The High Court sitting as a Constitutional Court has declared section 200 of the Penal Code of Malawi as unconstitutional.
Under Section 200 of the Penal Code, criminal defamation involves unlawfully publishing defamatory matter about another person with the intent to defame them, which can be done through print, writing, painting, or other means (excluding gestures or spoken words). A conviction can result in a fine, imprisonment not exceeding two years, or both
Delivering a ruling in an application which Joshua Chisa Mbele was challenging the constitutionality of the section which criminalized defamation, a panel of three judges found the section 200 of the Penal Code was in conflict with the right to freedom of expression under section 35 of the Constitution
In the application, Mbele argued that the provision infringed his right to freedom of expression under section 35 of the Constitution and was inconsistent with Malawi’s obligations under regional and international human rights law.
He made the application came amidst pending criminal proceedings against him for alleged defamatory statements concerning a public official.
The three judges, Chifundo Kachale, Mzonde Mvula, and Fiona Mwale applying principles of purposive constitutional interpretation and having regard to comparative and international jurisprudence, held that section 200 imposed a disproportionate and unjustifiable limitation on freedom of expression.
It noted that civil remedies for defamation provided a less restrictive and more proportionate alternative, and that the criminalisation of defamation, especially with the threat of imprisonment, had a chilling effect on public discourse.
“The right to freedom of expression under section 35 of the Constitution is a foundational value in Malawi’s constitutional democracy, subject only to limitations that are lawful, reasonable, recognised by international human rights standards, and necessary in an open and democratic society (section 44(2) of the Constitution).
“Section 200 of the Penal Code, which imposes criminal sanctions for defamatory statements, is not the least restrictive means available for the protection of reputation, given the adequacy of civil defamation remedies.
“The breadth of the section, its potential for arbitrary enforcement, and the deterrent effect of criminal prosecution on legitimate public discourse render it incompatible with constitutional guarantees.
“Comparative and regional human rights jurisprudence strongly supports the decriminalisation of defamation, favouring civil remedies as the appropriate legal response to reputational harm.
“Section 200 of the Penal Code is therefore unconstitutional and void for inconsistency with section 35 of the Constitution. The provision is struck down with immediate effect; no further prosecutions may be brought thereunder,” reads part of the ruling
The state opened a criminal defamation case against Chisa Mbele in 2022, following a Facebook post in which he alleged that former Malawi Defence Force (MDF) General Vincent Nundwe benefitted with money from suspected corruption businessman Zuneth Sattar.
