Criminal Defamation is Unconstitutional- Full Judgment

7/25/2019 Criminal Defamation is Unconstitutional- Full Judgment

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CRIMINAL DEFAMATION IS UNCONSTITUTIONAL- FULL

JUDGMENT

The Constitutional Court has declared criminal defamation

unconstitutional because it is inconsistent with the freedom

of expression guaranteed in the new constitution and there

are appropriate and satisfactory alternative civil remedies to

combat defamation.

Full judgement:

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(ntroduction to Roman !aw ";rd ed.$ at p. #N#7 its rationale

may derive from the social insecurity of the patricians7 who

became increasingly threatened by the mounting power of


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the plebeians. (n #Nth and #Gth century +olland7 the 2root

Placaat oe= abounds with enactments on the sub?ect. The

reason for such repeated restatements of the oFence seems

to have been the prevalence of defamatory lampoons7sDuibs7 verses and scurrilous satires7 pertaining in particular

to persons in authority. ee Rex v +arrison and *ryburgh

#9,, A* ;,: at ;,N1;,G.

(n /imbabwe7 the oFence of criminal defamation and its

parameters are prescribed in s 9 of the Criminal !aw Code

as follows>H"#$ Any person who7 intending to harm the reputation of

another person7 publishes a statement which J

"a$ when he or she published it7 he or she =new was false in a

material particular or realised that there was a real ris= or

possibility that it might be false in a material particularK and

"b$ causes serious harm to the reputation of that other

person or creates a real ris= or possibility of causing seriousharm to that other persons reputationK

shall be guilty of criminal defamation and liable to a @ne up

to or exceeding level fourteen or imprisonment for a period

not exceeding two years or both.

",$ (n deciding whether the publication of a statement has

caused harm to a persons reputation that is suMciently

serious to constitute the crime of criminal defamation7 acourt shall ta=e into account the following factors in addition

to any others that are relevant to the particular case J

"a$ the extent to which the accused has persisted with the

allegations made in the statementK

"b$ the extravagance of any allegations made in the

statementK

"c$ the nature and extent of publication of the statementK


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"d$ whether and to what extent the interests of the tate or

any community have been detrimentally aFected by the

publication.

";$ ub?ect to subsection "


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relating to the actus reus of various oFences7 there are the

crimes of possessing an HoFensiveI or HdangerousI weapon7

causing HseriousI or HgrievousI bodily harm7 and committing

HaggravatedI indecent assault or theft in HaggravatingIcircumstances. The interpretation and application of any such

de@ning epithet forms part of the daily diet of ?udicial oMcers

in the lower courts.

As ( read it7 the oFence of criminal defamation is clearly

formulated with suMcient precision in s 9 of the Criminal

!aw Code so as not to create any ambiguity or vagueness asto the conduct that is proscribed as being punishable.

)oreover7 the speci@c factors that may entail harm of a

HseriousI nature are succinctly articulated in s 9",$ to aFord

adeDuate guidance to the trial court in determining whether

or not the alleged harm to a persons reputation is suMciently

serious to constitute criminal defamation. These include the

extent to which the accused has persisted with thedefamatory allegations7 the extravagance of the allegations7

the nature and extent of the publication7 and whether and to

what extent the interests of the tate or any community have

been detrimentally aFected thereby. Although these factors

are not exhaustive7 they tend to enhance rather than

diminish the prospect of the accused receiving a fair trial.

(n the premises7 ( am satis@ed that the challenge against the

constitutionality of criminal defamation vis1Q1vis the rights

enshrined in ss #G"#$ and #G"9$ of the former Constitution is

devoid of merit and cannot be upheld.

