Lesotho: Challenging the offence of criminal defamation

SALC supported a case challenging the constitutionality of the offence of criminal defamation. On 6 July 2016, Basildon Peta was charged with the crime of defamation in contravention of section 104 of the Penal Code Act. The charges related to a satirical article published under the heading “Scrutator” in the 23-29 June 2016 edition of the Lesotho Times. The applicant is the publisher and Chief Executive Officer of the Lesotho Times. The article related to actions of the then Commander of the Lesotho Defence Force, Tlali Kamoli and the charge alleged that the applicant published the article with the intent to defame the Commander of the Lesotho Defence Force. Section 104 of the Penal Code provides that a person who publishes defamatory matter concerning another person commits the offence of criminal defamation. Mr Peta submitted that the offence of criminal defamation violates the right to freedom of expression and that the use of criminal sanctions is a disproportionate response to the need to protect individuals’ reputations in that –

• The offence as currently worded can lead to criminal charges when the defamation was not serious or not known to anyone other than the person defamed;
• There is a less-restrictive mechanism to protect individuals’ reputations in civil defamation;
• The use of a criminal sanction creates a “chilling effect” on journalism and the right to because it prevents journalists (and other individuals) from speaking out on controversial matters, and therefore has a disproportionate effect on the enjoyment of the right to freedom of expression;
• The effects of a criminal charge, irrespective of whether the charge leads to a conviction, are grave and have long-lasting effects on an accused person.

The case was heard on 19 February 2018 in the Constitutional Court before Hon Mahase J, Hon Moiloa J and Hon Mokhesi AJ. The applicant was represented by Adv Gilbert Marcus SC and Adv Isabel Goodman and Webber Newdigate Attorneys. Judgment was delivered on 21 May 2018. The Court declared the offence of criminal defamation unconstitutional with restrospective effect. The Court in its judgment confirmed that the onus of proving that the impairment of a right was justified rests on the government. Of concern to the Court was the over breadth of the offence, with a charge being possible even if no person other than the complainant became aware of the supposedly defamatory statement, and with the offence further extending to defamation of deceased persons. The Court further held that the defence that a defamatory publication was for the public benefit was too vague and could lead, as in this instance, to cases where satirical comments are criminalised. The Court held that criminalising defamation has a chilling effect on journalistic freedom of expression, resulting in self-censorship by journalists and a less informed public. The Court cited with approval calls by the African Commission and United Nations Special Rapporteur on Freedom of Expression which encouraged states to repeal criminal defamation laws. The Court’s judgment follows in the footsteps of other African courts, including the African Court, the ECOWAS Court, the Zimbabwe Constitutional Court and the Kenya High Court, which recently declared that the offence of criminal defamation violated the right to freedom of expression. The judgment is available here.