The High Court of Malawi ruling declaring unconstitutional Section 200 of the Penal Code, which criminalised defamation, has ignited calls for a review of laws limiting free speech, including the Electronic Transactions and Cyber Security Act (ETCSA) of 2016.
The High Court, sitting as a Constitutional Court, on Wednesday struck down the section in a case where businessperson and social media influencer Joshua Chisa Mbele took the Director of Public Prosecutions and the Attorney General to court.
Through his lawyers Wesley Mwafulirwa and Gilbert Khonyongwa, he argued that the provision violated his right to freedom of expression, which is protected under Section 35 of the country’s Constitution and that it was a mockery to Malawi’s commitments under regional and international human rights law.
The court agreed with him.
But while legal minds and civil rights campaigners yesterday declared the judgement as a historic and significant victory for free expression, fearless democratic discourse, media freedom, and human rights, they charged that there are still related bad laws that should be reviewed.
Speaking in an interview yesterday, Mwafulirwa said the ruling by a three-judge panel of Chifundo Kachale, Fiona Mwale and Mzondi Mvula should help Malawians to reflect on the human rights implications of the ETCSA and such other laws that restrict freedom of expression, especially on online platforms.
He said: “I believe people are freer. However, there remain bottlenecks. Some of these are in the ETSCA. As you are aware, this Act has been highly abused by State agencies to stifle political communications..”
National Advocacy Platform chairpersons Benedicto Kondowe, also a private practice lawyer, said while the ruling is a breakthrough, there remain restrictive provisions in the ETCSA that threaten limit to digital rights.
He said: “Malawi needs comprehensive legal reforms to harmonise all speech-related laws with constitutional guarantees. Offenses such as ‘offensive communication’ must be reviewed or repealed to prevent abuse.”
Kondowe further advised that beyond legal changes, safeguards such as clear enforcement guidelines, independent oversight and public digital literacy are important.
Legal scholar John-Gift Mwakhwawa said the court has only decided on Section 200 of the Penal Code and has not annulled any section from the ETCSA.
He said: “The judgement does not affect any related laws. Offenses under the ETCSA, which are tailor-made for cyber security, are still intact. Civil remedies have not been removed and one can still seek monetary compensation or obtain an injunction.”
Malawi Law Society honorary secretary Francis Mmame said they will comment comprehensively on the matter once they have read the full judgement.
For decades, critics of the section, including respected constitutional scholar Edge Kanyongolo have argued that there was no justification for the State to be involved in the protection of personal reputations given that the country already has a civil law in place that can provide remedies in defamation cases.
In a joint statement dated July 17 2025, Youth and Society, Media Institute of Southern Africa (Misa) Malawi Chapter, Centre for Human Rights and Rehabilitation, Human Rights Defenders Coalition, Catholic Commission for Justice and Peace and others called on the State and Parliament to review the ETCSA and other laws policing free speech.
One of the sticky provisions in ETCSA concerns Section 24, which says there shall be no limitations to online public communication, but the same may be restricted to prohibit incitement on racial hatred, xenophobia or violence, prohibit justification for crimes against humanity, promote human dignity and pluralism in the expression of thoughts and opinions and protect public order and national security.
Speaking during the Malawi Civic Space Dialogue held from August 23 to 24 2024 in Lilongwe, Minister of Information and Digitalisation Moses Kunkuyu said the government was committed to revisiting the ETCSA, stating that “these laws must evolve with our society and ensure they protect, rather than hinder, the freedoms they were designed to uphold”.
But in response to our questionnaire yesterday, Ministry of Justice spokesperson Frank Namangale said reviewing the Act is still work in progress and separate from the High Court decision.
The decriminalised section said: “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’.”
Mbele challenged the Penal Code’s Section 200 amid pending criminal proceedings against him for alleged defamatory statements concerning a public official.
