By Okechukwu Nwanguma
In a historic ruling that affirms the primacy of free speech in a democracy, the Constitutional Court of Malawi on July 16 declared Section 200 of its Penal Code—criminalising defamation—unconstitutional.
The court’s decision rightly affirmed that while the protection of individual reputations is important, the use of criminal sanctions—especially imprisonment—to police speech is an excessive and disproportionate limitation on the right to freedom of expression.
This is a progressive step that stands in sharp contrast to the situation in Nigeria, where defamation remains both a civil and criminal offence. Worse still, Nigeria has witnessed an alarming trend: the growing misuse, abuse, and weaponisation of laws—most notably the Cybercrimes (Prohibition, Prevention, etc.) Act 2015—to harass, detain, and silence journalists, whistleblowers, activists, and ordinary citizens for expressing critical opinions.
The Malawi court’s decision came after activist Joshua Mbele challenged the constitutionality of criminal defamation following charges against him for making remarks about a government official. The court found that such laws have a chilling effect on public discourse, stifling legitimate criticism and undermining democratic engagement. It noted the global shift—especially across Africa and the Commonwealth—toward decriminalising defamation and strengthening media freedom.
In Nigeria, however, outdated laws and repressive tactics remain entrenched. According to Sections 373–375 of the Criminal Code and Sections 391–395 of the Penal Code, criminal defamation is punishable by fines, imprisonment, or both. But beyond these colonial-era provisions, it is the vague and expansive language of Section 24 of the Cybercrimes Act that now poses the gravest threat to freedom of expression. The provision—ostensibly designed to protect against cyberstalking—has been repurposed to target dissenting voices, with police and state actors exploiting it to arrest and detain critics on frivolous or politically motivated charges.
The growing list of victims includes journalists, comedians, bloggers, student activists, and citizens who dared to speak truth to power—often detained without trial or subjected to lengthy, costly court battles. The law has become a tool of intimidation—a 21st-century SLAPP (Strategic Lawsuit Against Public Participation)—meant to exhaust, rather than secure justice.
Legal experts, rights groups, and international organisations like the Committee to Protect Journalists (CPJ) have consistently raised the alarm. As Professor Jibrin Ibrahim aptly noted, “All laws that support criminal defamation in Nigeria’s criminal jurisprudence should be immediately repealed.”
Indeed, the continued criminalisation of defamation in Nigeria not only contravenes international human rights norms but also violates the Nigerian Constitution, which guarantees the right to freedom of expression under Section 39. The courts must rise to the occasion—like their Malawian counterparts—to affirm that the antidote to falsehood is not prison but more speech, and that public officials are not above criticism.
Nigeria must urgently reform its legal framework to decriminalise defamation and repeal or amend sections of the Cybercrimes Act that are prone to abuse. Moreover, authorities must refrain from using the machinery of the state to muzzle the press or hound critics. Without a free and vibrant media space, democracy cannot thrive.
Malawi has demonstrated courage and clarity in aligning with democratic values. Nigeria must now ask itself: Will we continue down a path of repression, or will we embrace a future anchored in rights, accountability, and robust public discourse?
Mr Okechukwu Nwanguma is a human rights activist and Executive Director of RULAAC. He writes from Lagos State.
