Criminal Defamation Outlawed
…Tlali Kamoli’s bid to have Lesotho Times publisher jailed collapses
The Constitutional Court (CC) has outlawed the offence of criminal defamation in a major victory for Lesotho’s media and the country in general.
The CC’s scathing judgment against provisions of the Penal Code which criminalise defamation means Lesotho becomes only the second southern African country after Zimbabwe to eliminate criminal defamation from its statutes.
The CC’s decision has been hailed across the world as a major victory for freedom of expression and the press. It is a major boost in the quest for greater media freedoms in Lesotho and across Africa where authoritarian regimes still rely on criminal defamation to suppress dissent.
The CC’s judgment means that a bid by former Lesotho Defence Force (LDF) Commander Tlali Kamoli to have the publisher of the Lesotho Times, Basildon Peta, jailed over a satirical article carried by the newspaper automatically collapses.
Several other cases in which various individuals and institutions were being charged for criminal defamation can no longer proceed as well. For instance, the Editor in Chief of MoAfrika FM, Ratabane Ramainoane, who is currently in court on criminal defamation over his radio broadcasts against the police and security agencies can no longer be prosecuted. Attempts to charge Teboho Mojapela, the leader of the Socialist Revolutionaries (SR) with criminal defamation over remarks he made against First Lady Maesaiah Thabane can no longer be pursued in light of the judgment.
Mr Peta was charged in his capacity as publisher of the Lesotho Times in July 2016 after Lt-Gen Kamoli complained that a satirical column in the newspaper, which goes under the moniker ‘Scrutator’, had defamed him.
Scrutator’s satirical parody in the 23rd -29th June 2016 edition of the Lesotho Times had claimed that there was a joke doing the rounds that Lt-Gen Kamoli had stormed a cabinet meeting and ordered the-then Prime Minister Pakalitha Mosisili to halt proceedings. Lt-Gen Kamoli had then ordered all ministers to remove their vests and shirts and perform 100 push-ups each to prove that he was the real man in charge of Lesotho and not Dr Mosisili.
Immediately after publication several Lesotho Times journalists were arrested and questioned. Mr Peta was summoned from Johannesburg to Mabote Police Station where he was questioned by over a dozen heavily armed police officers and military police officials. The police officials complained that Lt-Gen Kamoli had been seething over the article. They also demanded to know who Scrutator was.
Mr Peta tried to explain in vain that Scrutator was a column that used humour and satire in its commentary of public officials. The column Lt-Gen Kamoli had complained of had itself explained that the story of him halting cabinet was just a satirical parody to underscore his perceived power in government. Scrutator was written by a female journalist but disclosing her identity would defeat the purpose of the column. But the huge contingent of police would have none of it whatsoever. At the end of the day long interrogation, Mr Peta was hauled to court where he was charged and released on M50 000 plus bail and surety.
But more ominously, just a week after he was charged and had left for South Africa where he is domiciled, a group of men waylaid Lesotho Times editor Lloyd Mutungamiri and brutally shot him as he opened the gate of his Upper Thamae home in Maseru. Mr Mutungamiri narrowly escaped death but suffered severe facial injuries that have kept him out of work since. He had to undergo extensive reconstruction surgery after his lower jaw was shattered by a bullet.
Five LDF officers, who worked under the command of Lt-Gen Kamoli are now in police custody over the attempted murder of Mr Mutungamiri.
The five suspects are Military Intelligence Commander, Brigadier Rapele Mphaki (47); Colonel Khutlang Mochesane (57), Mahanyane Phusumane (37), Nyatso Tšoeunyane (41) and Maribe Nathane (35).
Lt-Gen Kamoli himself has not been charged over the same but the Africa Media Holdings, the owners of the Lesotho Times, have declared that they hold him directly responsible for the attempted murder. The arrested soldiers could not have acted without his explicit approval in as much as those who killed his predecessor, Maaparankoe Mahao, could never have acted without Lt-Gen Kamoli’s sanction.
Mr Peta subsequently challenged the constitutionality of criminal defamation arguing that even Robert Mugabe’s rogue state in Zimbabwe had outlawed it.
In a unanimous judgment this week, a full bench of the High Court, sitting as the Constitutional Court (CC), struck off Section 104 of the Penal Code Act 6 of 2010 and its ancillary sections 101, 102 and 103 which provide for criminal defamation as being inconsistent with section 14 of the constitution which guarantees freedom of expression.
Section 104 of the Penal Code provides that a person who publishes defamatory matter concerning another person commits the offence of criminal defamation. The section extends the protection of criminal defamation to deceased persons. Mr Peta submitted that the offence constituted an unjustifiable limitation of the right to freedom of expression. The Court held that criminalising defamation has 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.
