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7/25/2019 Criminal Defamation is Unconstitutional- Full Judgment
1/21
http://insiderzim.com/criminal-defamation-is-unconstitutional-full-
judgment/
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:
REPORTA!E "#$
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+!AT+5A0O 'A7 PATE! 'A 8 23&A&A 'A
+ARARE7 OCTOER 97 ,:#; 8 '3%E #,7 ,:# An
(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.
7/25/2019 Criminal Defamation is Unconstitutional- Full Judgment
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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.
"