DEFMATION: WHAT JOURNALISTS NEED TO KNOW1

By Paul Kimumwe2

Defamation represents probably the easiest charge that can be brought against media
practitioners in Uganda, with the most recent being that of CBS radio journalist, Ronald
Ssembussi who was on Friday the 17th October 2014 fined Uganda shillings 1million ($400).

Ssembuusi had been convicted of criminal defamation (against Kalangala LC V boss, Daniel
Kikoola) by Grade 1 Magistrate; Kenneth Gimugu in Kalangala two weeks earlier. The
conviction and sentencing has been criticized by both media and freedom of expression activists.

The intention of this brief however is not to discuss Ssembuusi’s case but to provide some
insight into defamation and why it matters for journalists to know about it, given the fact that it is
still a provision on our law books.

In law every person is entitled to his good name and to the esteem in which he is held by others.
It does not matter whether the ‘person’ is a natural or artificial one e.g. a company. Such a
person has a right to claim that his reputation shall not be sullied by defamatory statements made
about him to a third person without lawful justification3.

In Uganda, S.180 (1) of the Penal Code Act defines a defamatory matter as, “… matter likely to
injure the reputation of any person by exposing that person to hatred, contempt or ridicule or
likely to damage any person in his or her profession by an injury to his or her reputation.”

According to the “Essential Law Dictionary4”, defamation refers to an intentional publication or

public statement of false information that damages someone’s reputation. In other words, a
defamatory statement has the effect of lowering the reputation of the affected person in the eyes
of the right-thinking members of society.

In Francis Lukooya Mukoome & another v The Editor in Chief Bukedde News paper & 2
others CIVIL SUIT NO.351 OF 2007, Justice Yokoram Bamwine, writes that;

“Defamation is something more than an insult or derogatory comment. It is not capable

of exact definition. How far a person is affected by unkind words will depend not just on
the words used, but also on the people who must then judge him. That is why
communication to the plaintiff alone will not suffice. (It) is an injury to one’s reputation
and reputation is what other people think about a man and not what a man thinks about
himself.”

1
This is an edited and contextualized excerpt from the book; Kimumwe. P., (2014) Media Regulation and
Practice in Uganda: A Journalists Handbook
2
Mr. Kimumwe holds a MA in Communication Studies from the University of Nairobi and a BA ins Mass
Communication for Makerere University
3
Justice Bamwine in his judgement in A.K Oils & Fats (U) Ltd V Bidco Uganda Ltd (HCT-00-CV-CS-0715-2005 )
4
Amy Hackney Blackwell (2008) Essential Law Dictionary; Sphinx Publishing; Naperville, Illinois, USA
Any person who sues for defamation must therefore prove to court that the statements in
question had the following attributes;

a) that the statement was false. If the statement is in fact true, no defamation action may be
advanced, no matter how defamatory the statement is.
b) that the statement was defamatory in nature, i.e. the statement has capacity to harm the
person’s reputation in the eyes of right thinking members of society. A statement can be
defamatory on its “face” (e.g., labeling someone “corrupt”, or “adulterous” or it can imply a
defamatory meaning. Thus, a statement that is, on its face, not defamatory is nonetheless
actionable if the defamatory implication or innuendo becomes reasonably apparent with the
addition of other facts.
Note: Context is critically important in determining whether a statement is defamatory. A
statement standing alone may be rendered non-defamatory when considered in the larger context;
conversely, an otherwise innocuous statement may be construed to be defamatory in light of the
surrounding statements5
c) that the statement referred to the claimant and identified him or her, directly or indirectly,
and;
d) that the statement was published/broadcast, i.e. communicated, to a third party.

There are two forms of defamation:

Libel; which refers to a defamatory statement of a permanent nature – such as written, pictures,
art, etc,. On the other hand, slander is essentially a defamatory statement in short-lived form,
especially the spoken word. We need to note here that libel can actually be prosecuted both as a
crime and as tort, while slander is only treated as a tort. Indeed, section 179 of the Uganda penal
code states that;

“any person who, by print, writing, painting, effigy or by any means otherwise that solely
gestures, spoken words or other sounds,, unlawfully publishes any defamatory matter
concerning another person, with intent to defame that person, commits the misdemeanor
turned libel”

However, in Ntabgoba Vs Editor New Vision (2001-2005) 2 HCB 209, Justice Gideon
Tinyinondi confirms that in situations where the words complained of are defamatory in their
ordinary and natural meaning the Plaintiff need prove nothing more than their Publication.6

In defamation suits, the burden of proof shifts to the defendant to plead his innocence using any
of the following defenses.

a) that the statement was a matter of truth/fact (or justification),

b) that the statement was actually a fair comment on a matter of public interest, or
c) that it was made on a privileged occasion.

a) Truth (or Justification)

5
Robert. C. (2004) A LITTLE LIBEL, A LOT OF TROUBLE: DEFAMATION AND RELATED ISSUES IN HIGHER EDUCATION
6
Quoted in J.W. Kwesiga’s Judgement in Chaina Movat & Another v Kyarimpa CIVIL APPEAL NO. 42 OF 2008
As discussed earlier, one of the characteristics needed for a defamatory statement to be
actionable, is that it must be false. Therefore, if the said statement is a fact then there can be no
action for defamation.
According to section 182 of the penal code,

“Any publication of a defamatory matter concerning a person is unlawful within the

meaning of this Chapter, UNLESS (a) the matter is true and it was for the benefit that it
should be published.”

