Judgment No CCZ 2/14 16 Const. Application No CCZ 78/12 CONCLUSION Having regard to all of the foregoing, I take the view that the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect. Moreover, there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. In short, it is not necessary to criminalise defamatory statements. Consequently, I am satisfied that the offence is not reasonably justifiable in a democratic society within the contemplation of s 20(2) of the former Constitution. Accordingly, it is inconsistent with the freedom of expression guaranteed by s 20(1) of that Constitution. FREEDOM OF EXPRESSION UNDER THE NEW CONSTITUTION As I have observed at the outset, the principal issue for determination in casu is the constitutionality of criminal defamation under the former Constitution. What has not and need not be considered for present purposes is the validity of that offence within the framework of the new Constitution. What I would simply note at this stage is that the freedom of expression and freedom of the media as secured by s 61 of that Constitution are framed differently in several material respects. Of particular significance is subs (5)(c) which expressly excludes malicious injury to a person’s reputation or dignity from the ambit of the freedom of expression and freedom of the media guaranteed by subss (1) and (2). Also relevant is s 51 which declares that every person has inherent dignity and the right to have that dignity respected and protected.