By Pemphero Malimba:
The High Court sitting as a Constitutional Court in Lilongwe has nullified Section 200 of the Penal Code which criminalises defamation, arguing that it infringes on Section 35 of the Republican Constitution, which provides for freedom of expression.
A three panel of judges, led by judge Chifundo Kachale, made the ruling in Lilongwe yesterday.
Social media influencer Joshua Chisa Mbele was charged with criminal defamation under Section 200 of the Penal Code by the Senior Resident Magistrate Court in the city in 2022.
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This was after he was arrested over allegations of defaming then Malawi Defence Force Commander Vincent Nundwe.
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Mbele alleged that Nundwe received some funds from businessperson Zuneth Sattar.
He, however, moved the Constitutional Court, arguing that the offence unduly restricted his freedom of expression.
According to court documents, the State and the Attorney General argued that the criminal sanctions for defamation were a lawful and necessary means to protect dignity and public order and were consistent with international human rights.
Kachale said the court reviewed the constitutional framework emphasising the supremacy of the Constitution (sections 10 and 11) and the stringent test for restrictions on rights (Section 44(2)).
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“It found that the availability of civil remedies for defamation rendered criminal prosecution disproportionate and unnecessary for the stated purposes. Comparative jurisprudence, including decisions from African regional courts and the other Commonwealth jurisdictions, was considered supporting the preservation of criminal defamation laws, the majority of these authorities supported the decriminalisation of defamation as a matter of democratic principle,” he said.
He said the court concluded that Section 200 of the Penal Code could not be justified as necessary or proportionate since it failed to provide adequate safeguards to prevent arbitrary or excessive interference with free speech.
“Upholding the constitutional challenge, the court has declared Section 200 of the Penal Code void and further ordered that no further prosecutions be brought under it,” he ruled.
He further ruled that each party bear its own costs.
Defence lawyer Ibrahim Wallie said he was happy with the ruling.
“We came with a complaint which was not only affecting our client but also many others including you, as journalists, in terms of the things that you published. So, we are very much okay and fine with the judgement of the court,” Wallie said.
The State declined to comment on the matter.
