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) and the Africa Commission on Human and People’s Rights (ACHPR) who have both urged states to reconsider such laws. For instance, 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 XIII(1) of the Principles on Freedom of Expression in Africa calls on states to review all criminal restrictions on content to ensure that they serve a legitimate interest in a democratic society.
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. Since the African Court’s decision, there have been important developments in domestic courts on the continent. For instance, in the 2016 case of Misa-Zimbabwe et al v Minister of Justice et al,[/footnote] 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. Most recently, 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,(3) stating that they violated the right to freedom of expression as protected in the Lesotho Constitution. Sierra Leone also repealed its criminal defamation laws in 2020.(4)
Additionally, the ECOWAS Court has upheld that criminal defamation and libel laws should be repealed, as evidenced in the 2018 judgment in Federation of African Journalists and Others v The Gambia which “recognised that the criminal laws on libel, sedition and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.”(5)
Despite this, many countries retain criminal defamation laws, even where they have been declared unconstitutional and are clearly contrary to international law instruments. Some countries, such as Rwanda and Zambia,(6) continue to apply criminal defamation laws with vigour, while others such as South Africa have pledged to get rid of them but thus far have failed to do so.(7)
Protection against criminal defamation laws
When a criminal defamation law remains on the statue book, there are a number of strict protections that should apply to prevent defamation from being used to stifle freedom of expression:(8)
- The criminal standard of proof — beyond a reasonable doubt — should be fully satisfied.(9)
- Convictions for criminal defamation should only be secured when the allegedly defamatory statements are false, and when the mental element of the crime is satisfied, i.e. when they are made with the knowledge that the statements were false or with reckless disregard as to whether they were true or false.
- Penalties should not include imprisonment, nor should they entail other suspensions of the right to freedom of expression or the right to practice journalism.(10)
- As a less restrictive means, states should not resort to criminal law when a civil law alternative is readily available.(11)