The High Court of Malawi sitting as a Constitutional Court has declared as unconstitutional Section 200 of the Penal Code which criminalised defamation, earning applause from Media Institute of Southern Africa (Misa) Malawi Chapter.
Delivering judgement in a case where businessperson and social media influencer Joshua Chisa Mbele took the Director of Public Prosecutions and the Attorney General to court, challenging the constitutionality of the now struck down section, a three-judge panel of Chifundo Kachale, Fiona Mwale and Mzondi Mvula said the right to freedom of expression provided in Section 35 of the Constitution is a foundational value in Malawi’s constitutional democracy, subject only to limitations that are lawful, reasonable, recognised by international human rights standards and necessary in an open and democratic society.
“Section 200 of the Penal Code, which imposes criminal sanctions for defamatory statements, is not the least restrictive means available for the protection of reputation, given the adequacy of civil defamation remedies.
“The breadth of the section, its potential for arbitrary enforcement, and the deterrent effect of criminal prosecution on legitimate public discourse render it incompatible with constitutional guarantees,” reads the judgement The Nation has seen.
The court further observed that comparative and regional human rights jurisprudence strongly supported the decriminalisation of defamation in favour of civil remedies as the appropriate legal response to reputational harm.
Declared the court: “The court concluded that Section 200 could not be justified as necessary or proportionate and failed to provide adequate safeguards to prevent arbitrary or excessive interference with free speech. Upholding the constitutional challenge, the court declared Section 200 void and ordered that no further prosecutions be brought under it.”
Reacting to the judgement, Misa-Malawi, which has for decades advocated for the repeal of several “bad” laws including the now struck down provision, said described the ruling as “a landmark victory for freedom of expression”.
In a statement signed by Misa Malawi chairperson Golden Matonga, the advocacy group applauded Mbele and the court for upholding the principles of justice and freedom and for recognising that in an open and democratic society, civil remedies are sufficient to address reputational harm.
“We particularly commend Mbele for taking a bold step in challenging the undemocratic laws and Justices Chifundo Kachale, Fiona Mwale and Mzondi Mvula for their courageous and progressive ruling,” reads the Misa Malawi statement.
The section stated: “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’.”
In the case, Mbele challenged the constitutionality of Section 200 of the Penal Code on the basis that the provision infringed his right to freedom of expression under Section 35 of the Constitution and was inconsistent with Malawi’s obligations under regional and international human rights law. He made the claim amid pending criminal proceedings against him for alleged defamatory statements concerning a public official.