Judge Moroke Mokhesi authored the main judgment while Justices ‘Maseforo Mahase and Teboho Moiloa concurred. The judges declared that criminal defamation had no place in a democratic society. The offence sought to criminalise journalists for performing their duties resulting in their self-censorship to the detriment of society’s right to be kept well informed.
The CC rejected the judgment of South Africa’s Supreme Court of Appeal in the case of State vs Hoho, which upheld the crime of criminal defamation in that country.
The CC condemned criminal defamation as not only in violation of Lesotho’s constitution. It also violated several international covenants on the protection of human and civil liberties which Lesotho was party to.
The CC said it was more persuaded by the decision of Zimbabwe’s Constitutional Court which outlawed criminal defamation.
Worse still, Lesotho’s criminal defamation law was unconstitutional as it sought to even criminalise satire. The judgment acknowledged the Scrutator column’s role in satirizing current affairs in Lesotho by using humour, irony and exaggeration.
The judges ruled that by virtue of the fact that there was an inherent value to the individual and society as a whole when there was diversity of ideas and opinions, freedom of expression was not only applicable n to information or ideas that were favourably received or regarded as inoffensive. It was also applicable to information and ideas that “offend, shock or disturb”
“Such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society…,” ruled Judge Mokhesi.
The judge defended the use of satire as a form of expression protected by Lesotho’s constitution.
“Satire as a form of artistic interrogation is protected by section 14 of the constitution,” Judge Mokhesi stated.
“In its robust interrogation of the topical issues the press is allowed latitude to employ some measure of exaggeration or provocation. It (the press) can rightly be sarcastic, ironic, humorous and satirical in its commentary…” the judgment said in apparent defence of Scrutator.
“In my view, by criminalising satire, the (Penal Code) Act impinges upon the freedom of expression more than is necessary in a practical sense in a democratic society…” ruled Judge Mokhesi.
“Criminalising defamation has a chilling effect on journalistic freedom of expression. Fear of potential criminal sanction for reputational incursion may result in media practitioners doing what is known as self-censoring. The corollary of this self-censoring is to stop the flow of information, leaving the public less informed about the goings-on in the government.”
The judge also reminded public officials like Lt-Gen Kamoli that they enjoyed less protection from defamation and satire and should display a high degree of tolerance to criticism.
“Any person, by accepting public office inevitably and knowingly lays himself open to close scrutiny of his every word and deed….and he must consequently display a greater degree of tolerance,” read the well-researched judgment which quoted extensively from other legal sources on the importance of freedom of expression.
The CC noted that the provisions of the Penal Code governing criminal defamation were so vague, over broad and over-arching that any statement against another could be deemed criminally defaming. 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. While there was merit in protecting the reputations of dead persons, the Penal Code provisions were so overarching in that they did not have any limiting features built in them to protect dead people’s reputations while also promoting freedom of expression.
The Minister of Law, Constitutional Affairs and Human Rights, the Attorney-General and the Director of Public Prosecutions who were cited as the first, second and third respondents respectively had argued that the criminal defamation law should be upheld because it had long been part of Lesotho’s laws. Criminal defamation had also been upheld by South Africa’s Supreme Court of Appeal in the case of S vs Hoho. However, the CC rejected all these arguments.
Mr Peta’s lawyers had argued that the S v Hoho ruling was never tested by South Africa’s Constitutional Court which in all likelihood would have overturned it.
Judge Mokhesi ruled that civil remedies were best suited for redressing any reputational harm from any alleged defamatory material. In other words, any person aggrieved by a publication could sue for civil damages. There were other mechanisms of redressing reputational harm in the context of published statements by asking the concerned publication to withdraw any offending remarks.
Advocate Gilbert Marcus SC, assisted by Advocate Isabel Goodman at the instruction of Neil Frazer of Webber and Newgidate represented Mr Peta and the Lesotho Times. All of the government’s three respondents were represented by Advocate Gareth Leppen.
The judgment has been widely welcomed around the world with civic bodies from the Media Institute of Southern Africa, the Committee to Protect Journalists to Amnesty International hailing it as a major victory for press freedom.
“We commend the Lesotho Constitutional Court bench for its brave decision, which makes a significant contribution to freedom of expression jurisprudence in the region,” said Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre (SALC), which supported the court case.
“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.”
On his part, Mr Peta said he was thrilled with the judgment.
“This is a major victory not only for the media in Lesotho but for the entire country. Freedom of expression is the pillar of all other freedoms in any society. When freedom of the press (expression) is under siege, then all other freedoms are compromised.
“It’s unfathomable that Kamoli wanted me jailed for a mere joke cracked to outline his behaviour at the height of his power as LDF commander…..I shudder to think what it was like for the soldiers he commanded to work under such a humourless man.
“But even more worrying for me is that my colleague Mutungamiri was nearly murdered for satire on Kamoli. We can only pray for more justice over those who wanted to kill the editor”.