48. The operative words in sub-paragraph 3 in Article 56 are disparaging and insulting and these
words must be directed against the State Party concerned or its institutions or the African Union.
According to the Oxford Advanced Dictionary, disparaging means to speak slightingly of… or to
belittle…. and insulting means to abuse scornfully or to offend the self respect or modesty of…
49. The judiciary is a very important institution in every country and cannot function properly without
the support and trust of the public. Because of the importance of preserving public trust in the judiciary
and because of the reticence required for it to perform its arbitral role, special safeguards have been in
existence for many centuries to protect the judiciary against vilification. One such protective device is
to deter insulting or disparaging remarks or language calculated to bring the judicial process into
ridicule and disrepute.
50. 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.
51. In determining whether a certain remark is disparaging or insulting and whether it has dampened
the integrity of the judiciary, or any other State institution, 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 [sic] the
institution. The language must be aimed at undermining the integrity and status of the institution and
bring it into disrepute.
52. 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.
53. The importance of the right to freedom of expression was aptly stated by the African Commission
1
in communications140/94, 141/94, 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.
54. 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 state institutions such as 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
criticizing 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 though outspoken comments of ordinary men.
55. In the present communication, the Respondent State has not established how by stating that the
government has failed to observe the principle of separation of power and that a judge resigned under
pressure after ruling in favour of the MDC, the Complainant has brought the judiciary and the