PROMINENT South African lawyer, Advocate Gilbert Marcus, has urged the Constitutional Court to strike down the criminal defamation law, saying it has the "chilling effect" of muzzling the press in violation of the freedom of expression that the national constitution seeks to uphold.
He argued that as long as criminal defamation remained on the statute books in the Penal Code Act of 2010, it will continue being used as a weapon by those in power to silence critics.
Advocate Marcus was arguing before court on Monday in a case in which the Publisher of the Lesotho's leading Lesotho Times newspaper, Basildon Peta, is challenging the constitutionality of the sections of the Penal Code Act of 2010 which allow for criminal defamation.
The application is before Justices, 'Maseforo Mahase, Teboho Moiloa and Moroke Mokhesi.
The Minister of Law, Constitutional Affairs and Human Rights, the Attorney General and the Director of Public Prosecutions (DPP) are cited as first to third respondents respectively in the application.
The application arose from the criminal defamation charge that was preferred against Mr Peta in his capacity as the Publisher of the Lesotho Times which carried in its 23-29 June 2016 edition, a satirical article relating to the former army commander, Tlali Kamoli.
The Scrutator is a hugely popular weekly column which satirises current affairs in Lesotho by providing humorous commentary on serious issues.
True to the elements of satire, the said article employed humour, irony, exaggeration and ridicule to expose and criticise shortcomings of political and other high-ranking figures, in this case, Lt-Gen Kamoli.
The article in question played on the idea that Lt-Gen Kamoli wanted to show that he was superior to everyone else and it ran an extended metaphor depicting Lt-Gen Kamoli ordering cabinet ministers to do increasingly absurd actions.
"Indeed, these actions were so absurd that it was obvious that the column was satirical and written in service of a political point," Advocate Marcus noted.
Mr Peta was charged on 6 July 2016 with criminal defamation in relation to the article.
He however, filed a constitutional case challenging the provisions of the Penal Code Act 2010 on which the criminal defamation charges are based. He is seeking an order striking off those sections of the Penal Code on the grounds that they constitute an unjustifiable violation of the right to freedom of expression which is expressly protected by the constitution of Lesotho.
And on Monday, Advocate Marcus drew on comparative case law from Zimbabwe which held that criminal defamation was inconsistent with the constitution.
He urged the court to find like their Zimbabwean counterparts that criminal defamation was unjustifiable in a democratic society such as Lesotho.
Explaining the nature of the article about Lt-Gen Kamoli Advocate Marcus noted that, "the article employed the key elements of satire which are humour and exaggeration and was therefore, clearly satirical and should have been understood as such".
He further argued that criminal defamation statute was couched in very broad terms and could thus be used as a virile weapon by the powerful in society to silence any form of criticism- something which was clearly inconsistent with the established norms in democratic societies.
He emphasised the importance of freedom of expression in a modern democratic society, adding that any limitation to this fundamental freedom should be justifiable.
Advocate Marcus further criticised the defamation law on the grounds that it was couched in very broad terms which gave a wide discretion to the police and prosecution to prefer charges on individuals for criminal defamation.
He said there was no need to criminalise defamation, especially as the constitution already provides for other remedies which include the right to reply, to seek a retraction of the offending article as well as civil claims against the offending party.
"This open-ended discretion is a problem to our constitution. Where laws are couched in wide terms they permit the police and prosecution to use their extra-ordinary discretion.
"The imposition of criminal sanction creates a chilling effect on individual rights-bearers and on the press. Consequently, it impoverishes the pluralist and democratic society that Lesotho's constitution safeguards."
Advocate Marcus also urged the court to take note of the decision of the constitutional court in Zimbabwe which struck down the defamation law in 2014 on the grounds that it was not justifiable in a democratic society.
In striking down criminal defamation law the Zimbabwean constitutional court noted that, "it cannot be denied that newspapers play a vital role in disseminating information in every society, whether open or otherwise".
"Part and parcel of that role is to unearth corrupt or fraudulent activities, executive and corporate excesses, and other wrongdoings that impinge upon the rights and interests of ordinary citizens.
"It is inconceivable that a newspaper could perform its investigative and informative functions without defaming one person or another. The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain," the Zimbabwean constitutional court further stated.
Commenting on the Zimbabwean court judgement on Monday, Advocate Marcus said, "in undertaking a comparative review (of case law from other countries), we do not suggest that Lesotho is required to follow precisely the model adopted in other jurisdictions.
"Rather, we seek to show that the Penal Code Act's broad criminalisation of defamation has the consequence that Lesotho would make itself an outlier among comparable democratic societies.
"This casts doubt on whether the breadth and seriousness of the incursion into the right to freedom of expression is justifiable in a democratic society," Advocate Marcus argued.
However, the lawyer representing the office of the DPP, Advocate Gareth Leppan, maintained the article about Lt-Gen Kamoli had gone beyond being satirical by depicting the latter as someone who could "commit murder and just get away with it".
"The article clearly suggests that this man (Lt-Gen Kamoli) can commit murder and get away with it. It now goes beyond satire.
"I agree that the introductory part of the article is amusing but there is still a place for criminal defamation in the modern democracy.
"When there is criminal defamation, one would think twice before doing anything," Advocate Leppan argued.
The judges reserved judgment to a date they said would be communicated to the lawyers in due course.