Criminal Defamation

Module 5: Defamation

Historically, defamation was usually a criminal offence. While some countries still have the offence of criminal defamation on their statute books, it is widely opposed, most notably by:

the United Nations (UN);

the Africa Commission on Human and People’s Rights (ACHPR);

the UN Human Rights Council (UNHRC) General Comment No. 34 provides that: “States Parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”;(1)

Moreover, Principle 22 of the African Commission on Human and People’s Rights (ACHPR) Declaration on Principles of Freedom of Expression and Access to Information in Africa calls on states to amend criminal defamation and libel laws in favour of civil sanctions that are necessary and proportionate. It further states that the imposition of custodial sentences for the offences of defamation and libel is a violation of the right to freedom of expression.

Court have also taken a strong stance:

In a landmark decision handed down by the African Court on Human and Peoples’ Rights (African Court) in 2013 in the matter of Konaté v Burkina Faso,(2) it was held that imprisonment for defamation violates the right to freedom of expression and that criminal defamation laws should only be used in restricted circumstances.

The ECOWAS Court has upheld that criminal defamation and libel laws should be repealed, as evidenced in the 2018 judgment in Federation of African Journalists and Others v The Gambia which “recognised that the criminal laws on libel, sedition and false news disproportionately interfere with the rights of Gambian journalists and directed that The Gambia “immediately repeal or amend” these laws in line with its obligations under international law.”(3)

Most recently, the ECOWAS Court held that Nigeria’s Broadcasting Code violated the right to freedom of expression protected by the ACHPR because the Code prohibited protected speech and the sanctions for committing hate speech were excessive. Nigeria was ordered to align the code with its international obligations and to protect the right to freedom of expression.(4)

African Commission’s critique of Rwanda’s criminal defamation laws

Agnes Uwimana-Nkusi v. Rwanda concerned the conviction of journalists Agnes Uwimana-Nkusi and Saidati Mukakibibi on the grounds of defamation and threatening national security following the publication of three articles criticizing the Rwandan government.(5)

The journalist published articles detailing allegations of corruption among high-profile public officers, the human rights situation in Rwanda, and other government shortcomings. The government argued that the articles intended to incite violence and strife against the government by using defamatory statements devoid of evidence. Having exhausted all available domestic remedies, Media Dence (Media Legal Defence Initiative as it was then), filed a complaint to the Commission on behalf of the journalists arguing Rwanda violated their rights to freedom of expression and to a fair trial.

The Commission considered whether discussing the 1994 Rwanda Genocide amounted to genocide denial. Considering Rwanda’s history, it assessed if implementing penal code articles was necessary and proportionate. The Commission emphasized democratic governance contexts in evaluating public order protection and incitement definitions. While acknowledging the sensitivity around the genocide, it found the journalists’ articles did not incite violence or threaten security.

The Commission criticised criminal defamation laws, deeming them disproportionate restrictions on journalism. It stressed the vital role of freedom of expression in democracy, particularly in fostering political discourse and holding officials accountable. Consequently, the Commission ruled Rwanda’s actions violated Article 9 of the Charter by unjustly restricting the journalists’ freedom of expression.

Promisingly domestic trends indicate – for several countries – a shift away from criminal defamation:

In 2016, in Misa-Zimbabwe et al v Minister of Justice et al,(6) the Constitutional Court of Zimbabwe declared the offence of criminal defamation unconstitutional and inconsistent with the right to freedom of expression as protected under the Zimbabwean Constitution.
In 2018, the Constitutional Court of Lesotho struck down the provisions of the Penal Code relating to criminal defamation in Peta v Minister of Law, Constitutional Affairs and Human Rights,(7) stating that they violated the right to freedom of expression as protected in the Lesotho Constitution.
In 2020, Sierra Leone’s Parliament has also repealed its 1965 Public Order Act in 2020 by approving the Independent Media Commission Act 2020.(8)
In 2022, Zambia amended the Penal Code to abolish the offence of criminal defamation of the President.(9)
In 2023, the South African legislature, repealed the common law crime of criminal defamation, this was done through the passing of the Judicial Matters Amendment Bill. In clause 35(2) the Bill notes that there are well-established civil remedies to respond to defamation as opposed to the chilling criminal defamation laws.

