A group of non-governmental organisations has moved the courts to have criminal defamation removed from the Constitution.
The organisations are Media Institute of Southern Africa (Misa) Malawi Chapter, Centre for Human Rights and Rehabilitation (CHRR) and Youth and Society (Yas).
“We have moved the court so that section 200 of the constitution be removed completely as it infringes the right to freedom of expression,” the group’s lawyer, Wesley Mwafulirwa, said.
Youth and Society (Yas) Executive Director, Charles Kajoloweka, said criminal defamation legislation is not only archaic but also a dangerous weapon against free speech.
“It has no place in democratic Malawi. Time has come now to outlaw this retrogressive legislation,” Kajoloweka said.
According to Kajoloweka, since last year, the country has recorded 12 criminal defamation cases.
He said this is a significant number, considering that the Tonse Alliance government came into power presenting itself as better than the previous government.
CHRR Executive Director Michael Kaiyatsa said Malawi should move to abolish laws that impinge on press freedom.
“Free speech should not be criminalised unless it poses a clear risk of serious harm,” he said.
He said his organisation believes that criminalising free speech is criminalising democracy.
According to court documents, the organisations want the court to remove section 200 of the Constitution as it does not meet constitutional test.
The section stipulates that any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, shall be guilty of the misdemeanor termed ‘libel’.
The organisations have since asked that the matter should be referred to the Chief Justice so he can refer the case to the Constitutional Court.
Chairperson of the Legal Affairs Committee of Parliament Peter Dimba agreed that some laws are outdated and need to be repealed.
He however said not all laws are bad and that there is need for citizens too to be responsible.
“Citizens should try to express themselves responsibly in all social media platforms. Social media should enable healthy discussions but not the spread of misinformation and tarnishing each other’s image,” Dimba said.
Dimba also urged politicians in the country to exercise tolerance to critical and unflattering comments made by citizens.
Misa Malawi chairperson Tereza Ndanga said Misa has been calling on the government to abolish some sections of the Penal Code, Act 22 of 1929, more especially Chapter 18 which deals with defamation, Protected Flags, Emblems and Names Act of 1967, Censorship and Control of Entertainments Act of 1968, Official Secrets Act of 1913 and Electronic Transactions and Cyber Security Act of 2016.
She said the provisions do stifle free speech and need to be reviewed.
“We are joining the case as Amicus curiae [friends of the court],” Ndanga said.
However, lawyer representing the State Mustapher Kaunda has asked the court that the case should be dismissed.
“If this application is granted, it could be detrimental to the State and criminal justice,” Kaunda said.
The matter is in the hands of High Court judge Anabel Mtalimanja.