to the sub-registry in Kampala and do all your filings there, et cetera. The court may be a little bit more conservative, which is, I think, understandable in light of the fact that it doesn't have explicit human rights jurisdiction. So it has a bit of a balancing act to do, right, with kind of maintaining the buy-in of the partner states while at the same time also wanting to, you know, deliver good judgments in human rights issues. One of the things that I should say, though, which is really wonderful is that you can get accelerated proceedings at the court. So if you have a really urgent matter, this would actually be the place to get things done really quickly. The court is always open, basically, whereas the African court sits only in sessions and actually also hasn't figured out yet quite how to operate in between those sessions, meaning that when they're actually urgent things, it's kind of difficult to get something done there. The AKOWAS Community Court of Justice is a photo from inside the courtroom in Abuja, Nigeria. It has jurisdiction over all 15 member states of the AKOWAS community, which also started, again, as an economic community, subregional one. The court has explicit human rights jurisdiction. It's a pretty solid court, like the many human rights courts. It also faces challenges at some point with states threatening to leave because they didn't really appreciate being told off on their human rights records. But the court survived that, and it actually kind of, I think, became all the stronger for it. They're currently considering installing an appeals chamber as well, which is great. You also do not have to exhaust domestic remedies there. And the point that I listed there about the time limit is something that's actually going to be clarified in the case that we filed. So far, the general consensus has been that the court maintains a three-year time limit for filing human rights violations, claims about human rights violations, because it also can hear other matters, right? It can interpret community law also on economic issues, et cetera. But actually, when we did our hearing on admissibility in Abujaan earlier this year, it was one of the issues that the judges very much zoomed in on. We argued continuing violations for some of our clients, and of course, the respondent state argued that none of that should apply and they were just way too late. And then the judges really zoomed in on the question of whether or not they actually themselves, the court, and others had been interpreting their own rules correctly on that front. So we have to wait and see what happens, but if they actually throw that open, that basically would make the ECOWAS Court the most, the Human Rights Court with the most broad mandate on this front, allowing for human rights claims to come years after they have been committed. But let's see what happens there. The Case Federation of African Journalists and others, the others are a number of journalists from the Gambia who are now all in exile in different places, some in Africa, some outside of Africa. It's, again, a freedom of expression case. The right to freedom of expression, we argue, has been violated by persecution under criminal defamation, false news and sedition laws in the country. We basically argued that they are also not able at this point in time to practice their journalism in a way that they would have been able to had they still been in their home context. There's, of course, the obvious issue of them not being able to return to their home place to begin with. And in addition to that, there are two torture claims in the case as well of journalists who have been tortured while in custody by the National Security Services there. We filed the case in December last year, yeah, December 2015. We had a hearing on admissibility in April, which I think was fantastically quick. And that I participated in, actually, that was in Abidjan. That is one of the lawyers from our team, Noah Ajara, who is based in Abuja, in Algeria. We basically had a team of us at MLDI together with Jen Yaginsu and Anthony Jones in London, two barristers who wanted to work with us, Pro Bono on this matter, and two lawyers in Nigeria, so Noah and Angela. And we also worked together with an academic, Lawrence Helfer of Duke University, who had been studying these regional courts for years. The court's case, though, is not super accessible because not all of it ends up on the website. So a lot of it kind of has to be, like you have to be lucky that you can get a bunch of judgments from other people who have been practicing there. So it's really wonderful to have had someone on board there who actually had a pretty good overview of what the court hadn't decided on before, particularly with all the procedural issues that come into play, such as continuing violations, yes or no. So we had a hearing in Abidjan, so I managed to appear alongside Mr. Ajara there, who is admitted to the bar in Nigeria. I still am not admitted to the bar in any African Union member state, but because I kind of tagged along with him, we were able to appear together. The judges were very inquisitive. It was a panel of three. They were very active. They clearly had a very clear idea of what they wanted the discussion to focus on. So they peppered both us and the respondent state with lots of questions, which was both fun and a little bit intimidating at times. The presiding judge was very unhappy with the fact