Despite these important legal decisions protecting freedom of expression, there have been instances in which journalists faced arrest for defamation.

In 2019 in Ghana, National Security operatives raided an online news portal’s office, arresting its deputy editor and a reporter over the publication of allegedly false news about the National Security Minister Albert Kan Dapaah.
In October 2021, also in Ghana an editor of a digital newspaper, David Tamklie, was arrested by plain-clothed officers wielding guns for publishing false news.(10) The arrests were carried out under the Criminal and Offices Act of 1960 and the Electronic Communications Act 775 of 1960. According to the Criminal Offences Act, anyone who publishes or reproduces a false statement, rumour or report that could cause fear and alarm to the public commits a misdemeanour. The Electronic Communications Act similarly provides that any person who knowingly sends a false electronic communication is liable for conviction to a fine or imprisonment of no more than five years or both.(11)
In Angola, a reporter was arrested and charged with criminal defamation insult and forgery, if convicted, the reporter faces up to 1.5 years in prison according to the Penal Code.(12) Criminal defamation investigations against Angolan journalists spike ahead of the elections and are reported as criminalising journalism in Angola.(13)

Footnotes

UNHRC, ‘General Comment No. 34’ (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf).
African Court, Application No. 004/2013 (2013) (accessible at https://en.african-court.org/images/Cases/Judgment/Judgment Appl.004-2013 Lohe Issa Konate v Burkina Faso -English.pdf).
Media Defence, ‘Update: ECOWAS Court delivers landmark decision in one of our strategic cases challenging the laws used to silence and intimidate journalists in the Gambia’ (2018)(accessible at https://www.mediadefence.org/news/update-ecowas-court-delivers-landmark-decision-in-one-of-our-strategic-cases-challenging-the-laws-used-to-silence-and-intimidate-journalists-in-the-gambia/).
The Incorporated Trustees of Expression Now Human Rights Initiative v. Federal Republic of Nigeria ECOWAS ECW/CCJ/JUD/37/23 accessible at https://altadvisory1.sharepoint.com/sites/PowerLaw/Shared Documents/General/U. Research/Media Defence – Update Africa Modules/Summary Modules/Drafts to client/in Federation of African Journalists and Others v The Gambia.
Agnes Uwimana-Nkusi v. Rwanda (2021) (accessible at https://achpr.au.int/en/decisions-communications/agnes-uwimana-nkusi-saidati-mukakibibi-rwanda-42612). See also Global Freedom of Expression at Columbia University, ‘Case update: Agnes Uwimana-Nkusi v. Rwanda (accessible at https://globalfreedomofexpression.columbia.edu/cases/agnes-uwimana-nkusi-v-rwanda/).
Constitutional Court of Zimbabwe, Case no. CCZ/07/15 (2015) (accessible at https://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/Order-3-Feb-2016.pdf).
Constitutional Court of Lesotho, Case no. CC 11/2016 (2018) (accessible at https://www.southernafricalitigationcentre.org/wp-content/uploads/2018/05/2018-05-21-Judgement.pdf).
Media Foundation for West Africa, ‘Major Boost for Press Freedom as Sierra Leone Scraps Criminal Libel Law after 55 years’ (24 July 2020) (accessible at https://www.mfwa.org/major-boost-for-press-freedom-as-sierra-leone-scraps-criminal-libel-law-after-55-years/).
International Bar Association, ‘Zambia: IBAHRI welcomes death penalty abolition’ (2023) (accessible at https://www.ibanet.org/Zambia-IBAHRI-welcomes-death-penalty-abolition).
Section 208.
Section 76.
Committee to Protect Journalists “Angolan authorities charge journalist with criminal defamation over corruption report” 2023 (Accessible at https://cpj.org/2023/09/angolan-authorities-charge-journalist-with-criminal-defamation-over-corruption-report/).
Committee to Protect Journalists “Angolan editors questioned in separate criminal defamation investigations” 2021 (Accessible here).