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By Rick Dzida

The Malawian state has once again exposed its own hypocrisy, tyranny, and utter contempt for the supreme law of the land!

The recent, outrageous arrest of activist Agape Khombe — under the guise of protecting lawyer Edgar  Kachere from defamatory attacks framed as cyberbullying   —  is a blatant, illegal assault on the constitutional right to free speech.

Let’s be absolutely clear: Agape Khombe should not be sitting in a police cell! If lawyer Kachere feels aggrieved by online remarks, the remedy is a civil lawsuit for financial damages, not the deployment of state machinery to intimidate critics.

 Using handcuffs and prison bars to shield personal reputations is a textbook abuse of state power designed to silence public discourse and protect the elite from scrutiny.

This arrest is a desperate, bad-faith exploitation of a legal conflict. On 16 July 2025, the Constitutional Court delivered a historic, unanimous judgment in Joshua Chisa Mbele v The DPP & The Attorney General.

 Justices Chifundo Kachale, Fiona Mwale, and Mzonde Mvula explicitly struck down criminal defamation, ruling it an unjustifiable violation of Section 35 of the Malawian Constitution.

The judges made it clear: freedom of expression is absolute, even online, and the police have no business policing reputations.

Yet, because authoritarian mindsets refuse to die, the state has weaponized a cowardly loophole.

Blocked from using the Penal Code, prosecutors are now abusing the Electronic Transactions and Cyber Security Act of 2016 to achieve the exact same oppressive results.

This is a backdoor assault on the judiciary and a direct defiance of the Constitutional Court’s clear mandate!

The state’s attempt to use the 2016 Act to bypass the July 2025 Constitutional Court ruling is a spectacular display of legal ignorance.

The state cannot use a regular piece of legislation to resurrect a crime that the highest court has already buried.

 Under Section 4 of the Constitution of Malawi, the Constitution is the supreme law of the land. Any law—including the Cyber Security Act—that conflicts with it is automatically invalid.

When the Constitutional Court ruled that criminalising defamation violates the right to free expression under Section 35, it set a supreme constitutional standard. That standard applies to all laws, regardless of whether the speech happens in a town square or on social media platforms.

The state is trying to argue that because the Cyber Security Act regulates digital space, the Joshua Chisa Mbele ruling does not apply. This is a fraud.

The Constitutional Court did not strike down Section 200 of the Penal Code because of where the words were spoken; it struck it down because of what was being criminalised—the act of using state police to protect personal reputations. The medium of expression (the internet) does not strip a citizen of their constitutional protection.

 By declaring criminal defamation unconstitutional, the Court effectively ruled that the state cannot use prison cells as a remedy for reputational harm.

 Therefore, any provision within the Cyber Security Act that mimics the defunct Section 200 of the Penal Code is already constructively unconstitutional. Using it to arrest Agape Khombe is a bad-faith evasion of a binding judicial precedent.

 By using an outdated 2016 statute to circumvent a definitive 2025 constitutional ruling, the Director of Public Prosecutions (DPP) is committing an act of institutional rebellion.

 It is a fundamental principle of law that statutory laws must bend to constitutional interpretations.

Executive agencies cannot selectively enforce secondary acts to override explicit judicial prohibitions.

We therefore refuse to stay silent while the state rewrites the Constitution through intimidation and persecution.

We subsequently demand an urgent, comprehensive review of the Electronic Transactions and Cyber Security Act of 2016 to align it with Section 35 of the Constitution and eliminate vague provisions that criminalize online speech.

Furthermore , Agape Khombe’s case and Sylvester Namiwa’s absurd treason case must be treated immediately as critical constitutional matters to permanently halt this state-sponsored legal harassment.

In addition, the High Court must issue an immediate moratorium or injunction halting all criminal prosecutions of online defamation under the Cyber Security Act until the law is constitutionally aligned.

More so,  human rights organizations must systematically document and hold individual prosecutors and police officers civilly liable for malicious prosecution when they enforce laws already declared unconstitutional in spirit.

Moving forward, civil society organizations, social media influencers, and ordinary citizens must launch a coordinated, unyielding digital campaign to flood the public sphere, ensuring that state intimidation fails to produce its intended chilling effect.

In conclusion, the state cannot use a secondary statute to bypass the supreme Constitution. Free Agape Khombe now!