that we had submitted so much paper in the case. The rules of procedure basically say that whenever you make a filing, you have to annex the source of law that you are relying on. So we had our application, but then we also had a number of witness statements to present in evidence, each of which also had annexes. So there were loads of binders that were all brought to Abidjahana also, and I think that they were a little bit unhappy with all the paper. They were like, can we just please have no more paper? So we tried to kind of make sure that we didn't file too much after that. So I can't say too much now, of course, about the outcome of the case, because we'll have to wait and see. We'll decide on both admissibility and the merits at a date to be determined. We're hoping that it will be at the beginning of the coming year. What we're also hoping is that the court will include a little bit more language on the legal principles. The ECOWAS Court has a page limit of 15 pages for its judgments, which may be the reason why it tends to focus very much on the facts in the case when it hands down a judgment. And while it has handed down other decisions having to do with journalists and in the Hadara case explicitly referenced the right to freedom of expression in Article 9 of the African Charter, we tried to kind of frame our application in a way that we both kind of like focus on the factual reasons why the court should find in favor of our clients, but also trying to kind of like maybe elicit some more, yeah, principled language from the court, which would be very helpful to use in a national context in the different ECOWAS community member states in national proceedings. So we'll have to see if that's going to work out. The court is fairly accessible if you have a local partner. I think one of the reasons why we actually managed to get a hearing so quickly was because the lawyers we work with in Abuja were just so really well connected with the court. They litigated there all the time. They knew exactly how the registry worked. They knew how to find out information, which was just, yeah, really, really helpful. So, yeah, in that sense, it's good to have the right team there. Progressive, I don't know, so this is a little bit difficult because there's not a lot of avert reasoning or statements of principles, et cetera, in their judgments. But overall, the sense that you get is that the court is very right-minded and very pragmatic. Like I said, the judgments aren't that long, so it's something to kind of worth looking at. If you're interested in a press freedom case, the Haidara judgment is a good one to start with. I think I'll leave it at that, and we'll leave it to you to ask me questions. Yes, please. How well do the member states adhere to the judgments that are made in these courts when the judgment goes against the state? Are they obeying the judgment? It's difficult to kind of say something very general. I think with the different courts, it differs. The ECOWAS court has been struggling a little bit with its implementation mechanism, and of course, the Gambia is notorious for not implementing judgments handed down against it. Though there are... Are they not amendment jurisdictions? They are. The Gambia falls within the ECOWAS community. So there are three previous decisions against the Gambia that have to do with journalists, and none of those have been implemented by them so far. There are plenty of other examples, however, on other issues. There's a famous judgment against Niger having to do with slavery that has been implemented. And at the African court, there's only still a couple of judgments, but ours has been now almost implemented in full. We're just waiting still for the payment to be completed. In the Zongo case, the orders were to pay compensation that has happened. So I don't think it's... Yeah, I think overall the picture is actually fairly positive, but I think that's a general issue that a lot of people tend to be very pessimistic about the implementation of international judgments, whereas if you look at the overall picture, it's more looking at what types of measures are being implemented. Generally speaking, paying compensation is not that hard for a state to do, so they tend to actually comply with that. However, legislative change and all of these things which usually require a lot of investment from a state because you have to go into the whole legislative process are the ones that are more difficult. Can you talk about Konate and how you decided to pursue that? What were the factors you had to consider? The kind of work that he was doing. There's a lot of people all over the world who do a lot of journalism and some of it's really good and some of it kind of sucks. It won't help you if you're going to try to... If something happens and then you need to... You wouldn't be a good candidate for this kind of litigation. So I'm sort of curious just how do you decide to go for that and what's it like sort of showing up as coming from elsewhere? Yeah. Those are a couple of really interesting questions. First of all, we supported the case within the domestic system already. So MLDI doesn't make any selection in that sense other than just the regular vetting proceedings which is just like, okay, does it not constitute hate speech or incitement to violence, those types of things? Because we did a lot of regular case support. Why this turn into a strategic case? I think because of the