Malawi’s Historic Defamation Ruling: A Test of Responsibility

 

By Dr. Greenwell Matchaya, LLB, PhD

17 July 2025

 

In a major advance for democratic governance and constitutionalism, the High Court of Malawi, sitting as a Constitutional Court, has delivered a landmark ruling striking down Section 200 of the Penal Code, which criminalised defamation. The unanimous judgment, delivered in July 2025 by Justices Chifundo Kachale, Fiona Mwale, and Mzondi Mvula, affirms that the criminalisation of defamation unjustifiably infringes the right to freedom of expression as protected under Section 35 of the Constitution.

Importantly, this judgment should not be misread as a dismissal of the importance of dignity and reputation in society. Rather, it is a reaffirmation of constitutional values, chief among them, the right of all citizens to participate in open, informed, and critical public dialogue without fear of criminal sanction.

A Legal Milestone: Malawi’s Evolving Defamation Landscape

The case was brought by political commentator Joshua Chisa Mbele, who challenged the constitutionality of Section 200 following his arrest and pending prosecution for alleged defamatory remarks about a public official. He argued that the law stifled legitimate criticism and imposed a disproportionate restriction on free speech.

The Court agreed, holding that while protecting personal reputation is indeed a legitimate public interest, the use of criminal sanctions, especially imprisonment, is not necessary nor proportionate in a democratic society. The Court emphasized that civil remedies, such as lawsuits for damages, remain fully available and sufficient for redressing reputational harm.

 

Comparative Perspective: Aligning with South Africa

This decision brings Malawi into alignment with a growing number of democracies, including South Africa, that have shifted toward civil defamation frameworks grounded in proportionality and rights balancing.

 

Aspect	Malawi (2025 Ruling)	South Africa
Criminal defamation	Declared unconstitutional (Section 200 struck down)	Not actively enforced; largely abandoned in practice
Civil defamation	Remains enforceable as the primary remedy	Primary legal avenue for defamation
Key constitutional right	Section 35, Freedom of Expression	Section 16 – Freedom of Expression; Section 10 – Dignity
Legal doctrine	Emphasises proportionality and constitutional alignment	Balances dignity and expression through civil law
Notable cases	Mbele v DPP & AG (2025)	Khumalo v Holomisa (2002); Dikoko v Mokhatla (2006)
Public implications	Expands space for free media and civic discourse	Protects expression, with limits on reputational harm

This alignment reflects Malawi’s growing leadership in Southern Africa in promoting human rights and constitutional development through the judiciary.

 

Rights Must Be Matched by Responsibilities

While the ruling removes criminal penalties for defamation, it does not remove accountability. The law of civil defamation remains active and enforceable. Those who publish false, malicious, or reckless statements that unjustifiably damage another person’s reputation:

• Can still be sued for damages in a civil court;
• May face injunctions or legal orders to retract harmful content;
• Will be subject to public and legal accountability under the rule of law.

In short, the decision does not legalise slander, hate speech, or defamation. Instead, it affirms that constructive, good-faith public discourse is essential to a healthy democracy, while also recognising that legal mechanisms must be used wisely and proportionately to protect individual dignity.

A Shared Responsibility: Media, Citizens, and State

This ruling opens new space for vibrant civic and media engagement, but it also imposes a duty on all citizens, including journalists, commentators, public officials, and social media users, to exercise their freedoms with restraint, integrity, and truthfulness.

It is also a testament to the Government of Malawi’s respect for judicial independence, its commitment to constitutionalism, and its record of engagement with regional and international human rights frameworks. The ruling provides an opportunity for the Executive and Legislature to modernise other legal provisions, ensuring full consistency with constitutional guarantees and Malawi’s international obligations.

Conclusion: A Milestone for the Rule of Law

The striking down of criminal defamation is more than a legal decision, it is a democratic milestone. It signifies a maturing democracy and legal system that is able to balance the protection of rights with the preservation of accountability.

As Malawi continues on its democratic journey, this judgment sends a powerful message: that freedom of expression is a constitutional promise, not a privilege, but one that must be exercised with care and respect for others. The rule of law must remain the anchor of public life.

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