On 12 June 2014,
in Judgement No. CC02-14, this Court held that section 96 of the Criminal Law
(Codification and Reform) Act [Chapter
9:23] was inconsistent with the freedom of expression guaranteed by section
20(1) of the former Constitution. Furthermore, the Court found that the
applicants had discharged the onus of showing that the impugned provision was
not reasonably justifiable in a democratic society within the contemplation of
section 20(2) of the Constitution.
Consequently, in
accordance with section 24(5) of that Constitution, the Court issued a rule nisi calling upon the Minister of
Justice, Legal and Parliamentary Affairs (the Minister) to show cause why section
96 of the Criminal Law Code should not be declared to be in contravention of section
20(1) of the Constitution.
On 21 July 2014,
the Minister duly filed his responding affidavit. He averred that he had no
cause to oppose the intended declaration and that the Court should proceed to
finalize the matter as it deemed fit. On the return day, counsel for the
Minister reiterated the position taken in the responding affidavit and
consented to the confirmation of the rule nisi.
At the close of
submissions by counsel, the Court confirmed the rule nisi. We further indicated that an appropriate declaratory order
would be issued in due course.
In the result:
1. It is declared
that section 96 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is inconsistent with
and in contravention of section 20(1) of the former Constitution.
2. It is ordered
that the prosecution of the applicants in respect of the charge of criminal
defamation, being Count 2 in the proceedings under CRB No. 8020-21/11, be
permanently stayed.
3. There shall be no order as to costs.
