The recent ruling by the Constitutional Court of Malawi declaring criminal defamation unconstitutional has renewed conversations across Africa about the place of free speech in a democratic society.
At the heart of the decision was Section 200 of Malawi’s Penal Code, which prescribed criminal penalties for defamation. The court held that the law infringed on the right to freedom of expression and had a chilling effect on democratic participation.
EDITOR’S PICKS
EKO HOT BLOG gathered that the case was brought forward by political activist Joshua Mbele, who had faced criminal charges over remarks about a government official. In his petition, Mbele argued that the law was being used to silence dissent and shield public officials from legitimate scrutiny. The court agreed, noting that criminal defamation laws are prone to abuse and discourage open public debate.
Malawi now joins a growing number of African and Commonwealth countries that are moving away from criminalising defamation in favour of civil remedies. For many, this marks a step towards protecting the constitutional right to free expression and aligning national laws with international human rights standards.
In contrast, Nigeria still treats defamation as both a civil and criminal offence. Under Sections 373 to 375 of the Criminal Code and Sections 391 to 395 of the Penal Code, those convicted of criminal defamation can face imprisonment, fines, or both. The laws are broadly worded and give wide latitude for interpretation, raising concerns about misuse.
Defamation is often weaponised against Nigerian journalists
Legal scholars, journalists, and civil society actors have long argued that Nigeria’s defamation laws are outdated and repressive. According to Professor Jibrin Ibrahim, a political scientist and human rights advocate, “All laws that support criminal defamation in Nigeria’s criminal jurisprudence should be immediately repealed.” He adds that such laws do not meet international human rights standards and are often used to harass critics.
Indeed, in Nigeria, criminal defamation charges are frequently brought and wepaonised against journalists, whistleblowers, and activists, often by powerful individuals seeking to avoid public accountability. These cases are typically prolonged, costly, and draining, functioning as Strategic Lawsuits Against Public Participation (SLAPPs) intended to intimidate and silence.
For example, Daniel Ojukwu, an FIJ reporter, was essentially abducted by the Intelligence Response Team (IRT) of the Inspector General of Police for allegedly violating the 2015 Cybercrime Act in May 2024.
The police only revealed Ojukwu was held at the State Criminal Investigation Department (SCID), Panti, Lagos, three days after he was reported missing. He spent nine days in detention before his release.
The police spokesperson, Muyiwa Adejobi, said the journalist’s arrest was based on a petition written against him, accusing him of violating the Cybercrimes Act, a well-known law that the security agencies, especially the police, have constantly used to suppress press freedom.
Ojukwu’s specific sin was publishing a report that revealed how the Senior Special Assistant to former president Muhammad Buhari on sustainable development goals (SSAP-SDGs), Adejoke Orelope-Adefulire, was said to have paid N147 million to a restaurant for the construction of classrooms in Lagos.
In a statement at the time, FIJ Board of Trustees, Bukky Shonibare, likened Ojukwu’s abduction to draconian tactics that have no place in a democracy.
“The mischievous interpretation and hyper-application of laws, especially the Cybercrimes Act of 2015 which has now been amended, and the abuse of power and public institutions are all draconian tactics deployed to further shrink Nigeria’s fragile civic space. These tactics have no place in a democracy, where accountability and transparency in governance are essential,” the lawyer stated.
By maintaining criminal defamation laws, Nigerian state institutions threaten to undermine press freedom and stifle civic engagement. In a democracy, the right to criticise public officials and institutions is a cornerstone of transparency and accountability.
Legal scholars and civil society groups have longed argued that civil remedies for defamation, such as damages, offer a more balanced approach that protects individual reputations without suppressing free expression.
Decriminalising defamation does not mean allowing falsehoods to flourish unchecked, according to fresh speech advocates. It simply shifts the burden to civil courts, where truth, intent, and harm can be properly assessed without the threat of imprisonment. It is a recognition that in a democratic society, speech, even when offensive or controversial, should not be met with handcuffs.
FURTHER READING
As Malawi takes this bold step, observers say Nigeria faces a choice: cling to colonial-era statutes that criminalise speech, or reform its laws to reflect a modern, democratic ethos where ideas and critical speech are contested, not criminalised.
Philip Ibitoye is a Special Correspondent with EKO HOT BLOG. Click here to find daily analysis and critical insight on trending issues in Lagos and other parts of Nigeria.
Click here to watch the video of the week below:
