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    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) 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  Sierra Leone also repealed its criminal defamation laws in 2020.(4)

    Additionally, the ECOWAS Court has upheld that criminal defamation and libel laws should be repealed, as evidenced in the 2018 judgment in Federation of African Journalists and Others v The Gambia which “recognised that the criminal laws on libel, sedition and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)

    Footnotes

    1. UN Human Rights Council, ‘General Comment No. 34 at article 47 (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf). Back
    2. 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). Back
    3. 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/). Back
    4. 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/). Back
    5. In 2012 Rwanda convicted a journalist of defaming the President, but in 2020 the African Commission of Human and People’s Rights found that it violated her right to freedom of expression and that Rwanda’s criminal defamation law violates article 9 of the African Charter.  For more see here: https://www.mediadefence.org/news/african-commission-finds-rwandan-authorities-violated-journalists-right-to-freedom-of-expression/.  In Zambia, the law on criminal defamation is contained in Sections 191-198 of the Penal Code (accessible here: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/66208/62114/F-489934566/ZMB66208.pdf), while there is a separate Defamation Act of 1953, Chapter 68, that covers civil defamation (accessible here: http://www.parliament.gov.zm/node/792). Back
    6. Bregman Moodley Attorneys, ‘Criminal Defamation’, (2019) (accessible at: https://www.bregmans.co.za/criminal-defamation/). Back
    7. Media Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training manual on international and comparative media and freedom of expression law’, Media Defence at pp 48-64 (2018) (accessible at: https://www.mediadefence.org/sites/default/files/resources/files/MLDI.FoEManual.Version1.1.pdf), at p.49 Back
    8. Inter-American Court of Human Rights, Kimel v. Argentina, (2008) (accessible at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_177_ing.pdf). Back
    9. African Court, above. Back
    10. See for example: European Court of Human Rights, Amorim Giestas and Jesus Costa Bordalo v. Portugal, Application No. 37840/10 (2014), par. 36 (accessible at: https://hudoc.echr.coe.int/eng?i=001-142084 in French). Back