Explainer: Why defamation is a civil, not a criminal offence
In many jurisdictions, defamation is no longer a crime but a civil matter, enabling victims to seek compensation without risking free expression.
In 2017, the High Court declared criminal defamation unconstitutional, ruling that criminal sanctions were 'unnecessary and excessive in a democratic society'.
The court invalidated Section 194 of the Penal Code, which dealt with criminal defamation, saying it was a disproportionate measure for protecting reputations.
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The case centred on Jacqueline Okuta and Jackson Njeru, who faced charges under the section for posts published on a consumer protection Facebook page called ‘Buyer Beware,’ where Njeru acted as an administrator.
In his ruling, Justice John Mativo said Section 194 conflicted with the Constitution, stating that criminal defamation unjustifiably limits freedom of expression.
Justice John Mativo found the possibility of criminal proceedings and imprisonment of up to two years excessive and disproportionate, stifling public debate and scrutiny.
He ruled that while protecting reputations is important, it must not come at the expense of free expression in an open, democratic society.
So what is defamation?
Defamation involves publishing false statements that harm another’s reputation.
Traditionally, defamation was treated as a civil wrong (tort) and, in some cases, a criminal offence. However, modern human rights frameworks increasingly oppose criminalising defamation.
Criminal defamation laws often conflict with freedom of expression, creating a chilling effect on journalists, activists, whistleblowers and the public who fear reprisal.
Courts and international bodies now advocate resolving defamation through civil remedies, such as damages or apologies, rather than criminal penalties.
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