4REE*O) O4 EPRE(O%

There can be no doubt that the freedom of expression7

coupled with the corollary right to receive and impart


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information7 is a core value of any democratic society

deserving of the utmost legal protection. As such7 it is

prominently recognised and entrenched in virtually every

international and regional human rights instrument. (ndeed7at its @rst session in #9


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ee Retro@t "Pvt$ !td v Posts and Telecommunications

Corporation 8 Another #99S ",$ /!R #99 "$ at ,##C14K

3nited Parties v )inister of 'ustice !egal 8 Parliamentary

AFairs #99N ",$ /!R ,S< "$ at ,9A1E. )ore recently7 theouth African upreme Court of Appeal made the following

pronouncement per treicher 'A7 in the case of +oho v The

tate B,::G /ACA 9G at para. ,9>

HThe importance of the right to freedom of expression has

often been stressed by our courts. uppression of available

information and of ideas can only be detrimental to the

decision1ma=ing process of individuals7 corporations andgovernments. (t may lead to the wrong government being

elected7 the wrong policies being adopted7 the wrong people

being appointed7 corruption7 dishonesty and incompetence

not being exposed7 wrong investments being made and a

multitude of other undesirable conseDuences. (t is for this

reason that it has been said that freedom of expression

constitutes one of the essential foundations of a democraticsociety and is one of the basic conditions for its progress and

the development of man.I

(t certainly cannot be gainsaid that the oFence of criminal

defamation operates to encumber and restrict the freedom of

expression enshrined in s ,:"#$ of the former Constitution.

On the other hand7 it is also not in doubt that the oFence ofcriminal defamation falls into the category of permissible

derogations contemplated in s ,:",$"b$"i$7 as being a

provision designed to protect the reputations7 rights and

freedoms of other persons. 5hat is in issue for determination

by this Court is whether or not it is a limitation that is

reasonably ?usti@able in a democratic society.


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The test as to what is democratically reasonable and

?usti@able is not susceptible to precise legal formulation. (n

my own appreciation7 the test may well vary from one society

to another depending upon its peculiar political organisationand socio1economic underpinnings. %evertheless7 as was

recognised by 2ubbay C' in the oft1cited (n re )unhumeso 8

Others #99< "#$ /!R


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other persons7 is suMciently important to warrant the

limitation of freedom of expression7 and the detailed

provisions of s 9 are clearly rationally connected to that

ob?ective. 5hat is contentious7 in my view7 is theproportionality of the means deployed in this instance. (n

other words7 is it necessary to criminalise defamatory

statements in order to accomplish what is otherwise an

unDuestionably legitimate ob?ectiveU (t seems logical to

answer this Duestion in two stages> @rstly7 what are the

conseDuences of criminalising defamation and7 secondly7 is

there an appropriate and satisfactory alternative remedy todeal with the mischief of defamationU

The practical conseDuences that would ordinarily ow from a

complaint of criminal defamation are as follows. The accused

person would be investigated and face the danger of arrest.

This would arise even where the alleged defamation is not

serious and where the accused has an available defence tothe charge. Thereafter7 if the charge is prosecuted7 he will be

sub?ected to the rigours and ordeal of a criminal trial. Even if

the accused is eventually acDuitted7 he may well have

undergone the traumatising gamut of arrest7 detention7

remand and trial. )oreover7 assuming that the accused has

employed the services of a lawyer7 he will also have incurred

a sieable bill of costs which will normally not be recoverable.

( would accept that the foregoing tribulations are not peculiar

to the oFence of criminal defamation and would potentially

be encountered by an accused person charged with any

serious criminal oFence. +owever7 what is distinctive about

criminal defamation7 though not con@ned to that oFence7 is

the stiing or chilling eFect of its very existence on the right

to spea= and the right to =now. This7 in my view7 is the more


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deleterious conseDuence of its retention in the Criminal !aw

Code7 particularly in the present context of newspaper

reportage.

