Criminal defamation declared unconstitutional in Lesotho
Basildon Peta v Minister of Law, Constitutional Affairs and Human Rights and Others, Case No. CC 11/2016
Court: Constitutional Court of Lesotho
Date of judgment: 18 May 2018
The Constitutional Court of Lesotho (Constitutional Court) has declared the offence of criminal defamation inconsistent with the right to freedom of expression contained in section 14 of the Constitution of Lesotho, and therefore invalid with retrospective effect.
Background
The applicant is the owner and publisher of the Lesotho Times, a weekly newspaper in Lesotho. In the 23-29 June 2016 edition, the applicant published an article titled “Flicker of hope for my beloved kingdom…” under a satirical section in the newspaper that satirises current affairs in Lesotho. The article related to the then Commander of the Lesotho Defence Force, Mr Tlali Kamoli, and detailed how he ordered public officials to do ridiculous and absurd things in an apparent show of power.
Approximately a week later, the applicant was charged with criminal defamation in terms of section 104 of the Lesotho Penal Code Act No. 6 of 2010 (Penal Code), read with sections 101, 102(1) and 102(2) thereof. The charge alleged that the applicant had published the article with the intention to defame Mr Kamoli. While the applicant’s criminal case was still pending, the applicant launched a constitutional challenge against the relevant provisions of the Penal Code, arguing that they violated the right to freedom of expression enshrined in section 14 of the Constitution of Lesotho.
Before the Constitutional Court of Lesotho
The Constitutional Court emphasised the importance of freedom of expression and freedom of the press. In this regard, it noted that freedom of expression serves at least the following important purposes: (1) it assists in the search for truth by individuals; (2) it fosters and encourages individuals’ political decision making; and (3) it helps individuals to obtain self-fulfilment. It noted further that the right does not only apply to information or ideas that are favourably received or regarded as inoffensive, but also to those that offend, shock or disturb.
In respect of satire as a form of expression, the Constitutional Court stated (at paras 9-10) as follows:
Satire as a form of artistic expression is protected by section 14 of the [C]onstitution. In its robust interrogation of the topical issues the press is allowed latitude to employ some measure of exaggeration or provocation. It can rightfully be sarcastic, ironic, humorous and satirical in its commentary.
…
Public figures … enjoy less protection and should display a high degree of tolerance and criticism. Any person, by accepting public office ‘inevitably and knowingly lays himself open to close scrutiny of his every word and deed … and he must consequently display a greater degree of tolerance.’” (Footnotes omitted.)
In assessing the limitation of the right to freedom of expression, the Constitutional Court accepted that the purpose of section 104 of the Penal Code – that being to protect individuals’ reputation interests – was of sufficient importance to merit an abridgement of freedom of expression. The Constitutional Court also stated that it would assume, without deciding, that the impugned provisions of the Penal Code were rationally connected to achieving the purpose of protecting individuals’ reputations.
However, the Constitutional Court went on to hold that the impugned provisions were overbroad. In this regard, the Constitutional Court took into account various considerations, including that the means chosen through the Penal Code to protect the individuals’ reputation interests were broader than necessary to accomplish the objective; that the concept of “public benefit” was not explained in the Penal Code, and had concerning potential for abuse by political powers to silence legitimate criticism; and that “defamatory matter” referred to in section 101 of the Penal Code extended to dead persons without being time-bound. In respect of satirical speech in particular, the Constitutional Court held that by criminalising satire the Penal Code impinges on the right to freedom of expression more than is necessary in a practical sense in a democratic society.
With regard to the proportionality between the effects of criminalising defamation and its curtailment of freedom of expression, the Constitutional Court concluded that criminal defamation has a chilling effect on journalistic freedom of expression that may lead to self-censorship, and that civil remedies for reputational encroachment are more suited to redressing such reputational harm.
Accordingly, the Constitutional Court held that “the crime of defamation has no place in our current [c]onstitutional dispensation”, and ordered that section 104 of the Penal Code, together with its accompanying sections, be struck down altogether as inconsistent with section 14 of the Constitution of Lesotho.
Order of the Constitutional Court of Lesotho
- Section 104 of the Lesotho Penal Code, read together with sections 101, 102 and 103 thereof, are declared inconsistent with section 14 of the Constitution of Lesotho and therefore invalid.
- The declaration of invalidity shall operate with retrospective effect.
- The applicant is awarded the costs of this application, including the costs of two counsel.
The judgment is accessible here.
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