expressed wish by a number of prominent actors that the court actually hand down a judgment on this point. The special rapporteur at various occasions said like, someone needs to take a case to the court. We need the court to speak out on this matter. And then looking at the facts in the case, the penalty was so disproportionate. The journalism wasn't like the most fabulous in the world that by no means merited this type of heavy handed criminal sanctions. So we basically made a judgment call like, do we think that we can win this? Yeah, that was pretty clearly a green light. I'm sorry, I forgot what it was like to show up there. So I did visit the court before actually appearing here because I thought it was important that the court was aware that we weren't like storming in there, guns blazing, coming from London, like look at us, here we are to tell you how you should do your human rights work. So I did request a meeting with the registry because I had to be in a richer for something else. And I met with the registrar to just kind of, you know, be polite and show my face. And I mean we didn't discuss the case but we just kind of show that we were there in a respectful manner. And I think, yeah, anyway, it went well. Also the communications with the courts, we didn't get any flag for that either afterwards or anything like that. So at least not openly. Sorry. I think that the implementation of these courts is a great step towards the protection of human rights. But in your point of view, what would be the next goal to try to achieve for other countries to stay in that direction? So one of the things that I struggled with a little bit was that there wasn't a coordinated effort to just kind of use the president nationally, right? I've had some really nice anecdotal examples of the Konate case being used in national context, even at the Supreme Court of India, which I thought was the nicest almost of all, in Italian decriminal defamation laws there. So I mentioned this decriminalization of defamation campaign, which is something that's ongoing, but it's really difficult to kind of coordinate all these different actors throughout the continent without sufficient funding, without sufficient steering from a local actor also. And one of the things that, because all this time everyone was saying, okay, we need to get good case law, and I was like, okay, let's go, right? But yeah, what you then need actually is someone who can take charge and make a plan, like okay, which countries can we file constitutional challenges or which countries should we monitor to kind of follow up on this. What nice follow-up is at the East African Court of Justice, actually, by an organization that we also worked with at MLD. Human Rights Network for Journalists, Uganda, who filed an application or a reference, sorry, at the East African Court of Justice, challenging the criminal defamation laws in Uganda based on the Konate case and the Burundi case, which is a really nice way of bringing those two together. And this is, I hope, yeah, I hope it has a good chance because there was an individual plaintiff who had been convicted under the criminal defamation law. So unlike a slightly abstract challenge, which basically set the stage because the court acknowledged that it has jurisdiction to look at press freedom cases, we have an individual plaintiff there who can actually make that claim. But yeah, I think in the end, the key thing is not only forcing actual implementation of these decisions, but then also using them as a tool for litigation and campaigning. I mean, litigation is not the only answer. I mean, but it can be used as a good example for national institutions to change their laws and their practices, I think. Kate, what's next? It was actually a quick follow-on to, well, I hope you forgot. Ellery's question about the Konate case, when you mentioned that you were asked one of the questions was, you know, is this person a journalist? Well, rather than whole of what constitutes journalism and a journalist that affords them the right of that level of protection, I'm wondering if you could say how you responded to that and if that has become a question in many of these other cases. So I responded to that by first of all pointing out that they themselves thought he was a journalist because they prosecuted him under the press law. And then I also explained that holding a press card in and of itself isn't the determining factor there. Pointing to the Inter-American Commission's advisory opinion on mandatory membership, et cetera. So that was it in a nutshell. That I, yeah, what I put forward there. You and then you. It's really interesting that you mentioned the Supreme Court of India because just last year it upheld the criminalization. Yeah, and unfortunately it didn't work now. You know, I know that my friends were involved in that litigation and they were sort of pretty mad about it from the beginning because they couldn't see any sort of headway, making any headway at the time. But I'm just wondering what, how do you view the, so how do the social justice movements or progressive movements in different sort of African countries view the role of these human rights courts that are sort of super national human rights courts? Is it a forum that they are willing and ready to go to whenever they view a violation or are they more apprehensive about it? Like where does it fit in with their strategies? I think overall the view of these