90. The freedom to speak one’s mind and debate the conduct of public affairs by the judiciary does not mean that attacks, however scurrilous, can with impunity be made on the judiciary as an institution or on individual officers. A clear line cannot be drawn between acceptable criticism of the judiciary and statements that are downright harmful to the administration of justice. Statements concerning judicial officers in the performance of their judicial duties have, or can have, a much wider impact than merely hurting their feelings or impugning their reputations. Because of the grave implications of a loss of public confidence in the integrity of the judges, public comment calculated to bring the judiciary into disrepute and shame has always been regarded with disfavour. 91. In determining whether a certain remark is disparaging or insulting and whether it has dampened the integrity of the judiciary, the Commission has to satisfy itself whether the said remark or language is aimed at unlawfully and intentionally violating the dignity, reputation or integrity of a judicial officer or body and whether it is used in a manner calculated to pollute the minds of the public or any reasonable man to cast aspersions on and weaken public confidence on the administration of justice. The language must be aimed at undermining the integrity and status of the institution and bring it into disrepute. To this end, Article 56.3 must be interpreted bearing in mind Article 9.2 of the African Charter which provides that “every individual shall have the right to express and disseminate his opinions within the law”. A balance must be struck between the right to speak freely and the duty to protect state institutions to ensure that while discouraging abusive language, the African Commission is not at the same time violating or inhibiting the enjoyment of other rights guaranteed in the African Charter, such as in this case, the right to freedom of expression. 92. The importance of the right to freedom of expression was aptly stated by the African Commission 4 in communications 140/94-41/94-145/94 against Nigeria when it held that freedom of expression is a basic human right, vital to an individual’s personal development and political consciousness, and to his participation in the conduct of public affairs in his country. Individuals cannot participate fully and fairly in the functioning of societies if they must live in fear of being persecuted by state authorities for exercising their right to freedom of expression. The state must be required to uphold, protect and guarantee this right if it wants to engage in an honest and sincere commitment to democracy and good governance. 93. Over the years, the line to be drawn between genuine criticism of the judiciary and insulting language has grown thinner. With the advancement of the politics of human rights, good governance, democracy and free and open societies, the public has to balance the question of free expression and protecting the reputation of the judiciary. Lord Atkin expressed the basic relationship between the two values in Ambard v A-G of Trinidad and Tobago (1936) 1 All ER 704 at 709 in the following words: but whether the authority and position of an individual judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public act done in the seat of justice. The path of criticism is a public way… Justice is not a cloistered virtue: she must be allowed to suffer scrutiny and respectful even through outspoken comments of ordinary men. 94. More recently Corbett CJ in Argus Printing and Publishing Co Ltd v Esselen’s Estate (1994) 2 SA expressed the modern balance as follows: Judges, because of their position in society and because of the work which they do, inevitably on occasion attract public criticism and that it is right and proper that they should be publicly accountable…Criticism of judgments, particularly by academic commentators, is at times acerbic, personally oriented and hurtful…To some extent what in former times may have been regarded as intolerable must today be tolerated…. This, too, will help maintain a balance between the need for public accountability and the need to protect the judiciary and to shield it from wanton attack. 95. In an open and democratic society individuals must be allowed to express their views freely and especially with regards to public figures, such views must not be taken as insulting. The freedom to speak one’s mind is now an inherent quality of a democratic and open society. It is the right of every member of civil society to be interested in and concerned about public affairs – including the activities of the courts. 96. In the present communication, the Respondent State has not established that by stating that one of the judges of the Supreme Court was “omitted” the Complainants ha[ve] brought the judiciary into