Last month a High Court in Kenya declared the offence of criminal defamation inconsistent with that country’s Constitution and therefore invalid. At a time when the space for free expression seems to be shrinking and threats to the media around the world are increasing, this is a decision to be welcomed and celebrated. Perhaps more significantly though, it is merely the latest in a series of developments in Africa which promote the decriminalising of expression, and the right to freedom of expression more generally.
The case in Kenya was brought by two individuals who had been charged with criminal defamation after posting allegedly defamatory comments on Facebook. The two petitioners argued that the provision in the Penal Code which made it a criminal offence to publish defamatory statements about another individual was an unjustifiable limitation of the right to freedom of expression. Kenya’s provision in the Penal Code is similar to many in other countries in the region, and was designed to protect the reputations and rights of other people who may be the subjects of defamatory statements in the media.
However, although many countries had criminal defamation offences there is a growing recognition that using criminal – as opposed to civil – sanctions to protect reputations is a disproportionate response which obstructs free expression.
The African Commission, in 2010, called on all states to repeal criminal defamation laws on the grounds that these offences “constitute a serious interference with freedom of expression and impedes on the role of the media as a watchdog.” In an important decision in 2013 the African Court on Human and People’s Rights declared that the protection of freedom of expression in the African Charter on Human and People’s Rights required that criminal defamation only be used as a last resort, and that the use of custodial sanctions is never permissible in criminal defamation cases.
In Kenya, Judge John Mativo referred to these authorities, and heavily drew on the Zimbabwean Constitutional Court decision of Madanhire v Attorney General. These two Courts undertook thorough limitations analyses before finding that the criminal defamation offences violated the Constitution, and the judgments demonstrate how criminal offences are simply not an appropriate means by which to protect individuals’ reputations.
Limitations analyses are conducted when a law is found to limit a constitutional right. In these cases, the court has to determine whether the limitation is justifiable: that is, whether, despite the fact that the right is being infringed, the laudable objectives of the law outweigh the harm caused by the rights’ limitation. The courts examine the importance of the right itself and the extent to which the law limits its enjoyment, and then weigh that up against the objectives that the law seeks to achieve and whether those objectives can be achieved in a way that restricts the right in a less intrusive manner.
The Courts in Kenya and Zimbabwe recognised that the offence of criminal defamation exists to protect individuals’ reputations, but held that because there is the possibility of suing in civil law for damages following the publication of a defamatory statement, the offence is not the least intrusive way in which to achieve the goal of protecting reputations. Both courts highlight the harmful consequences for an individual if they are charged with a criminal offence – irrespective of whether they are convicted of that offence – and how the mere existence of criminal defamation serves as a chilling effect on journalism. Journalists who know that there is a risk of being charged with criminal defamation often self-censor themselves and choose not to report on controversial issues involving high-profile individuals out of fear of being criminal charged. Judge Mativo remarked that “[t]he overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain [which] may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.”
In South Africa, criminal defamation had been declared to be consistent with the Constitution in the Supreme Court of Appeal in 2008. However, last year, the African National Congress introduced a bill into Parliament to repeal the common law offence of criminal defamation.
Criminal defamation offences remain part of the criminal law in many other African countries, and continue to be used against journalists exposing corruption or poor governance. However, decriminalising defamation is an important way for us to enable and encourage accountability and transparency in our democracies, and Kenya’s judgment demonstrates that more and more African countries and their judiciaries are heeding the call from the African Commission to decriminalise expression.