Lesotho Court declares criminal defamation offence unconstitutional

By Staff Reporter

The Lesotho Constitutional Court has declared the offence of criminal defamation unconstitutional.

In a landmark judgment released on Monday, the court further rendered the charge as with retrospective effect.

This is in a matter where in 2016 the Lesotho Minister of Law sued Lesotho Times owner  Basildon Peta for criminal defamation after after the newspaper published a satirical column, The Scrutator, relating to the then commander of the Lesotho Defence Force, Tlali Kamoli.

According to section 104 of the Lesotho Penal Code, a person who publishes defamatory matter concerning another person commits the offence of criminal defamation.

In his defence, Peta submitted that the offence constituted an unjustifiable limitation of the right to freedom of expression.

And a panel of three judges confirmed that the onus of proving that the impairment of a right was justified rested on the government.

Of concern to the Court was the over breadth of the offence, with a charge being possible even if no person other than the complainant became aware of the supposedly defamatory statement, and with the offence further extending to defamation of deceased persons.

The Court further held that the defence that a defamatory publication was for the public benefit was too vague and could lead, as in this instance, to cases where satirical comments were criminalised.

The Court held that criminalising defamation had a chilling effect on journalistic freedom of expression, resulting in self-censorship by journalists and a less informed public. The Court cited with approval calls by the African Commission and United Nations Special Rapporteur on Freedom of Expression which encouraged states to repeal criminal defamation laws.

The Court’s judgment followed in the footsteps of other African courts, including the ECOWAS Court, the Zimbabwe Constitutional Court and the Kenya High Court, which recently declared that the offence of criminal defamation violated the right to freedom of expression.

“We commend the Lesotho Constitutional Court bench for its brave decision, which makes a significant contribution to freedom of expression jurisprudence in the region,” according to Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre. “We are concerned by the ongoing use of criminal defamation laws against journalists and human rights defenders and hope that this decision will also send a message to other governments to reform their laws.”

Peta was represented by advocates Gilbert Marcus SC, Isabel Goodman and Webber Newdigate.

The case was supported by the Southern Africa Litigation Centre.