JUDICIAL independence and media freedom are usually linked. In countries where judges feel unacceptable levels of government pressure it is probable that journalists will be experiencing the same thing.
As far as journalists are concerned, criminal defamation is a serious problem hampering the media and undermining the watchdog role of journalists in many African countries. Typically, criminal defamation is used by political and business leaders in particular, to prevent journalists from investigating and writing about personal corruption, corruption in government departments or corruption in business.
A recent report by the respected international writers’ and journalists’ association PEN, has highlighted the problem of criminal defamation in Africa, and calls for it to be removed throughout the continent.
One of the strange things about criminal defamation is that it continues to sit on the statute books of so many countries – even those whose domestic courts have declared it unconstitutional – and that governments cling to these laws despite the fact that they are incompatible with the international instruments they have signed.
Even more unsettling is the fact that criminal defamation is a strong relic of Africa’s colonial past. PEN’s report says that it was originally used by the continent’s colonial masters to prevent demands for independence from the people. “It might have been expected that those against whom the colonial authorities had used the criminal defamation and sedition laws would have cast such laws aside once they gained power as leaders of newly independent African states. But this did not occur. On the contrary, they retained these laws and began using them against their own critics and opponents, and to contain, constrain and undermine the press – and latterly, the broadcast and electronic media – and the media’s role as an independent watchdog of the public interest.”
And yet, for the last 70 years at least, the right to freedom of expression has been clearly established by a series of international instruments. Against these protections, why do criminal defamation provisions remain on the statute books of so many countries, forming a powerful weapon for the mighty to use against those trying to expose wrong-doing?
PEN notes two domestic courts in Africa where criminal defamation has been declared unconstitutional. In Zimbabwe, the full bench of nine judges on the constitutional court first ruled in 2014 that the country’s previous constitution made criminal defamation unconstitutional. Two years later, the full bench found that the current constitution does the same.
In Kenya, Judge John Mativo made judicial headlines with his finding in the case of Jacqueline Okuta v Attorney General, delivered in February 2017. In that ruling he said, " the offence of criminal defamation is not reasonably justifiable in a democratic society".
Though an appeal is still pending, the Okuta judgment was a natural follow-up to the much-publicised case of Konate v Burkina Faso, heard by the African Court on Human and Peoples’ Rights, and delivered in 2014.
In the Konate case, the judges of the African Court ruled against the imprisonment of journalist Lohe Issa Konate, editor of a weekly newspaper. He had been jailed for a year on defamation, public insult and contempt charges. The court found that his imprisonment amounted to a “disproportionate interference” with the freedom of expression rights of Konate and other journalists. The judges also held that it violated Burkina Faso’s obligations under the African Charter and they instructed the authorities to change the law so that these violations could not happen again. So far, the judgment has largely been ignored by Burkina Faso and other countries, even though the findings of the African Court are binding on them.
Against this background, it is high time persecution of journalists and writers via criminal defamation and related laws came to an end, says PEN. “PEN International and PEN’s Africa Centres, comprising writers, journalists and media workers across the continent, are calling on the governments of all countries in Africa that possess or retain criminal defamation or insult laws to amend those laws and allow issues of reputation to be addressed solely as a civil law matter in which the government has no role.”
The PEN report – it is well worth reading (even just the executive summary) for the excellent, though chilling, information it contains – looks in depth at five case studies in Africa. These are
- Ghana which in 2001 became the first African country to decriminalize defamation,
- Uganda and Zambia where the authorities still apply the laws with “vigour” and show little sign that they will be scrapped, and
- Sierre Leone and South Africa where criminal defamation is still on the books, but whose governments have publicly pledged to get rid of them and make defamation a purely civil law matter.
The PEN report on criminal defamation in Africa is a particularly important and challenging document. Apart from raising a crucial but often forgotten issue, it also shows via a number of links to significant decisions, that judges, individually or as part of a full bench, are often able to mitigate the effect of criminal defamation laws, even where the government has not repealed them.
- Judgment is awaited from Lesotho, where a challenge to the constitutionality of that country’s criminal defamation law was argued earlier this year. The case arose from charges against a journalist for an article published in 2016.