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 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.
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, 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 Sierra Leone also repealed its criminal defamation laws in 2020.(4)
Additionally, the ECOWAS Court has upheld that criminal defamation and libel laws should be repealed, as evidenced in the 2018 judgment in Federation of African Journalists and Others v The Gambia which “recognised that the criminal laws on libel, sedition and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) Most recently, the ACHPR ruled that Rwanda’s criminal defamation laws violated freedom of expression and impeded development in democracies. It noted that such laws “constitute a serious interference with freedom of expression, impeding the public’s right to access information, and the role of the media as a watchdog, preventing journalists and media practitioners from practising their profession in good faith, without fear of censorship.”(6)
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 Zambia,(7) 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.(8)