This report is a legal analysis by the staff of the American Bar Association (ABA), Center for Human Rights (Center) of the criminal case against Ivorian freelance journalist and human rights activist,It is based upon a review of public reports, trial monitors' notes, and the judgment of the Toumodi Court of First Instance.
Since July 2018, there has been increasing tension between local communities concerned about the impact of gold mining activities in N'Dakoussikro, Cote d'Ivoire. Konan is originally from N'Dakoussikro. He had reportedly expressed concern on social media about public reports of intimidation and harassment of community members who were expressing concern about a proposed mining project. Ultimately, despite many concerns raised, the proposed mining operation moved forward.
On or about August 2, 2019, Konan was in N'Dakoussikro and spoke at a community meeting. He later testified that he had not traveled for the purpose of participating in a meeting and that his remarks were made in response to the community members' discussion and concerns and were solely focused on whether an environmental impact assessment had been conducted. He also informed community members that they had the right to pursue such a statement and further engage the government on potential risks the gold mine posed to the health of the community.
On August 3, 2019, several participants from that meeting blocked the road to the mine and reportedly demanded the local government meet with them. Three police officers were dispatched to the site of the protest, looking for Konan to arrest him. They were detained by the community protesters for several hours and, ultimately, released unharmed. Konan reportedly came to the protest site to deescalate tensions after hearing of the confrontation.
On August 4, 2019, Konan was arrested at a bus station as he was preparing to travel back to Abidjan. During the arrest, for which the officers did not rely on a warrant, Konan was severely injured and one of the three arresting officers lost his finger during the struggle. According to press reports of the incident, Konan's injuries were life-threatening.
After reports of his arrest and treatment circulated amongst the community, youths from the N'Dakoussikro community raided the local police station, resulting in the destruction of property. They also burned down the house of the village chief who was perceived by some community members as supportive of the mining operation.
Konan was not presented before a court for almost three months after his arrest, at which time he was visibly unwell and faced difficulty standing. He was charged with a litany of crimes, including sequestration or unlawful confinement, public disorder, and violence, that stemmed from the August 3 protest. In particular, the State accused him of being criminally responsible for the protest itself, the detention of the three gendarmes, for inflicting injuries upon the arresting officers, and for inciting the attacks on the police station and the home of the village chief. Based upon the Center's trial monitors' observations and a review of the judgment of the Court of First Instance, it appears this was entirely based on the State's theory that Konan was the "leader" of the local anti-mining movement and therefore responsible for any acts committed by the community protesters.
The proceedings against Hubert Yao Konan and his conviction by the Toumodi Court of First Instance failed to meet fundamental due process and fair trial rights as guaranteed under recognized regional and international standards. Konan was reportedly arrested without a warrant and authorities failed to inform him of the reasons for his arrest. The serious injuries he suffered at the time of his arrest indicate that he was likely arrested with a level of force that exceeded that which was necessary to take him into custody. Months after sustaining these injuries, Konan was still unable to walk independently and required assistance to take the stand during his trial.
Following his arrest, he was held in police custody for approximately 88 days before being presented before a court of law. This period was in violation of the right of an accused to be promptly presented before a court of law and well outside the 48 hours required under domestic law.
As for the trial, while a majority of the hearings before the Toumodi Court of First Instance adhered to basic due process rights, his first court appearance, on October 30, 2019, was held behind closed doors. Further, drawing upon an analysis of the court's judgment and the Center's observations of the evidence presented during the trial, the Center's staff have concluded that Konan's guilty convictions--particularly of the crimes of sequestration or illegal restraint; violence against public authorities; and violence and public disorder--were not based on the required standard of proof beyond a reasonable doubt.
On December 17, 2020, the Bouaké Appeal Court upheld the decision of the Toumodi Court of First Instance. In upholding the lower court's decision, the appeal court similarly failed to address the lower court's failure to hold the State to its burden of proof.