Law of Defamation in Commonwealth Africa

Jill Cottrell

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429837258
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

First published in 1998, this book is an exposition of the law of defamation as it applies in those countries (excluding South Africa). It discusses or refers to hundreds of cases from those jurisdictions, as well as many important precedents from England, analysing the law and discussing how far the courts have developed their own approaches to the law, and to what extent the law reflects the values of traditional society and customary law. It thus shows how the law is being used in a field which is both intensely political and reflects important social interests. Though directed mainly at legal practitioners, teachers and students, therefore, it would be of interest to the media – the defendants in the overwhelming majority of the cases-and to scholars in the social sciences.

1 Introduction

An effective way of punishing a person guilty of slander of serious consequences, is to make him walk through the town or village carrying a heavy stone in front of an officer of the court, who, at convenient halting-places, beats a gong: the guilty slanderer is compelled to recant his base falsehoods, and to confess his disgraceful behaviour, amid the sneers and jeers of the multitude. Sarbah (1904a), quoted in Kwaku v Addo (Ghana 1957) p. 310.

Against this vivid picture of liability for defamation in one African society we can place the cases which form the main focus of this book. These are civil cases under the imposed law, especially the common law imported from England, and the defamer will be required to pay a sum of money supposed to reflect the damage to the defamed; the affair is treated as a matter between the parties, not a community concern as in Fanti society; most strikingly, the civil law of defamation does little to require the recantation of defamatory statements.

Neither judges nor commentators feel as much satisfaction with the common law as Sarbah seemed to feel about customary law. In 1987 the Nigerian Law Reform Commission recommended that states should enact legislation incorporating the major changes in the English statutes, with one or two further changes, and that in the long run the law ought to be codified. The Ghanaian Law Reform Commission produced a report, and the Zambian Commission a working paper, but none of these has resulted in legislation.¹

The Essential Nature of Defamation Law

The law of defamation is, of course, about words (though gestures, symbols and images may equally convey meaning; as may drumming "to the Akan, the drum can and does speak" - Nketia (1963) quoted by Kanyoke, 1973). In Africa the word retains much power, whether in the form of witchcraft, or divination, oral history, or praise-singing, or singing as a form of social control (see Roberts, 1979, p. 60 citing Bohannan, 1957, pp. 142-4).² Among the Dinka, indeed, what looks like defamation in the form of song may be almost a compliment,

Nobody wastes time or trouble on criticising a poor man or a person of low status in a song. You look very important or noble when many people tend to criticise you, whether rightly or wrongly (Makec, 1988, p. 213).

West African chiefs spoke through "linguists", rather than directly to their subjects - as though their words were so precious that they were not to be wasted on ordinary people. In some Ghanaian societies public announcements, and accusations, were made by the "gong beater", and sometimes this itself gives rise to litigation. In 1845 and as recently as 1981 plaintiffs complained that gong-gong beaters accused them of stealing the defendant's sheep (Mensah v Quamina Attopi (1845), Bogya v Baokye (1981))! In Ackah Essah of Bomuapelly v Anuah Sofo of Tandan (1974) the plaintiff was a chiefs linguist, and sued the defendant wanting to know why he had "so recklessly and frivolously" sworn the oath "Ehanu" against the plaintiff.

Words may have three types of (injurious) impacts on the person about whom they are spoken. They may have measurable financial consequences, they may injure his or her reputation, and they may be hurtful to the feelings of that person. Concepts of society, and of the individual's place in society of the nature of "self" - will have profound effects upon how words are viewed. The common law has carved out from the universe of words and their impact on individuals those which injure reputation and labelled them "defamation". It excludes statements about ancestors, certain sorts of insults, remarks in the absence of anyone except the two actors. Most systems of customary law would find this demarcation quite incomprehensible.