(t cannot be denied that newspapers play a vital role in

disseminating information in every society7 whether open or

otherwise. Part and parcel of that role is to unearth corrupt or

fraudulent activities7 executive and corporate excesses7 and

other wrongdoings that impinge upon the rights and interests

of ordinary citiens. (t is inconceivable that a newspaper

could perform its investigative and informative functionswithout defaming one person or another. The overhanging

eFect of the oFence of criminal defamation is to stie and

silence the free ow of information in the public domain. This7

in turn7 may result in the citienry remaining uninformed

about matters of public signi@cance and the unDuestioned

and unchec=ed continuation of unconscionable malpractices.

The chilling eFect of criminalising defamation is further

exacerbated by the maximum punishment of two years

imprisonment imposable for any contravention of s 9 of the

Criminal !aw Code. This penalty7 in my view7 is clearly

excessive and patently disproportionate for the purpose of

suppressing ob?ectionable or opprobrious statements. The

accomplishment of that ob?ective certainly cannot

countenance the spectre of imprisonment as a measure that

is reasonably ?usti@able in a democratic society.

The fact that investigative ?ournalism may on occasion

involve the publication of erroneous or inaccurate information

does not detract from the reciprocal rights to receive and

impart information and ideas without interference. As was

aptly observed in +ohos case "supra$ at para. ,9>


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HAlthough false information will not bene@t a society7

democratic or otherwise7 the right to freedom of expression is

not restricted to correct or truthful information because

errors are bound to be made from time to time and tosuppress the publication of erroneous statements on pain of

penalty would of necessity have a stiing eFect on the free

ow of information.I

Another very compelling reason for eschewing resort to

criminal defamation is the availability of an alternative civil

remedy under the actio in?uriandum in the form of damagesfor defamation. Although this remedy may not be as

expeditious as criminal prosecution7 it aFords ample

compensatory redress for in?ury to ones reputation. (f this is

correct7 the invocation of criminal defamation to protect

ones reputation would be unnecessary7 disproportionate and

therefore excessive.

One of the arguments proFered for the retention of criminal

defamation is that in?ury to ones reputation may have more

serious and lasting eFects than a physical assault and that7

as is the case with assault7 there is nothing excessive about

one in?ury attracting both a civil claim and a criminal penalty.

ee +ohos case "supra$ at para. ;S. +owever7 what this

argument disregards is that an act of assault or malicious

damage to property7 unli=e defamation7 impinges upon the

very fabric of society7 i.e. by threatening the manner in which

citiens are expected to interact in their daily lives without

fear of physical violence. (n the case of defamation7 only the

individual rights of the complainant are aFected7 and he has

a clear alternative remedy in civil law7 without sub?ecting the

defamer to the distress attendant upon criminal arrest and

detention.


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(n +ohos case7 the upreme Court of Appeal dealt with the

constitutionality of a conviction for criminal defamation. The

court deemed civil and criminal liability for defamation to be

eDuivalent in the extent of their limitation7 as the onerousconseDuences of criminal liability are counterbalanced by an

onerous burden of proof. (t was accordingly held7 at para. ;7

that criminal defamation was not abrogated by disuse and

was perfectly consonant with the new outh African

Constitution. The oFence was reasonably reDuired to protect

personal reputations and did not go further than was

necessary to accomplish that ob?ective. (t was not too drastica limitation on the right to freedom of association.

(n an article written by &inaya= hardwa? and en 5in=s7 in

the )ail 8 2uardian of # to N %ovember ,:#;7 commenting

on the decision in +ohos case7 the vital diFerences between

criminal and civil liability are commendably highlighted. (

ta=e the liberty to Duote extensively from this article and toassociate myself with the propositions articulated therein>

HCivil law exists to provide relief and restitution when one

person harms or threatens to harm anothers private

interests. Criminal law exists to ensure retribution and

protection of the public7 by detaining oFenders and deterring

others from oFending.

4or assault7 imposing imprisonment or supervision isessential to protect the victims and the public at large. 4or

damaging speech7 however7 the civil law is as eFective7 if not

more so7 in providing the public with proportionate protection

from oFenders.

