On 16 July 2025, the High Court of Malawi delivered a landmark judgment in a Constitutional case, declaring Section 200 of the Penal Code, which criminalises defamation, unconstitutional. The claimant argued that the provision violated his right to freedom of expression, protected under Section 35 of the Constitution, and was incompatible with Malawi’s commitments under regional and international human rights law.
The Court found that criminalising defamation under Section 200 imposes a disproportionate restriction on freedom of expression and stifles public discourse. It underscored that the right to freedom of expression, enshrined in Section 35 of the Constitution, is a cornerstone of Malawi’s constitutional democracy. The Court emphasised that any limitation on this right must be lawful, reasonable, and necessary in an open and democratic society, in line with international human rights standards. It concluded that the availability of civil remedies for defamation renders criminal prosecution not only unnecessary but also disproportionate. Moreover, Section 200 lacks adequate safeguards to prevent arbitrary or excessive interference with free speech and cannot be justified as necessary or proportionate.
Gilbert Khonyongwa, representing the Claimant, highlighted that, “this judgment is a significant victory for free expression, media freedom, and human rights. It will enhance not only personal expression but also media freedom, enabling journalists and media houses to cover significant stories without fear of criminal prosecution.”
Wesley Mwafulirwa, also representing the Claimant, stated that, “by decriminalising defamation, the court has taken a vital step toward fostering a more open and dynamic society. It has also affirmed that freedom of expression is a fundamental right essential to a healthy democracy and should not be limited by criminal sanctions.”
The Southern Africa Litigation Centre (SALC) welcomed the decision, noting that decriminalising defamation will significantly enhance public discourse by enabling open and honest dialogue on critical societal issues. The ruling is expected to promote a culture of critical thinking and constructive debate, which are essential for holding those in power accountable.
SALC’s Civic Rights Lead, Melusi Simelane, welcomed the ruling, saying, “decriminalising defamation in Southern Africa is essential for protecting freedom of expression and enabling journalists, human rights defenders, and citizens to hold authorities accountable without the threat of imprisonment. These laws often create a chilling effect that leads to self-censorship and hinders public debate on critical issues such as corruption. This ruling aligns Malawi more closely with recommendations from the African Commission on Human and Peoples’ Rights and other international human rights standards, promoting a more open society where reputations are safeguarded without undermining press freedom.”
SALC urges the Malawi Parliament to take immediate action to repeal Section 200 of the Penal Code. It further urges Parliament to review related laws and regulations to ensure they align with constitutional and human rights standards.
Background
The Claimant, Joshua Chisa Mbele, in Joshua Chisa Mbele V The Director of Public Prosecutions & The Attorney General [2025] MWHC (Constitutional Referral No. 2 of 2024) challenged the constitutionality of section 200 of the Penal Code of Malawi. Section 200 of the Penal Code provides that;
“Any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, shall be guilty of the misdemeanor termed “libel”.
It was argued that the provision infringes the right to freedom of expression under section 35 of the Constitution and is incompatible with Malawi’s obligations under regional and international human rights law. The Court established that section 200 imposed a disproportionate and unjustifiable restriction on the freedom of expression. It noted that civil remedies for defamation provide a less restrictive and more proportionate alternative, and that criminalising defamation, particularly with the threat of imprisonment, has a deterrent effect on public discourse. Consequently, the Court declared section 200 unconstitutional.
The Southern Africa Litigation Centre supported the case under the Global Campaign to Decriminalise Poverty, Status and Activism.
The summary of the judgment can be accessed here.