The High Court has struck a chord for information freedom by expunging criminal defamation from the statutes. Criminal defamation is a carryover from the old order, but which has since been upended and should not have a place in our laws. Historically, the law has been used to stifle press freedom and circumscribe the public’s right to information.
In theory and practice, it has been used to punish media practitioners and in so doing, curtail them from executing their mandate. Yet, media freedom and access to information are two key indicators of democracy. Free and vibrant media anchor democracy as they provide information that enables the citizens to make informed choices and hold their leaders to account. Conversely, lack of media freedoms undermines citizens’ enjoyment of various rights.
In his ruling, Judge John Mativo expressly stated the vital role of the media in governance, particularly underscoring the fact that they unearth vices such as corruption or fraud in society and in so doing, help to uphold public morality. They must never be curtailed from executing their mandate. Precisely, the Constitution has robust provisions on civil liberties and freedoms such as expression and information. Articles 33, 34 and 35 provide for freedoms of expression and the media and access to information. However, the Constitution puts caveats on the freedoms — spelling out the limits within which they are exercised.
Criminal defamation negates the freedoms enshrined in the Constitution. It is cruel, punitive and anachronistic. Clearly, such pieces of legislation should have been purged in the wake of the new constitutional order. Their continued application within our jurisprudence is anomalous. But other provisions still exist in the statutes that undermine media freedoms and the public’s right to access to information. The onus falls on the Attorney-General to send a draft Bill to Parliament to delete those laws that limit media freedoms and access to information. Courts must expand the frontiers of civil liberties and freedoms by purging those offensive laws.