Criminal defamation

Criminal defamation is no crime: Celebrating freedom of speech

Criminal defamation means the false publication of something that is defamatory about another person without having any regard to whether it is true or false.  A statement, whether oral, written or otherwise, is defamatory if it has the effect of exposing another to hatred, ridicule or contempt; or lowering the claimant in the estimation of right thinking members of society.

Freedom of expression, which goes hand in hand with freedom of speech, is an inherent human right which is fundamental in every democratic state. Under our defending civic space series, we have discussed freedom of expression and the relevant laws under which it is stated. It is agreed that the freedom of expression is not an absolute right that it is limited to the extent where another person’s rights begin. So, one may enjoy one’s freedom of expression without hurting the dignity of another person.

That is why one who freely expresses himself about another person through written words, art or music may have an action brought against him or her for defamation.

Whereas a person who is defamed has the option of suing for damages in a civil court, the law makes provision for criminal charges being levied against the defendant in a defamation case. But are criminal charges for defamation warranted?

It looks like a clear case of wastage of public resources to charge a citizen with criminal defamation, and to imprison him should he be found guilty. To determine how much public resources are put to waste through the prosecution of criminal defamation, one should look at the other option available to punish the offender (a suit for damages in civil court) and the purpose of criminal law. How does the public benefit from the imprisonment of a person charged with criminal defamation? Compare it with the benefit to the public if a person is charged and convicted of murder.

Undoubtedly, criminal defamation is meant to stifle freedom of expression by employing state machinery to intimidate citizens. The use of the police and the criminal court, where one may be remanded and subjected to the rigors of seeking bail, to punish an alleged offender for defamation looks like an abuse of police power, an abuse of court process, and a wastage of public resources.

 “Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanor termed libel”

  • Section 194 of the Penal Code

The above is what is commonly known as criminal defamation. Soon when the law review body is updating our laws, the section will be (most probably) marked as repealed.

And for all those who have cases pending in court for criminal defamation, this is a defence which facilitates the dismissal of charges against you: – that following the decision of the court in Jacqueline Okuta and Jackson Njeru versus the Attorney General and Director of Public Prosecutions, it is unconstitutional to enforce this section (194) of the Penal Code.

On Monday, 6th Feb 2017, in the above petition by Okuta and Njeru, Justice Mativo ruled that:

“The chilling effect of criminalising defamation is exacerbated by the maximum punishment of two years’ imprisonment. This penalty is clearly excessive and disproportionate…Part and parcel of that role is to unearth corrupt or fraudulent activities, executive and corporate excesses, people who are dangerous to the society, and other wrongdoing that impinges upon the rights and interests of ordinary citizens…It is inconceivable that citizens, the media and civil societies could perform 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…Any continued enforcement under this section will be unconstitutional…I, therefore, find and hold that the petitioners have succeeded in demonstrating that the offence of criminal defamation is not reasonable justifiable in a democratic society, hence criminal sanctions on speech ought to be reserved for the most serious cases particularized under Article 33 (2) (a) -(d) of the constitution aim at protecting public interest”

A similar case, Lingens v. Austria, 8 July 1986, Application No. 9815/82, was decided by the European Court of Human Rights where it was held that (on Para. 44),

“the penalty imposed on the author … amounted to a kind of censure, which would be likely to discourage him from making criticisms of that kind again in future … In the context of political debate  such a sentence  would  be  likely to  deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog”

It therefore follows that the right remedy to a person who has a defamation case against another is a private suit, in a civil court. Damages given to the offended should not be excessive but proportionate to the harm suffered. The burden of proof would ordinarily lay with the plaintiff who has to prove that they have suffered injury.

It is cause to celebrate that our jurisprudence is developing standards to safeguard fundamental human rights. A free press, though often sabotaged, is one chain free. We must also remember the Honourable Ladies and Lords on the bench whose judgments safeguard human rights. To Justice Mativo, Viva!

And here’s to the freedom of expression!


This article appears in our weekly digital law magazine, The Deuteronomy Vol 2, Issue 2 of February 9th 2017

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