What is reputation? Is it something which is of intrinsic value, so that any loss or risk of loss should be actionable? Or is it valuable because of the benefits it brings - or more likely because of the detriment its loss may cause - more like a piece of property? Does its value lie in one's own sense of satisfaction in having it? Even the concept of being thought well of, or in the case of defamation being thought less of, leaves room for doubt. Will you be esteemed less only because of what you yourself are responsible for, or will things beyond your control, such as illness or background, damage your reputation? The common law, as we shall see, has no very clear answer to these questions.³

One writer (Post, 1986) has related different conceptions of reputation to different types of society:

The concept of reputation as dignity...presupposes a particular kind of society, a social world that I shall call a "communitarian society". Communitarian societies and market societies have in common the concept of equality. Just as in market societies all persons are equally subordinated to the market, so in communitarian societies all persons are equally eligible for inclusion within the community. In most other respects, however, market and communitarian societies are radically different. In market societies individuals create their reputation; in communitarian societies individuals are in a very important sense created by their reputation. In market societies reputation is a private good; in communitarian societies it is both a private and public good....

One might broadly equate traditional African societies with the "communitarian" and modern European society (and modern African society) with "market" societies - though one must be careful not to exaggerate the differences.

In England, this area of the law may reflect popular views more readily than any other, for it is the one civil field in which jury trial is still common. But until recently the jury could not really reflect the community, being, in Devlin's famous words, "predominately male, middle-aged, middle-minded and middle-class" (1956, p. 20). The potential effect of jury trial is to impose upon minorities the value-judgments of the majority, as is the effect of the rule that there is no defamation if only a section of society would think less of a person of whom the statement in issue was made (see Chapter 6). And the judges have the power to take away from the jury the decision if they hold that the words cannot be defamatory - which may tend to impose upon the majority the value judgments of the minority to which judges belong. How does that work in African jurisdictions, which do not have jury trials and which are generally heterogenous in ethnic and often in religious terms?⁴ What is "the community" for the purposes of the law of defamation?

Who Sues and Why?

This book does not attempt an empirical study of who brings defamation actions and for what in Commonwealth Africa.⁵ The analysis of why people might sue in defamation needs to be rather different from that which is appropriate in, for example, personal injury litigation. There can be no possible way of assessing the value of a reputation (unless damages are restricted to compensation for financially measurable things like loss of employment). In England, it sometimes seems, a defamation action can be the occasion not so much for compensation as for a windfall (see e.g. Littleton, 1991). The heavy damages awarded by juries in certain cases against the popular press would seem to have a denunciatory function, and possibly reflect condemnation not of the specific litigated statement, but of press practices more generally. This is less true in African jurisdictions where there is no jury, although certain judicial dicta reflect similar concerns.

Deterrence is obviously one of the major supposed functions of defamation. Indeed, the assumption of freedom of speech attacks on defamation is that it deters rather more than simply defamatory statements. Exemplary damages, if awardable, will increase the deterrent effect (see Chapter 19). To the limited extent that it is possible to obtain an injunction to restrain the impending publication of something on the basis that it is defamatory, the law is also preventive (Chapter 20).

Can the law achieve correction, that is to undo what was done? In the common law system this has not been a traditional possibility, but there are some incentives to publishing apologies and corrections by statutory provisions that reduce damages or even provide a defence to the press if a correction has been published, and there has been something of a modern trend in favour of such relief. Psychological satisfaction for the plaintiff looms larger in defamation than most other torts (Tbnc, nd, p. 96, citing Williams, 1951, pp. 138-40). An interesting finding of empirical research in the US is that plaintiffs care more about vindication than about money (Bezanson, 1985). Perhaps, therefore, an observation of Dr Danquah in Ghana is overstated:

The delicate feelings of the average African are not half so blunted and atrophied as those of the average European (1928p. xxiii).

Litigants may have other, less obvious, agenda (as we are reminded by Brown (1992)): plaintiffs may hope to discredit their political opponents, or put publications of which they disapprove out of business, or stop investigative journalism. In some instances it is hard to believe that "show-business" personalities have any motive other than to put themselves further in the public eye. Even less public figures may be driven by a wish to hurt a long-standing adversary, rather than to vindicate, or receive compensation for, a wounded reputation. One writer, observing that in Uganda in the early years of independence plaintiffs in defamation cases were overwhelmingly politicians and other publi...