Africa: Judicial Independence Is Critical to Protecting Press Freedom in Africa

press release

In this opinion piece, Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre (SALC), discusses a recent High Court of Lesotho (sitting as a Constitutional Court) judgment which declared the offence of criminal defamation unconstitutional. She takes the opportunity to also reflect more generally on the extent to which judiciaries have created the space for constitutional jurisprudence to be exercised in a manner that facilitates social transformation.

One of the enduring legacies of colonialism is the creation of fairly uniform Penal Codes throughout our continent. Whilst some countries have been robust in reforming their criminal laws, others have been reticent to remove some archaic offences, especially when these offences protect the government from criticism. Given the imperatives of rights protections enshrined in national constitutions and the African Charter on Human and Peoples' Rights, courts in Africa have gradually started to explore the extent to which some criminal offences can comfortably co-exist with human rights provisions. A few courts have recently had to grapple with the question whether the offences of criminal libel/defamation, publishing false information and sedition justifiably limit the right to freedom of expression. The diverse findings of these courts provide us with an important opportunity to reflect on the extent to which judiciaries have created the space for constitutional jurisprudence to be exercised in a manner that facilitates social transformation.

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