SALC: Lilongwe, Malawi – On 17 December 20204, the Malawi High Court will consider a challenge to the offence of criminal defamation under section 200 of the Penal Code. This challenge, presented before a Constitutional Court, aims to align Malawi’s Penal Code with its constitutional and international obligations to protect the right to freedom of expression.
The challenge stems from charges against Joshua Chisa Mbele, accused of defaming the then-Army Commander. While the constitutional case does not question the truthfulness of the alleged defamation, it raises significant concerns about the constitutionality of using criminal sanctions to restrict speech and whether criminal sanctions are a suitable response to reputational harm.
Mbele is represented by Wesley Mwafulirwa of Kawelo Lawyers, supported by SALC under the Global Campaign to Decriminalise Poverty and Status.
Under international law, restrictions to freedom of expression must meet strict criteria: They must be lawful, necessary, proportionate and aim at legitimate objectives. Various regional and international human rights mechanisms have cautioned against using custodial sentences and the use of the offence to discourage legitimate public debate.
“This case presents significant implications for democracy and human rights in Malawi,” stated Melusi Simelane, SALC’s Civic Rights Programme Manager. “The criminalisation of defamation enables powerful individuals to stifle dissent. In contrast, civil remedies protect reputations without hindering free expression, essential for accountability and democracy.”
Freedom of expression is essential to open and democratic societies. Criminalising defamation jeopardises this freedom and undermines the citizenry’s civic duty to hold power to account.
A ruling is expected in January 2025.
For media inquiries, please contact:
Name: Melusi Simelane
Position: Civic Rights Programme Manager
Email: melusis@salc.org.za
