Criminal defamation is a relic of colonial totalitarianism, has no place in modern democracy

INTRODUCTION
Criminal defamation has continued to be a thorny issue in most countries around the globe. This is despite the fact that Freedom of expression is an indispensable avenue which empowers members of particular societies to demand better service delivery from, and expose any maladministration and corruption among those entrusted with political power by the people. In this regard, there has been wide condemnation of criminal defamation laws by International bodies labeling these laws as being inimical to democracy and freedom of expression. In 2002, the United Nations special rapporteur on freedom of opinion and expression, the Organization for Security and Co-operation in Europe representative on freedom of the media, and the Organization of American States special rapporteur jointly declared that “…all criminal defamation laws should be abolished and replaced where necessary with appropriate civil defamation laws.” To that end, some countries have repealed criminal defamation laws and replaced them with civil defamation laws. The Courts have also played a significant role in this democratization by declaring criminal defamation laws to be unconstitutional. In this short paper I engage in a discussion of how a few countries have dealt with this issue. I give some examples of some countries that have repealed the criminal defamation laws as well as those countries other than Zambia which still enforce these laws.

Various European and international human rights bodies, including international and regional courts that have a mandate in the area of human rights protections have criticized the imposition of criminal sanctions in defamation cases. This criticism is rooted partly in fears that criminal sanctions, when compared to civil remedies, carry a greater potential to generate a chilling effect on the media and on freedom of expression more broadly. In addition, criminal defamation laws, which involve the exercise of state power and the use of state resources, are particularly prone to abuse in order to silence opponents and critics. The UN Human Rights Committee has said that all states “should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”. In the case of Artun and Güvener v. Turkey, the court held that “a state’s interest in protecting the head of state cannot justify conferring on him or her a privilege or special protection vis-à-vis the right to report and express opinions about him or her. To think otherwise would be to depart from today’s political practice and conception”. This state of affairs depicts how the law of criminal defamation of the head of state has been viewed as being in bad taste.

The courts of law in many countries have played a significant role in impeding the continued abuse of the defamation laws by political powers to silence their critics. France repealed its criminal defamation law protecting the French president following the European Courts on Human Rights’ decision in Eon.
I now proceed to give examples of specific countries.

Zimbabwe

The crime of criminal defamation was abolished in Zimbabwe after the Constitutional Court found it to be unconstitutional. Essentially the court found that the criminalization of speech that carried with it a threat of imprisonment for offenders had a stifling effect on free speech and it was a disproportionate instrument for protecting reputation, especially because there was an alternate civil remedy available. The court premised its stance on the fact that the offence was not one which is reasonably justifiable in a democratic society. In this landmark ruling, the Zimbabwean Constitutional Court declared unconstitutional a section of the draconian Criminal Law (Codification and Reform) Act that criminalizes defamation.
This emanated from a case in which two journalists were charged with criminal defamation after their paper, the Zimbabwe Independent, published a story naming state security agents alleged to have abducted opposition and human rights activists in 2008. The effect of this ruling is that no prosecutions can now be brought under section 31(a)(iii) as currently worded. The court decided that the restrictions that this provision imposed on freedom of expression were not reasonably justifiable in a democratic society

South Africa
 In South Africa the courts have used the constitutional provisions on freedom of expression to develop the common law on defamation. This approach towards the liability especially of the media seeks to achieve a better balance between the protection of reputation on the one hand and the right and duty of the press to inform the public about matters of public interest. In the case of Thembi-Mahanyele v Mail and Guardian & Another  the newspaper had published an article that suggested that a Cabinet member was corrupt. The Court said freedom of expression in political discourse is necessary to hold members of the Government accountable to the public.This approach has particularly been adopted in respect of cases where the press has published articles that question the fitness of public officials to hold public office on the basis of morality or alleging that they were indulging in corrupt vices. The South African courts have decided the media plays an important role in investigating and exposing malpractices in both the public and private sectors and therefore some latitude must be allowed to the media in the interests of keeping members of society informed about what Government is doing or has done.

United States
Criminal defamation laws are generally regarded with disfavor in the United States. Several states have repealed these statutes. The court in the United States held criminal defamation to be unconstitutional in the case of Ashton v. Kentucky in which the court stated that
it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”
 
Meanwhile, in the case of Zervos v. Trump, 9 (not yet reported) the trial court denied Mr. Donald Trump a motion to dismiss defamation proceedings against him. The court in its ruling stated that “a sitting president is not immune from being sued” for his personal conduct because “no one is above the law”, citing a previous Clinton  precedent. As opposed to the Zambian scenario, the U.S laws mandate a sitting president to appear in the courts of law.

