I was arrested by police for speaking against a religious leader in my community. Is it an offence?
I always get questions like this during my question-and-answer session on social media, I have taken my to provide answer to the above question in details.
Generally speaking, no person has the power to order the arrest of another for speaking up against him (be it a public servant or a private citizen) unless what the speaker said against the person was defamatory or falsehood. So I want to believe that this fellow was arrested for defamation or making some defamatory utterances against the religious leader. If charged to court, his case file will not read; “that you are charged for speaking against a religious leader”, there is no offence as such, rather, the case file would read “charged for defamation” which is in contravention to 373 of the criminal code act and punishable under section 375 of the criminal code act.
Idi Amin is credited with having made this funny but true assertion that “there is Freedom of Speech But I Cannot Guarantee Freedom After Speech”.
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You should know that while you have the freedom to express your thoughts and speak freely as provided by section 39 of the constitution, you also need to be mindful not to make defamatory statements about others, as this could lead to potential liability for defamation. Everyone has the constitutional right to protest, speak freely, air his or her displeasure and also the right to criticize persons, especially public officials but while exercising such rights, your criticism should be constructive because such right does not give you the impetus to defame, impune and tell falsehood against another person, not even a public official. You should know that when your criticism is defamatory, the person can take up an action against you for defamation.
You have the right to criticize your leaders or say anything you like about them but they also have the concurrent right to sue you for damages if your criticisms against them are defamatory, false and damaging to their reputation.
Section 373 of the Criminal Code Act defined defamatory matter as “matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by any injury to his reputation”.
So from the provisions of this section, we can deduce that for something to be tagged defamatory, such a thing must first of all be false and it must be damaging to the reputation of the person.
The punishment for defamation according to section 375 of the criminal code is a one-year jail term.
For the fellow who was arrested for speaking against his religious leader, here are his possible defences if he was arrested and charged with defamation; if the statements he made were true or the things he said are fair comments on a matter of public benefit.
Perhaps he was arrested for other things or other backyard offences which are unknown to our laws, his constitutional right to free speech has been breached and he has a right of action against the law enforcement agency that arrested him for fundamental right enforcement.