Criminal defamation laws have no place in democracy

Global writers’ group PEN International is vigorously stepping up its campaign against the use of criminal defamation and "insult" laws in Africa.

The campaign, which is a few years old, is being waged by PEN SA, PEN International and PEN centres in Ghana, Sierra Leone, Uganda and Zambia.

Making defamation a crime introduces disproportionate penalties for expressing critical opinion or for publishing allegations or facts about the abuse of power or malfeasance among public officials.

It often severely restricts a writer’s ability to expose malpractice for fear of a criminal charge, a prison sentence and a long-term criminal record. This has the effect of criminalising the routine work of journalists.

Up to now the PEN campaign, which has the support of the UN Democracy Fund, has involved research by PEN on the stifling effects of the use of these laws in their countries.

A case study on the impact in Ghana of the repeal of criminal defamation laws in 2001 has also been examined.

The report, Stifling Dissent, Impeding Accountability: Criminal Defamation Laws in Africa, released this week, found that the threat of criminal sanctions deters media investigations into and reporting of issues that governments consider sensitive or embarrassing — such as high-level corruption, official malpractice or law-breaking — thereby facilitating official secrecy, and undermining transparency and accountability.

In some cases, where journalists, editors or publishers have refused to be cowed into self-censorship, they have been subjected to arrest, detention, prosecution and long drawn out trials, and sometimes imprisonment for months or even years, leading to a culture of fear.

In SA, the report found that despite few charges of defamation brought against journalists, there is some indication that the presence of the law on the statute book has a chilling effect on journalists who are aware of it, with several openly acknowledging that they self-censored and edited out material they considered risky, while recognising that this could result in the publication of distorted information. They attributed their self-censorship partly to the high legal costs of defending themselves and their newspapers against possible defamation charges, possibly leading to their newspaper’s closure.

This has also prompted some publishers and managers to become more acutely aware of the legislation and its potential impact on the bottom line, resulting in unacceptable interference by owners in editorial conduct.

In the past year the campaign focus has been broadened to include the Pan-African Parliament, which in May 2013 nailed its press freedom colours to the mast by issuing the powerful Midrand Declaration on Press Freedom in Africa.

This cited the adoption by the World Association of Newspapers (WAN-IFRA) in Cape Town in 2007 of the Declaration of Table Mountain, which calls for the repeal of criminal defamation and "insult" laws in Africa.

Many countries retain these laws despite clear calls by institutions such as the African Commission on Human and Peoples’ Rights, for states to repeal the laws on the grounds they "constitute a serious interference with freedom of expression and impede the role of the media as a watchdog".

In addition, the African Court of Human and Peoples’ Rights, whose judgments are binding on African Union member states, handed down a judgment in 2014 in a case against the Burkina Faso government brought by editor Lohé Issa Konaté, who had been imprisoned for a year on a criminal defamation charge. The court, in its first judgment on a free speech issue, was very firm in rejecting the conviction of Konaté.

The court ruled that imprisonment for defamation violated the right to freedom of expression and that such laws should be used only in restricted circumstances. It ordered Burkina Faso to change its criminal defamation laws — like those in many African countries, a relic of colonialism and incompatible with an independent, democratic Africa because they violate a core civil and political right and restrict and deter debate on matters of public interest.

Burkina Faso removed imprisonment for defamation.

Strategic litigation cases in Kenya and Zimbabwe have also been used to have courts declare criminal defamation unconstitutional in both countries.

In 2015 hope rose among journalists and writers in SA when the ANC declared it would repeal SA’s criminal defamation law. In addressing a workshop in his capacity as head of policy, Minister in the Presidency Jeff Radebe said: "A growing democracy needs to be nourished by the principles of free speech and the free circulation of ideas and information. Criminal defamation detracts from these freedoms. No responsible citizen and journalist should be inhibited or have the shackles of criminal sanction looming over him or her."

He said the ANC considered criminal defamation "unconstitutional and inimical" to democratic development, and it was high time criminal defamation was "eradicated" from South African law. He spoke of "spearheading" legislation through Parliament.

Subsequently, the government published the Judicial Matters Amendment Bill, 2016, which provided for the repeal of the law. It specifically recognised the "chilling effect" of criminal defamation and "insult" laws, particularly on journalists. It referred to a 2010 resolution African Commission on Human and Peoples’ Rights declaring such laws "a serious interference with freedom of expression" and statements by other authoritative bodies calling for the abolition of criminal defamation.

The government said it would put the bill before Parliament in May 2016, but failed to do so, saying the minister of justice had questioned aspects of it, suggesting it did not have the full approval of the ANC leadership.

Later the ANC said the repeal clauses would be included in a new bill for the Prevention and Combating of Hate Crimes and Hate Speech — causing disquiet because aspects of this bill are seen as threatening freedom of expression, free speech and media freedom.

South Africans are left to hope that continued advocacy and campaigning will inspire the ANC to carry out its promise. It is also hoped that other African governments will put into action the report’s call for the immediate abolition of criminal sanctions for defamation and the release of all journalists imprisoned under these laws.

• Louw is a former editor of the Rand Daily Mail and vice-president of PEN SA. A contribution by Lianna Merner, PEN International’s Africa programme co-ordinator, is included.