On 17 December 2024, the Malawi High Court, sitting as a Constitutional Court, heard a constitutional challenge to the offence of criminal defamation under section 200 of Malawi’s Penal Code. The case sought to align domestic criminal law with Malawi’s constitutional and international obligations to uphold and protect the right to freedom of expression.
The challenge arose from the prosecution of Joshua Chisa Mbele, who was charged with criminal defamation for allegedly defaming the then-Army Commander. While the case does not deal with the truth or falsity of the statements made, it raises critical constitutional questions about the legitimacy of criminal sanctions in addressing reputational harm.
Legal Issues
The case contests the constitutionality of criminal defamation on the grounds that it infringes upon the right to freedom of expression, as protected under Malawi’s Constitution and international human rights instruments to which Malawi is a party.
Under international law, any restriction on freedom of expression must be:
- Lawful
- Necessary
- Proportionate
- Pursuing a legitimate aim
Global and regional human rights mechanisms, including the African Commission on Human and Peoples’ Rights and the UN Human Rights Committee, have consistently warned against using criminal penalties, particularly custodial sentences, to regulate speech. These mechanisms stress that criminal defamation laws are frequently misused to silence criticism and stifle public discourse.
SALC supports the decriminalisation of defamation across the region and advocates for the use of civil remedies, which offer a more balanced approach to protecting reputations while upholding freedom of speech.
Through this case, SALC seeks a judicial declaration that criminal defamation under section 200 is unconstitutional and inconsistent with Malawi’s human rights obligations.
Mr. Mbele is represented by Wesley Mwafulirwa of Kawelo Lawyers, with legal support from the Southern Africa Litigation Centre under the Global Campaign to Decriminalise Poverty and Status.
17 December 2024 – High Court ruling.
16 July 2025 – High Court hearing a constitutional matter (summary of judgment).
16 July 2025 – High Court judgment .
News Releases
17 July 2025 – Malawi High Court declares criminal defamation unconstitutional.
10 December 2024 – Malawi High Court to consider challenge of criminal defamation.
Case in the News