6 February 2018

South Africa: Writers Push Governments to Repeal the Laws On Criminal Libel

Global association of writers, PEN International, which has been campaigning against the retention of criminal defamation laws in Africa, is pressuring the governments of Uganda, South Africa, Sierra Leone and Zambia to repeal their laws to expand the democratic space.

PEN recently released a report, Stifling Dissent, Impeding Accountability - Criminal Defamation Laws in Africa, in Kampala, detailing how governments stifle the freedom of expression, open debate, political criticism and media reporting using laws that criminalise speech or publications that they consider defamatory.

These laws are used to muzzle the media and so protect those who wield the greatest power -- politicians, bureaucrats and business people -- rendering them virtually untouchable and publicly unaccountable, while affording little or no protection to ordinary citizens.

Decriminalising defamation, PEN argues, would serve the public interest by freeing journalists to investigate and report on key political issues and personalities without the constant threat of criminal prosecution.

This would help the media to act as a more effective watchdog and ensure government accountability and, ultimately, enhance democracy.

"The threat of criminal sanctions inevitably deters media investigations into and reporting of issues governments consider sensitive or embarrassing, such as high-level corruption, official malpractice or law breaking, thereby facilitating official secrecy and undermining accountability," the report notes.

"Where journalists, editors or publishers have refused to be cowed into self-censorship by these laws, they have been subject to arrest, detention, prosecution and long drawn out trials, and sometimes imprisonment," it adds.

In 2016, Zimbabwe and Kenya declared criminal defamation laws unconstitutional.

On February 6, 2017, the High Court of Kenya declared the criminal defamation provision of Kenya's Penal Code, Section 194, incompatible with Kenya's 2010 Constitution and, thus, unconstitutional.

On February 3, 2016, a full Bench of nine judges sitting in Zimbabwe's Constitutional Court were unanimous that criminal defamation is unconstitutional, invalidating Section 96 of the country's Criminal Law and Codification Act.

Among its recommendations the report suggests that all states that have yet to do so should promptly abolish criminal defamation laws and ensure that adequate safeguards to protect the right to reputation are provided through civil law, while also ensuring that such safeguards do not permit the imposition of fines or damages awards so excessive as to imperil media freedom, including media diversity and plurality.

African governments should release promptly and unconditionally any journalists or writers detained or imprisoned on criminal defamation charges and discontinue all prosecutions on criminal defamation charges.

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