It’s time we abolished criminal defamation laws

Free speech is the last bastion against irresponsible government

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by Joshua Nyawa

The Supreme Court of the United States stated, in ‘New York Times v Sullivan’, held that the circulation of information and ideas should be uninhibited, robust and wide-open. No politician should be permitted to silence his or her critics. It is a matter of the most fundamental importance that such criticism should be free, open, robust and even unrestrained. This is so because of the inordinate power and influence which is wielded by politicians, and the seductive influence which these attributes have upon corrupt men and women. The most appalling crimes have been committed by politicians because their baseness and perversity was hidden from public scrutiny.

Lord Keith in Derbyshire observed, “…It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism … all other utterances or publications against the government must be considered absolutely privileged…”

Again, according to Bury in (the) ‘History of Freedom of Thought’, freedom of expression is a supreme condition of mental and moral progress. It is absolutely indispensable for the preservation of a free society in which government is based upon the consent of an informed citizenry, and is dedicated to the protection of the rights of all, even for the most despised minorities.

Freedom of expression is constitutionally protected as the lifeblood of democracy. True democracy can only thrive in a house of competing ideologies and philosophies. In the words of the fabled Justice Benjamin Cardozo, freedom of thought and speech is the matrix – the indispensable condition – of nearly every other form of freedom.

Limitations

Freedom of expression can be subject to restrictions on specific and limited grounds. These are set out in Article 19 (3) of the International Covenant on Civil and Political Rights and Article 29 (2) of the Universal Declaration on Human Rights. Restrictions have to be provided in law and be justified as being necessary for a particular legitimate purpose.

Per Article 19 (3) of the ICCPR, for a restriction to be legitimate, it must not only be provided by law but it also has to be publicly accessible, clear and drawn narrowly and with precision in order to be understood by everyone and to enable individuals to regulate their behaviour accordingly. 

The European Court of Human Rights settled the demand for restrictions to be prescribed by law in the following terms: [A] norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given situation may entail. The law cannot be vague, that is, existing without a clear definition of what constitutes right and wrong, acceptable or abhorred. Laws that grant authorities excessively broad discretionary powers to limit expression fail the requirement of “prescribed by law.”

In ‘Re: Ontario Film and Video Appreciation Society v. Ontario Board of Censors’, the Ontario High Court considered a law granting the Board of Censors the power to censor any film it did not approve of. In striking down the law, the Court noted that the evils of vagueness extend to situations in which unfettered discretion is granted to public authorities responsible for enforcing the law. The Court stated:

It is accepted that law cannot be vague, undefined, and totally discretionary; it must be ascertainable and understandable. Any limits placed on the freedom of expression cannot be left to the whim of an official; such limits must be articulated with some precision or they cannot be considered to be law.

The final limb of this qualification is that the citizens have to be made aware of this restriction. The Canadian Supreme Court explained this requirement in the following terms: “Justification…requires more than the general goal of protection from harm common to all criminal legislation; it requires a specific purpose as pressing and substantial as to be capable of overriding the Charter’s guarantees.”

It’s a high standard to be overcome for any State justifying a restriction. “Necessary” in International Law implies that, when deciding to restrict the freedom of expression, the government must be faced with a situation of need, not merely convenience. To this end, the European Court has held:

“…the adjective ‘necessary’, within the meaning of Article 10 (2), is not synonymous with ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’…”

According to the Court, necessity involves an analysis of whether there is a pressing social need; the inference at issue was proportionate to the legitimate aim pursued and whether the reasons adduced are relevant and sufficient. Even though Government can have legitimate reasons, such purposes cannot be pursued by means that stifle fundamental personal liberties when the end can be more narrowly achieved. There must be proportionality between the effects of the measures taken on the right concerned and the objective of the measures. 

Proportionality test

It is customary that in restricting the Freedom of expression, custodial sentences can only be applied in very exceptional circumstances. Application of criminal law should only be invoked in the most serious of cases and should be applied as a measure of last resort.

The African Commission on Human and Peoples’ Rights, in Resolution 169 adopted on 24th November 2010, condemns criminal defamation in the specific context of journalism and the media in the following manner: 

“Criminal defamation laws constitute a serious interference with freedom of expression and impede on [sic] the role of the media as a watchdog, preventing journalists and media practitioners to practice [sic] their profession without fear and in good faith.”

Accordingly, the Commission calls upon States Parties to the African Charter on Human and Peoples’ Rights to repeal criminal defamation laws or Insult Laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments.

Criminal defamation laws represent a serious threat to freedom of expression because of the very sanctions that often accompany conviction and they should be used as the last resort. According to Lisby, even the mere threat of prosecution, results in the suppression of freedom of speech.  

Criminal defamation laws jeopardise the freedom of expression. They make the right moribund. In his treatise on liberty John Stuart Mill encourages the masses to accept hostile expressions, if not for anything else, the opportunity to prove them wrong. He writes: 

“In the case of any person whose judgment is really deserving of confidence, how has it become so?… Because he has felt, that the only way in which a human being can make some  approach to knowing the whole  of a subject, is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be looked at by every character of mind. No wise man ever acquired his wisdom in any mode but this; nor is it in the nature of human intellect to become wise in any other manner.” 

The African Charter takes the view that prison sentences for defamation should be abolished without further delay. In particular, it exhorts states whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them.

In the Zimbabwe case of ‘Navajo Madanhire and Another vs. AG’, the court declared defamation laws as unconstitutional – the African Court on Human and Peoples Rights finding inter alia that criminal penalties for defamation are inappropriate because the civil remedy is sufficient. The court reiterated the popular call to decriminalize defamation. On the same subject, the High Court of Kenya made the following observation: 

“…Freedom of speech and expression in a spirited democracy is a highly treasured value. The media, Authors, philosophers and thinkers have considered it as a prized asset to the individuality and overall progression of a thinking society, as it permits argument, allows dissent to have a respectable place, and honours contrary stances. Needless to emphasize, freedom of speech has to be allowed specious castle, but the question is should it be so specious or regarded as so righteous that it would make reputation of another individual or a group or a collection of persons absolutely ephemeral, so as to hold that criminal prosecution on account of defamation negates and violates right to free speech and expression of opinion. Keeping in view the foregoing, I propose here and now to see how the constitutional conception has been understood by the Courts where democracy and rule of law prevail…”

In sum, the constitutional freedom of expression is a powerful medicine in a society as diverse and populous as ours. It is designed to remove governmental restraints from the arena of public discussion. Criminal defamation is a blemish that must not be allowed to discolour it. ( 

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