Malawi High Court Declares Criminal Defamation Unconstitutional in Landmark Ruling

Malawi’s Constitutional Court has declared criminal defamation unconstitutional, strengthening free speech and setting a precedent for legal reforms that protect democratic discourse and media freedom.

Introduction

In a groundbreaking decision that reaffirms the fundamental right to free expression, Malawi’s High Court, sitting as a Constitutional Court, has struck down Section 200 of the Penal Code, which criminalized defamation. This historic ruling, delivered on July 16, 2025, marks a pivotal moment for press freedom, digital rights, and democratic participation in the southern African nation.

Background: Section 200 of the Penal Code

Section 200 of Malawi’s Penal Code provided for the criminal prosecution of individuals accused of defamation. Under this provision, any person who unlawfully published defamatory material—whether in writing, print, painting, or another form—could be subjected to criminal sanctions including up to two years’ imprisonment or a fine.

This section was often criticized for being vaguely worded and susceptible to abuse by public officials and political figures seeking to silence critics, journalists, and activists. Although civil remedies for defamation remained available, the criminal provision was frequently used to intimidate and prosecute dissenting voices.

The Case: A Challenge to Criminal Defamation

The constitutional challenge was initiated by political activist and social commentator Joshua Chisa Mbele, who faced charges under Section 200 following critical remarks he made online against a high-ranking government official. Mbele’s legal team argued that the criminalization of defamation infringed on his rights under Section 35 of Malawi’s Constitution, which guarantees the right to freedom of expression.

The case quickly attracted national and international attention, with legal experts, civil society groups, and media watchdogs observing the proceedings closely. At the heart of the challenge was the question: Can a democratic society justify the criminal punishment of speech that may offend, criticize, or damage reputations?

The Court’s Findings

In a unanimous decision, the panel of three judges—Justices Chifundo Kachale, Fiona Mwale, and Mzondi Mvula—declared Section 200 unconstitutional. Their ruling was based on several key findings:

Violation of Freedom of Expression: The Court found that criminalizing defamation placed a disproportionate limitation on freedom of expression. Section 35 of Malawi’s Constitution guarantees the right to express oneself freely, and the imposition of criminal penalties for defamation was deemed excessive and unjustified.
Availability of Civil Remedies: The Court emphasized that civil defamation laws provide sufficient recourse for individuals who believe their reputations have been damaged. Unlike criminal sanctions, civil remedies do not involve imprisonment and are considered more appropriate in democratic societies.
Chilling Effect on Public Discourse: The possibility of arrest and imprisonment for defamation had a chilling effect on journalists, activists, and ordinary citizens. The Court acknowledged that such fear undermines the ability of the public to hold those in power accountable.

Legal Reasoning

The judgment drew on both domestic constitutional principles and international legal standards. The judges cited precedents from other jurisdictions, including African countries such as Kenya, The Gambia, and Zimbabwe, where courts have struck down similar laws on defamation.

They also referenced Malawi’s obligations under international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to free expression and discourages criminal penalties for speech-related offenses except in the most extreme cases.

Implications for Free Speech and Democracy

The Court’s decision sets a powerful precedent in the region, positioning Malawi as a champion of democratic values and freedom of speech. By removing criminal defamation from its legal system, the country has aligned itself with progressive legal standards that emphasize civil accountability rather than criminal punishment for speech offenses.

This ruling not only enhances press freedom but also empowers citizens to participate in public discourse without fear of retaliation or arrest. It creates space for robust debate, criticism of public officials, and investigative journalism—key pillars of a healthy democracy.

Public and Civil Society Reactions

The ruling was met with widespread praise from journalists, media organizations, human rights groups, and legal practitioners. Civil society actors hailed it as a victory for free speech and constitutional governance. The Malawi Chapter of the Media Institute of Southern Africa (MISA) described the judgment as a “milestone in media freedom and public accountability.”

The Committee to Protect Journalists (CPJ) commended the decision and urged the government to ensure that similar repressive laws are reviewed and reformed. Legal aid organizations and civic education groups have called on Parliament to harmonize Malawi’s legal framework with the principles established in the ruling.

Read more analysis on this civil society response via Paradigm Initiative’s press statement.

Concerns and Remaining Challenges

Despite the significant victory, legal experts caution that other restrictive laws remain in Malawi’s statute books. Of particular concern is the Electronic Transactions and Cybersecurity Act, which contains provisions that criminalize “offensive communication” and “false news.” Critics argue that these laws could serve as substitutes for criminal defamation unless they too are reviewed and amended.

Furthermore, the implementation of the Court’s ruling will require training and policy changes within the police service, prosecution authorities, and the judiciary to ensure that Section 200 is not applied in future cases. Legal literacy campaigns will also be essential to inform the public of their rights under the new legal landscape.

Regional and Continental Significance

Malawi’s decision is consistent with a growing continental trend toward decriminalizing defamation. Courts in countries such as Uganda, Ghana, and South Africa have moved toward civil mechanisms to address reputational harm, recognizing the importance of free expression in democratic governance.

This shift is also supported by the African Commission on Human and Peoples’ Rights, which has repeatedly called on member states to repeal laws that criminalize speech and to foster environments that encourage open dialogue and dissent.

Conclusion

The Malawi High Court’s decision to declare criminal defamation unconstitutional is more than a legal milestone—it is a reaffirmation of the country’s democratic values. By prioritizing freedom of expression and aligning its laws with constitutional and international standards, Malawi has taken a decisive step toward a more open and accountable society.

However, this is only the beginning. True progress will depend on continued legal reform, political will, and societal engagement. The abolition of criminal defamation must be followed by broader efforts to safeguard press freedom, protect digital rights, and promote a culture of transparency and civic participation.

As Malawi paves the way for others in the region, its judiciary has sent a clear message: in a democracy, the power of words should not be met with prison bars.