Liberia
President George Manneh Weah has resubmitted to the National Legislature a Bill with modifications, to repeal some sections of the Penal Law of Liberia in an effort to decriminalize free speech and create an unfettered media environment. The Bill submitted May 31, 2018 seeks to amend Chapter 11 of Penal Law of 1978, repealing Sections 11.11 on criminal libel against the President; 11.12 on Sedition and 11.14 on criminal malevolence

Gambia
The Gambian Supreme Court’s had in May, 2018 declared criminal defamation unconstitutional. However, the court upheld provisions that punish statements likely to promote hatred among “different classes” and sedition relating to the country’s president and judicial processes and decisions on the basis that harm to reputation is extremely insidious and once reputation has been damaged, it is very difficult to repair the damage.

They have decided that errors of fact should be tolerated, provided that statements were published justifiably and reasonably in the public interest, that is with the reasonable belief that the statements made are true.

That notwithstanding, there are many other countries apart from Zambia that have continued to uphold the Criminal Defamation laws.

Uganda
In Uganda, the authorities continue to apply the laws criminalizing defamation and insult with vigour and show little sign of dispensing with them. Uganda’s 1995 Constitution guarantees freedom of speech and media freedom but defamation remains criminalized under vague and broadly-framed provisions of the Penal Code Act, enacted in 1950 when Uganda remained under British colonial rule. The continued application of criminal defamation laws is in the interest of the authorities or politically powerful. Uganda’s criminal defamation laws restrict peaceful exercise of the right to freedom of expression, inhibit political debate and the media, and are inimical to good governance and democratic accountability. They said that journalists who venture to investigate or report on issues that affect the interests or well-connected individuals risk being summoned for lengthy police interrogations, which appear designed to harass and interfere with their pursuit of their deadline-driven profession.

Sierra Leone
The principal law restricting peaceful expression is the Public Order Act of the country. It criminalizes defamation, seditious libel and the dissemination of “false news”. This law gives impetus to the authorities to punish and deter political and other criticism or dissent and the disclosure of embarrassing or otherwise sensitive information that the government wishes not to be heard by the general citizenry. The State has in the recent past been using the POA provisions against citizens who posted divergent comments on social media. In February 2015, for example, police arrested Mahmoud Tim Kargbo and charged him with forwarding a message on WhatsApp that they considered defamed President Koroma. He was held for 52 days and eventually discharged five months later

Zambia
It would be interesting to experience how the Zambian courts would interpret the criminal defamation law if its constitutionality was challenged in view of some of the precedents given above. The Minister of Justice has in the recent past called for the repeal of the antiquated colonial laws. The Zambian Law Development Commission in its annual reports has called for the alignment of Zambian laws to constitutional imperatives. Most people in the past have been convicted of this offence without any challenge to its constitutionality. Just because the law is in the statutes does not mean that it is not unconstitutional. But of course laws are not self-executing. They only become alive when challenged. And the court can’t just rubberstamp a law when and if challenged just because it is in the statute books. The court would have to take the above precedents into consideration. Such a case to challenge the constitutionality of Zambia’s totalitarian criminal defamation law could come any time. That law shall be struck down unless a nolle prosequi is entered to save the law or an acquittal is entered on the facts of the impeding case or cases.

CONCLUSION
The Criminal Defamation laws have continued to be a source of concern among various International and Regional organizations concerned with Human Rights. This is because these laws are being used by those in political offices to deprive the general citizenry of their freedom to express themselves on issues of national interest. This paper has outlined the countries among them the United States and Zimbabwe that have repealed the Criminal Defamation in a bid to promote freedom of expressions and speech. The paper has also identified countries among them Sierra Leone and Uganda that are still vigorously enforcing the law of Criminal Defamation of the President. These latter countries are not democratic.

BIBLIOGRAPHY
JOURNALS/ ARTICLES

• Defamation and Insult Laws in the OSCE Region: A Comparative Study:OSCE Representative on Freedom of the Media) March 2017
• Joint Declarations of the representatives of intergovernmental bodies to protect free media and expression; Ed. by Adeline Hulin. Vienna: OSCE Representative on Freedom of the Media, 2013.
• General comment No. 34”, U.N. Human Rights Committee, 102nd session, published 12 September 2011, www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf.
• Stifling dissent, impeding accountability: Criminal Defamation Laws in Africa. PEN International.

STATUTES
• Codification and Reform Act Chapter 9 of the Laws of Zimbabwe
• Uganda Penal Code Act (Chapter 120) of 1950.

CASES
• Ashton v. Kentucky (1966) 384 US. 195
• Madanhire & Another v The Attorney General (2014)1 ZLR 719 (CC).
• Artun and Güvener v. Turkey [2007]no 75510/01
• Thembi-Mahanyele v Mail and Guardian & Another (2004) (6) SA 329 SCA

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