institutions is positive. I think though that there's not always full awareness of what the options are, right? How to go about it also. I think there's a slight access to justice issue also in kind of making sure that there's sufficient awareness of the possibility to claim rights before these courts. But also I think that some of them actually are quite difficult to deal with. If you're a smaller organization with fewer resources, right? It's not that easy to then somehow get a filing in Arusha. What do you do if you have to show for a hearing? You have to travel there still. You can't go to the sub-registry and make your argument there. So there are definitely some problems there. And I think in that sense, bodies like the commission where most of the arguing goes on paper are actually much lower threshold than some of these courts. I think it was incredibly that some NGOs and the way it's a follow-up to that question that some NGOs intervened and even argued. Was that already common practice or was it unusual in that case? And are there any NGOs that are specialized in practice or intervention of any kind before the courts? And if not, would that help? And then a completely different question if you don't mind. As several countries in Africa are now attempting to withdraw from the ICC, what relationship does that have to the possibility of using regional courts? Obviously it's a completely different body or bodies of law. But is that some opportunity paradoxically to bolster the regional court? So on the amicus practice first, the one case in which a request had been made and granted in filing an amicus brief before the Konate case was in one of the Libya cases. And there are two, and I'm sorry that I always mix up the names, but anyway, that is the case that actually didn't go through because in the end no one showed up and no one made any further filings. There's another one in which a decision has been handed down earlier this year, but that's not the one, I mean, the other Libya case. So this is the first time that it actually was put into practice. They requested to make oral arguments, which the courts granted, which I think was great because I think it's really good to kind of make sure that all those submissions are given a voice. I know that subsequent requests for amicus briefs have been made. I'm not aware exactly of how many and what the status of all of those is. The Victoria in Gabira case, which I looked at recently, requests have been made and it has been opposed, but I'm not quite sure what the outcome there is. But if there are NGOs that are specialized in that, I will let a bunch of amicus coalitions. So for example, in the case against Uganda that was brought at the East African Court of Justice that I just mentioned, we let a coalition of NGOs to make a request there to find an amicus brief that is all still in the works because it's been vigorously opposed by the attorney general of Uganda. But I think in principle those things shouldn't be that hard, but again it's one of those things where you just kind of need to know how to do it. You need to have a proper look at the rules of procedure and you need to find someone who's able to draft a proper document for you that meets the requirements. And there are definitely people out there who want to do it. I don't think there's anyone centrally coordinating that with making it all a little bit haphazard perhaps. And to a certain extent it leaves it a little bit to the parties to kind of nudge others to see if they're interested. Does it answer your question? Okay. And the other question was about the ICC. So there are three protocols establishing three different courts under the African Charter. So there's the African Court of Human and People's Rights which we just talked about. Then there's the African Court of Justice. And then there's the African Court of Justice and Human Rights. Which is the one that would have criminal jurisdiction if it gets sufficient ratifications? Which is not the case yet. I think only five so far. Five states so far have ratified that protocol. There's been a lot of debates on that court and particularly on the issue of immunity for heads of state. And yeah, I don't know. I think to be very pragmatic, there are better courts with slightly more limited criminal jurisdiction that operates regionally than one that no one is willing to submit to the jurisdiction of. Yeah, I'm not quite sure how quickly that is going to go. I think it's really important to kind of keep in mind with all of these things is that it's a subsidiary jurisdiction of these international criminal courts. So they're not supposed to kick in other than when crimes are not being prosecuted nationally. Which would be the first choice always. Now you see why I'm so happy to be here today. Please join me in thanking... Thank you very much. Just for whoever is really keen on having info on this. I'm happy to share my slides. If anyone sends me an email. I also had a little handout on the details on the different courts. And I'm giving a talk tomorrow for which I also made a little overview of the different courts case law on press freedom. Kind of highlighting what the different findings are and the different standards that you can distill from it. So I wanted to print it, but the printer at the Berkman Klein Center broke down yesterday. But if you want to have it, just send me an email and I'm happy to send it over to you if you find it useful.