The burden of proof is therefore on the defendant to prove that the statement made was true,
rather than on the claimant to prove that it was false. Once the defendant proves that the
defamatory statement was true, the purpose or motive with which it was published becomes
irrelevant.

Justice Byamugisha (as she then was) In BLAZE BABIGUMIRA VS HANNS BESIGYE
HCCS NO 744 OF 1992 (un reported) held, interalia, that the defense of Justification means
that the defendant is contending that the words complained of were true. The burden of is on the
defendant to prove that in fact these words were true.7

Once this has been proved, it is them up to the plaintiff to challenge the truthfulness of the
defendant’s assertions. In Francis Lukooya Mukoome & another v The Editor in Chief
Bukedde News paper & 2 others CIVIL SUIT NO.351 OF 2007, Justice Yokoram Bamwine,
writes that;

“... when a party adduces evidence sufficient to raise a presumption that what he is
asserting is true, he is said to shift the burden of proof, that is, his allegation is presumed
to be true, unless his opponent adduces evidence that rebuts the presumption.”

b) Fair comment
Fair comment as a defense in defamation suits is designed to protect statements of opinion on
matters of public concern and ensures that the public can express themselves freely on matters
that affect their livelihoods.

The defense only applies to comments made on matters of public interest, such as comments on
works of literature, music, art, plays, radio and television; and the activities of public figures. A
publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was
true or false) will destroy the defense of fair comment8.

In Francis Lukooya Mukoome & another v The Editor in Chief Bukedde News paper & 2
others CIVIL SUIT NO.351 OF 2007, Justice Yokoram Bamwine, writes that;
“(Fair comment) is a defense to an action for defamation that the statement made was fair
comment on a matter of public interest. The facts on which the comment is based must
be true and the comment must be fair. Any honest expression of opinion, however

7
Quoted in J.W. Kwesiga’s Judgement in Chaina Movat & Another v Kyarimpa CIVIL APPEAL NO. 42 OF 2008
8
Robert. C. (2004) A LITTLE LIBEL, A LOT OF TROUBLE: DEFAMATION AND RELATED ISSUES IN HIGHER EDUCATION
 exaggerated, can be fair comment but remarks inspired by personal spite and mere abuse
are not. (However), the judge decides whether or not the matter is one of public interest.

A four-point test for fair comment has been developed to provide some guidelines, thus the
statement in questions must have been: a) an opinion; b) relating to an action; c) not made
against an individual; and d) the reader can see the factual basis for the comment and draw his or
her own conclusions and of course lastly; that it relates to a matter of public interest9.

c) Privilege
As a form of defense to defamation suits, privilege recognizes the importance of freedom of
expression in certain situations regardless of how false or malicious the defamatory statement is,
it cannot be actionable.
There are two types of privileges: absolute privilege and qualified privilege.

Under the doctrine of absolute privilege, it is generally accepted that proper functioning of
government and promotion of freedom of expression and democracy, certain officials and
citizens must be completely protected from suits of defamation.

According to section 183(1) of the penal code, “The publication of defamatory matter is
absolutely privileged, and no person in any circumstances shall be liable to punishment under
this code in respect of such publication, in any of the following cases-
a) If the matter is published by the President, the Government or Parliament;
b) If the matter is published in Parliament by the Government or by any member of that
Parliament or by the Speaker;
c) If the matter is published by order of the President or the Government;
d) If the matter is published concerning a person subject to military, naval or air force discipline
for the time being and reduces to his or her conduct as a person subject to such discipline,
and is published by some person having authority over him or her in respect of such conduct
and to some person having authority over him or her in respect of such conduct;

Additionally, section 183(2) notes that,

“where a publication is absolutely privileged, it is immaterial for the purposes of this
chapter where the matter is true or false and whether it is or is not known or believed to
be false and whether it is or is not published in good faith but nothing in this section shall
exempt a person from any liability to punishment under any other chapter of this code or
under any other written law in force in Uganda.”

On the other hand, with qualified privileges, it means that the immunity from defamation suits is
conditional and must thus not be abused. Abuse typically occurs where the defendant had no
reason to make the statement to the recipient, or if he or she made the statement, it was out of
spite or ill will.

9
Obonyo. L; Nyamboga. E (2011) Journalists and the Rule of Law; The Kenyan Section of the International
Commission of Jurists; Nairobi- Kenya
S.185 of the penal code emphasizes that; “a publication of defamatory matter shall not be
deemed to have been made in good faith by a person, within the meaning of section 184 if it is
made to appear either-
a) That the matter was untrue and that (the defendant) did not believe it to be true;
b) That the matter was untrue and that (the defendant) published it without having taken
reasonable care to ascertain whether it was true or false; or
c) That in publishing the matter, (the defendant) acted with intent to injure the person defamed
in a substantially greater degree or substantially otherwise that was reasonably necessary for
the interest of the public or for the protection of the private right or interest in respect of
which he or she claims to be privilege.”

The possibility that these penal code provisions regarding defamation may or may not be
constitutional will not stop the state or other from suing as long as they are still part of Uganda’s
law.

It is therefore very important that journalists and other media practitioner in Uganda acquaint
themselves with these provisions and their application to avoid falling on the wrong hands of the
law, as efforts to have defamation decriminalized are mounted.