Wednesday, May 23, 2018

Criminal defamation in Lesotho (herein of spring chickens)

And now for something completely different.

The Constitutional Court of Lesotho, in a landmark decision, has invalidated the statute making defamation a crime. The decision in Peta v Minister of Law, Constitutional Affairs and Human Rights and Others (CC 11/2016) [2018] LSHCONST 251 (18 May 2018), is available here. Excerpt:
Applicant is the owner and publisher of a popular weekly newspaper, the Lesotho Times. In the 23rd – 29th June 2016 issue of the same newspaper, he published an article headlined “Flicker of hope for my beloved kingdom…” This article appeared in a concomitant satirical section titled the ‘Scrutator’. The ‘Scrutator’ column satirizes current affairs in Lesotho by using humor, irony and exaggeration “to expose and criticise shortcomings of an individual or society.”

The article in issue related to the then-Commander of the Lesotho Defence Force, Mr Tlali Kamoli. The article detailed how Mr. Kamoli in an apparent show of power and influence, ordered Ministers and the then-Prime Minister to do ridiculous and plainly absurd things. In one respect it said:

“An interesting story had been doing rounds around Maseru, it goes like this. During one of his moody days, Tlali Kennedy Kamoli pitched up at a cabinet meeting unannounced. He then forced the chairman, Ntate Mosisili, to halt proceedings half-way through. The Premier dutifully complied.

The reason for Ntate Kamoli doing all this, the story goes, was because he wanted to show who is indeed the mighty King of this country. He wanted to prove where real power resides. King Kamoli then ordered all male ministers to remove their vests and shirts and move into the grounds of State House to each perform a 100 press ups.

Younger cabinet members like the ever-indefatigable Selibe Mochoboroane and Joshua Setipa quickly stripped off their vests, exposing their well aligned six packs. In less than a minute Mochoboroane and Setipa had each completed their hundred (100) press (push) ups! The older members of the cabinet struggled. Ntate Mosisili could not complete in the first minute but finished in the third. Ample proof that he is still a spring chicken and fit to be Prime Minister.” [Footnote omitted.]
The foregoing discussion has brought to the fore the deleterious effects of criminal defamation in section 104 read with sections 101, 102 and 103 of the Act. The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in section 14 of the Constitution. Furthermore, having concluded that criminal defamation laws have a chilling effects on the freedom of expression, and that, civil remedies for reputational encroachment are more suited to redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment on the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.” Having concluded thus, what remains is the relevant order that this court should make. In terms of section 22(1) (6) of the Constitution, this court “may make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21 (inclusive) of this Constitution”. Mr. [Gilbert] Marcus [attorney for the applicants] had argued that the only appropriate order in the circumstances of this case is to declare section 104 of the Act inconsistent with the Constitution and to strike it out. I am in full agreement that section 104 and its accompanying sections should be struck down altogether, this is in view of the fact that these sections are so inextricably linked, and further that, the crime of defamation has no place in our current Constitutional dispensation.
Moral of the story: you won't go to jail any longer in Lesotho for recounting stories that make the Defence Force Commander look silly. 

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