Crucially7 freedom of expression is constitutionally enshrined

and encouraged7 as the lifeblood of democracy. The freedom

to wield @sts and @rearms en?oys no similar status in our


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supreme law. Thus the analogy between assault and

defamation brea=s down. (t is an unreliable guide to @nding

an appropriate balance between the rights to dignity and free

speech.(t is also disputable that civil and criminal defamation impose

eDuivalent limitations7 and that the harsher conseDuences of

criminal liability are neatly oFset by the heavier burden of

proof. There are important diFerences in practice and in

principle. 4irst7 a prosecution targets the ?ournalist rather

than the ?ournal. A civil suit is aimed primarily at the

defendant with the deepest poc=ets74urthermore7 while civil liability may be discharged within

days7 through payment or some other performance7 criminal

liability endures long after the sentence has been served7 or

even if the sentence has been suspended. Criminal liability is

permanent and pervasive. (t brands the accused with a mar=

so deep and indelible7 it can be expunged only by

presidential pardon. (t stains every sphere of that personslife. +e becomes a criminal7 and must disclose that every

time he applies for a ?ob7 a visa or even a ban= account.

Even if the state does not discharge its onerous burden of

proof7 the very existence of the crime creates the ris= of

wrongful accusation7 investigation7 prosecution and even

conviction7 with all the associated inconvenience and

scandal. These ills can barely be corrected on appeal7 and

thus the crime could easily be used to cow courageous

?ournalists.

(t is this brand of public disapproval that criminal law rightly

casts on murderers7 rapists and thieves7 precisely for its

deterrent potency. The same ob?ective could not and should

not apply to in?urious speech7 the borders of which are

elusive and essentially sub?ective.I


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T+E (%TER%AT(O%A! *()E%(O%

On the international plane7 it is not without signi@cance that

the 3nited %ations Commission on +uman Rights has decried

recourse to criminal defamation in order to stie free speech>H*etention as a sanction for the peaceful expression of

opinion is one of the most reprehensible practices employed

to silence people and accordingly constitutes a serious

violation of human rightsI.

(n similar vein7 in 2eneral Comment %o. ;< "supra$ at para.

H*efamation laws must be crafted with care to ensure that

they comply with paragraph ; Bthe derogation clause in

Article #9 of the Covenant7 and that they do not serve7 in

practice7 to stie freedom of expression. V. Care should beta=en by tates Parties to avoid excessively punitive

measures and penalties. V. tates Parties should consider

the decriminalisation of defamation and7 in any case7 the

application of the criminal law should only be countenanced

in the most serious of cases and imprisonment is never an

appropriate penalty.I

The Committee endorsed and applied these strictures in a

complaint by one Alexander Adonis against the 2overnment

of the Philippines. The complaint involved the imprisonment

of a radio broadcaster for alleged defamation. (n its decision

in Communication %o. #G#SW,::G7 adopted on , October

,:## at its #:;rd session7 the Committee found as follows7 at

paras. N.N to N.#:>

HThe Committee ta=es note of the authors allegation that his


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conviction for defamation under the Philippine Penal Code

constitutes an illegitimate restriction of his right to freedom

of expression because it does not conform to the standards

set by article #97 paragraph ;7 of the Covenant. The authormaintains7 in particular7 that the criminal sanction of

imprisonment established by the Philippine Revised Penal

Code for libel is neither necessary nor reasonable V.

Article #97 paragraph ;7 lays down speci@c conditions and it is

only sub?ect to these conditions that restrictions may be

imposed7 i.e. the restrictions must be provided by lawK they

may only be imposed for one of the grounds set out insubparagraphs "a$ and "b$ of paragraph ;K and they must

conform to the strict tests of necessity and proportionality V.

