Abolition of criminal defamation and retention of scandalum magnatum in Lesotho

• Published in: African human rights law journal 2019, Vol.19 (2), p.743-762
• Main Author: 'Nyane, Hoolo
• Format: Article
• Language: English
• Subjects: Abolition; Constitution of Lesotho; Constitutional courts; Constitutional law; Criminal defamation; Criminal law; Defamation; freedom of expression; Freedom of speech; Human rights; Lesotho; Libel & slander; Retention; Scandalum magnatum
• ISSN: 1609-073X; 1996-2096
• DOI: 10.17159/1996-2096/2019/v19n2a9

The Constitutional Court of Lesotho in the case of Peta v Minister of Law, Constitutional Affairs and Human Rights struck down the provisions of the Penal Code relating to criminal defamation on the basis that they violate the right to freedom of expression as envisaged in section 14 of the Constitution. The purpose of this article is to analyse the ramifications of the abolition. The article contends that while the boldness of the Constitutional Court is lauded, the commitment of Lesotho to join the global abolitionist movement is doubtful as the vestige of scandalum magnatum remains on the statute books. As such, the country may have to undergo a comprehensive review of the laws hampering the full realisation of freedom of expression, including the Constitution itself. After analysing the key cases on criminal defamation and other ‘insult crimes’, the article recommends that all ‘insult criminal laws’ be repealed. The cases studied show that these crimes invariably have been used selectively to protect the ‘good image’ of people with political status, not ordinary citizens. The article analyses the development of criminal defamation in Lesotho and its ‘partial’ abolition through the Peta case, and discusses how Lesotho's judicial abolition of criminal defamation features in the broader global wave of abolition.