Maseru, Lesotho – On Monday 21 May 2018, the Lesotho High Court (sitting as a Constitutional Court), in a unanimous judgment declared the offence of criminal defamation unconstitutional with retrospective effect.
The case of Basildon Peta v Minister of Law, Constitutional Affairs and Human Rights and 2 Others, Constitutional Case No. 11 of 2016, was heard before Hon. Mahase J, Hon. Moiloa J and Hon. Mokhesi AJ on 19 February 2018. The case was brought by Basildon Peta, the owner and publisher of the Lesotho Times. He was charged with the offence of criminal defamation after the Lesotho Times in 2016 published a satirical column (the Scrutator) relating to the then-Commander of the Lesotho Defence Force, Tlali Kamoli. The decision to challenge the offence was in response to the repression journalists in the country faced at the time.
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 constituted an unjustifiable limitation of the right to freedom of expression. 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 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.
“We commend the Lesotho Constitutional Court bench for its brave decision, which makes a significant contribution to freedom of expression jurisprudence in the region”, said Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre. “We are concerned by the ongoing use of criminal defamation laws against journalists and human rights defenders and hope that this decision will also send a message to other governments to reform their laws.”
Mr Peta was represented by Adv Gilbert Marcus SC, Adv Isabel Goodman and Webber Newdigate. The case was supported by the Southern Africa Litigation Centre.