I may not approve of what you say, but I am prepared to defend to the death, your right to say it. This is a famous expression that may, depending on the text, be expressed in different words, but it boils down to one common denominator, life itself may be sacrificed in defence of the right of expression, that is how sacrosanct the ability of man to freely express opinions and share information is. It is in the context of this understanding that we shall attempt to analyse the recently decided case of Mergence investment v Lesotho Tribune.
The ability of man to communicate is perhaps one of the cornerstones of survival, communication helps in sharing ideas, bringing different perspectives on issues, challenging conventional wisdom and to assist decision makers to be well informed before making decisions, the ability for man to express himself has led to advancements even on the fields of science and technology. While certainly not exhaustive, in a nutshell, these considerations make it fundamental for the right to freedom of expression to be protected.
It must be conceded that just like any right, it must have certain restrictions and limitations in order to ensure that the freedom to express is not used to violate the right of others to their dignity and privacy both fundamental human rights. There must be a well-balanced mechanism that will ensure that the right to freedom of expression is exercised within the boundaries of protecting the dignity and privacy of other citizen. This is the principle that was put to the test when Mergence investment approached the High Court seeking certain orders against Lesotho Tribune, the Court had to draw the line between the right to freedom of expression and the right to dignity and decide whether Lesotho tribune had crossed the proverbial line.
The brief factual synopsis is that, Lesotho Tribune had made a publication stating that they have evidence that Mergence and one Semoli Mokhanoi both involved one way or the other in managing the affairs of the Public officers defined contribution pension fund, had essentially captured the fund and through an elaborate maze of companies were benefitting at times in situations where there are glaring cases of conflicts of interest. Lesotho tribune promised to run a series of articles on this subject to bring to light what was happening.
Worried that the publications would damage its reputation, Mergence and Semoli approached the High Court on urgent basis, they sought that Lesotho Tribune be interdicted from any further publications, and finally that the newspaper should be shut down for failure to comply with the printing and publishing Act. The duo instituted another lawsuit seeking millions in damages for the alleged defamation. Lesotho Tribune contested the claims fiercely.
Firstly, the Court had to deal with whether the applicants can obtain an interdict from publication of material that they are not aware of. In essence the applicants claimed that Lesotho Tribune has already published material that they consider defamatory and that they intend to publish more and that in defence of their dignity, the said future publications ought to be stopped. Secondly the Court had to deal with whether Lesotho Tribune was in violation of the Printing and Publishing Act and consequently whether it should be shut down.
In its defence, Lesotho tribune stated that all material that had been published and that which will follow is not defamatory at all, further that even if it was defamatory, such defamation was legally excusable because the publications were both true and in the public interest. The Tribune further stated that the claim that it has violated the printing and publish Act is an accusation of a crime and should not be entertained by the court sitting in its civil jurisdiction, if indeed a crime was committed Semoli should report the matter to the police and follow the due criminal process, it contended further that the Act itself provided that any publisher who infringes the said law must be prosecuted and a punishment of a fine or imprisonment handed down. In the circumstances even if it had violated the criminal statute, the appropriate remedy was that which was provided by the Act.
The High Court evidently found that the case of the applicants was without merit at all and proceeded to dismiss it with costs. It could not in the first place interdict speech that is not placed before court. Judges may be wise and knowledgeable in legal principles, but they do not have a crystal ball to look into the future to determine whether future publications will be defamatory. In essence the court refused to interdict the intended publications by Lesotho Tribune.
On the issue of whether the newspaper was operating in violation of the law, and consequently whether it must be shutdown, the High Court again dismissed this claim, if at all there is a suspicion of a crime there is no reason why the available criminal remedies would not be sufficient to remedy the violation. The applicant could not explain why they have failed to report this to the police or at least the registrar of societies, more so when the law prescribes what should happen in the event of default.
Ultimately the court considered that indeed the matters relating to the running of the Pension fund are matter of public interest. All public officers that are permanent and pensionable have interest in the fund, further, the Government through tax payers’ contributions, contributes to the pension fund, as such the management of such funds is a matter of public interest. Further, the public must be informed at all time with information relating to how their affairs are administered. The ability of the newspapers to freely publish is invaluable in a liberal society grounded on the protection of fundamental rights. I must hasten to mention that just because the application was dismissed with costs does not in any manner affect the pending litigation for claims for defamation instituted by Semoli and Mergence.
The tension between the right to freedom of speech and the right to dignity is as old as old gets. It remains a thorn even in the most advanced democracies, in the United States of America the Government still considered Julian Assange a spy for publishing some of the most damning information relating to communication between diplomats and some of the atrocities committed by the United States Army around the world. Clearly the said publications were true and of public interest, but he is facing criminal charges and has been in prison for years.
As Basotho we can only be glad that in the final analysis our Courts have consistently upheld the freedom of expression and have made judgements that advance this sacrosanct principle, key amongst them being the judgment of the High Court repealing the offence of criminal defamation. These judgments ensure that we abide by the long celebrated adage that, even if I may not agree with you, I have a duty to defend your right to say it.
