In a ruling that redefines the limits of free speech in Malawi, the High Court, sitting as a Constitutional Court, has struck down section 200 of the Penal Code, effectively decriminalizing defamation in the country.
The case was brought forward by political commentator Joshua Chisa Mbele, who challenged the constitutionality of the provision under which he was facing criminal defamation charges.
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Mbele argued that section 200 infringed on his right to freedom of expression and contravened Malawi’s obligations under regional and international human rights law.
The panel of Justices, Chifundo Kachale, Fiona Mwale, and Mzondi Mvula, found that criminal defamation laws were a disproportionate means of protecting reputation and had a chilling effect on public discourse.
The court held that civil remedies offer a more appropriate and constitutionally sound alternative.
“The right to freedom of expression is a foundational value in Malawi’s constitutional democracy. Criminal sanctions are not the least restrictive means for protecting reputation, especially where civil remedies are available,” reads the ruling.
Reacting to the ruling, Media advocacy group MISA Malawi welcomed the ruling, calling it a monumental step for press freedom and democratic accountability.
“For decades, criminal defamation laws have been used to muzzle journalists and critics. “This decision brings Malawi in line with democratic norms and opens the door for more robust civic engagement,” said MISA Malawi Chairperson Golden Matonga in a statement.
However, legal expert Dr. Sunduzwayo Madise cautioned against misinterpretation of the ruling, noting that defamation as a legal concept still exists in Malawi, only now as a civil, not criminal, matter.
“You can no longer be arrested or imprisoned for defamation. But if someone believes they have been defamed, they still have the right to sue in a civil court for damages. The law hasn’t abolished defamation, it has simply removed the criminal route,” he said.
Dr. Madise told Nthanda Times that the ruling should not be seen as a license to defame others without consequences.
The now-defunct section 200 previously allowed for imprisonment of individuals found guilty of publishing or expressing defamatory content through print, writing, or other media.
The Court found its broad language and punitive nature incompatible with constitutional guarantees under section 35.
No further prosecutions will be allowed under the voided law, and each party in the case was ordered to bear its own legal costs.