(n light of the above7 the Committee considers that7 in the

present case the sanction of imprisonment imposed on the

author was incompatible with article #97 paragraph ;7 of the

Covenant.I

Turning to the regional sphere7 the African Commission on

+uman and Peoples Rights7 in Resolution #9 adopted on ,

Hcriminal defamation laws constitute a serious interference

with freedom of expression and impedes on Bsic the role ofthe media as a watchdog7 preventing ?ournalists and media

practitioners to practice Bsic their profession without fear

and in good faithKI

Accordingly7 the Commission calls upon tates Parties to the

African Charter on +uman and Peoples Rights>

Hto repeal criminal defamation laws or insult laws which

impede freedom of speech7 and to adhere to the provisions of


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freedom of expression7 articulated in the African Charter7 the

*eclaration7 and other regional and international

instruments.I

CO%C!3(O%

+aving regard to all of the foregoing7 ( ta=e the view that the

harmful and undesirable conseDuences of criminalising

defamation7 vi. the chilling possibilities of arrest7 detention

and two years imprisonment7 are manifestly excessive in

their eFect. )oreover7 there is an appropriate and

satisfactory alternative civil remedy that is available tocombat the mischief of defamation. Put diFerently7 the

oFence of criminal defamation constitutes a disproportionate

instrument for achieving the intended ob?ective of protecting

the reputations7 rights and freedoms of other persons. (n

short7 it is not necessary to criminalise defamatory

statements. ConseDuently7 ( am satis@ed that the oFence is

not reasonably ?usti@able in a democratic society within thecontemplation of s ,:",$ of the former Constitution.

Accordingly7 it is inconsistent with the freedom of expression

guaranteed by s ,:"#$ of that Constitution.

4REE*O) O4 EPRE(O% 3%*ER T+E %E5 CO%T(T3T(O%

As ( have observed at the outset7 the principal issue for

determination in casu is the constitutionality of criminal

defamation under the former Constitution. 5hat has not and

need not be considered for present purposes is the validity of

that oFence within the framewor= of the new Constitution.

5hat ( would simply note at this stage is that the freedom of

expression and freedom of the media as secured by s # of

that Constitution are framed diFerently in several material

respects. Of particular signi@cance is subs "S$"c$ which

expressly excludes malicious in?ury to a persons reputation


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or dignity from the ambit of the freedom of expression and

freedom of the media guaranteed by subss "#$ and ",$. Also

relevant is s S# which declares that every person has

inherent dignity and the right to have that dignity respectedand protected.

+aving regard to these provisions7 ta=en together7 it is

arguable that the freedom of expression conferred by s # is

to be more narrowly construed as being subordinate to the

value of human dignity. (t might also be argued that the

oFence of criminal defamation is a ?usti@able limitation on

the freedom of expression as envisaged by s G of the newConstitution. (n any event7 as ( have said7 these are matters

for argument and consideration as and when an appropriate

case is brought for determination before this Court.

*(PO(T(O%

The relief sought herein is for the permanent stay of

prosecution of the applicants on the charge of criminaldefamation brought against them as being in contravention

of s ,:"#$ of the former Constitution. They have succeeded in

demonstrating that the oFence of criminal defamation is not

reasonably ?usti@able in a democratic society on any of the

grounds mentioned in s ,:",$ of the Constitution. +owever7

before the declaratory relief that they see= can be granted7 it

is necessary to apply the rule nisi reDuirements of s ,


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such of the grounds mentioned in section #"N$7 #N",$7 #9"S$7

,:",$ and " ( agree.

)A!AA *C'> ( agree.

/(0A)( 'A> ( agree.


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25A3%/A 'A> ( agree.

2AR5E 'A> ( agree.

2O5ORA 'A> ( agree.

+!AT+5A0O 'A> ( agree.

23&A&A 'A> ( agree.

Atherstone 8 Coo=7 applicants legal practitioners

Attorney12enerals OMce7 respondents legal practitioners

*(TR(3TE* 0 &ER(TA

e1mail> veritasXmango.wK website> www.veritasim.net

&eritas ma=es every eFort to ensure the provision of reliable

information7

but cannot ta=e legal responsibility for information supplied.

"

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Criminal Defamation is Unconstitutional- Full Judgment

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