Criminal defamation and insult laws: a barrier to freedom of expression

Many African governments retain criminal defamation and insult laws (CDIL) which make it a crime to publish anything insulting. The result is restriction on freedom of expression, debate, political criticism and media reporting.

WHAT ARE CDIL?

In many countries around the world, including the majority of African nations, governments use laws that make it a crime to write or publish anything they consider defamatory (meaning damaging someone’s or something’s reputation). These laws are usually very broad, opening them to interpretation. Typically, defamation laws are used by political and business leaders to prevent journalists from reporting corruption in government departments. Making defamation a crime often introduces consequences for being critical of or reporting wrongdoings of the government.

Many of the CDIL used in Africa today were originally introduced to reinforce colonial rule and suppress demands for national independence. Instead of rejecting such laws, leaders of newly independent African states used them against their critics and opponents and undermined the media’s role as a critic of government.

HOW DO CDIL OBSTRUCT FREEDOM OF EXPRESSION?

CDIL’s criminal sanctions inevitably deter the media from reporting issues such as high-level corruption, official misconduct or lawbreaking. They facilitate official secrecy and undermine accountability. Many journalists have been arrested, detained, prosecuted, and sometimes imprisoned for reporting despite these laws. For example, in 2009 six Gambian journalists were each sentenced to two years in prison and a US$10,000 fine for criticising President Jammeh.

WHAT CAN BE DONE TO ABOLISH CDIL?

The move had an immediate and continuing positive impact, removing a serious threat against journalists and opening the space for free speech to flourish. Recent years have seen a movement in Africa towards reviewing CDIL. In 2007, and again in 2013, the Pan-African Parliament called for the repeal of CDIL and started a campaign for government change to allow press freedom in all five regions of Africa. In 2010, the ACHPR addressed the issue of CDIL; it pressed for the repeal of all CDIL in Africa.

There are reasons to be optimistic: in 2001 Ghana repealed its CDIL. This had a positive impact, removing a threat against journalists and opening a space for free speech. Moreover, court rulings in Kenya, Zimbabwe, and (this year) Lesotho have declared CDIL unconstitutional. The impact of these more recent developments may not yet be seen, but continued pressure on governments for the repeal of such laws has seen, and hopefully will continue to see, the gradual abolition of one of Africa’s greatest barriers to freedom of expression.

JESSE TRISTRAM

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