In November 2016, CID officers at Kibuli in Kampala summoned Mabonga Darlington Kitts, a Ugandan journalist, for questioning on a possible charge of criminal defamation.

Mr Mabonga had written that Inawale Job Olusegun, a pastor, had fathered a child with a woman other than his wife. That woman, Nadunga Robinah, had sued Pastor Inawale for neglecting Inawale Olusegun Job Junior, the child.

According to the Human Rights Network for Journalists-Uganda, an NGO, two DNA tests — the first by a Ugandan government agency and the second by Lancet Laboratories, a private lab — have already confirmed that Pastor Inawale Job is the father of Inawale Job Junior. The police summons, the NGO said, were therefore an underhanded threat to silence the journalist and keep the story out of the press.

If true, the summons also point to the dangers posed by criminal defamation laws: The ease with which they permit state coercion to be used to protect private individuals. That, too, is the reason why in the recent decision in Jacqueline Okuta and another vs the Attorney General and 2 others, the High Court of Kenya has ruled criminal defamation unconstitutional.

By carefully parsing the text of the Constitution, drawing generously from international law — especially from the case law and opinions of the UN Human Rights Committee and the African Commission on Human and Peoples’ Rights — the court makes two central findings.

One, that private reputations are already adequately protected by civil remedies and the additional penalties imposed for criminal libel in the Penal Code are disproportionate. Two, though the Constitution accepts that the twin freedoms of thought and expression are not absolute, criminal libel is not a reasonable limitation in a democratic society.

Silenced future critics

The issues in Jacqueline Okuta mirror those in New York Times vs Sullivan, the most famous defamation case in US history. In Sullivan, the Supreme Court quashed a $500,000 defamation award made to an Alabama City Commissioner against Rev Ralph Abernathy and supporters of Martin Luther King Jnr for an offensive advert in the New York Times.

The award, the court saw, would have financially crippled and eventually undermined the civil-rights campaign in segregationist Alabama, home of Rosa Parks’s inspired Montgomery Bus Boycott. It would also have silenced future critics of official wrongdoing, eroding the vitality of free speech in US democracy.

In quashing the award, the Supreme Court referred to “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” It accepted that debate will sometimes include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Yet such offence, sometimes even falsehoods, “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”

Alexander Meiklejohn, a leading free-speech lawyer, stated afterwards that New York Times vs Sullivan “was an occasion for dancing in the streets.”

As with the Sullivan case, the Jacqueline Okuta case is an occasion for dancing not just on Uhuru Highway but also on Kampala Road in Kampala and on Julius Nyerere Road in Dar: It should inspire judges in Uganda and Tanzania because there, too, harsh criminal libel laws still exist and are often used.

This case deserves a toast of Scotland’s finest single malt, not only because its conclusion is right; its catholic use of examples from other countries and from the UN is refreshing, a real tonic from the insipid parochialism that East African judges often hide behind. It should find a home wherever it is cited.

There is also a collateral, if long-term gain: The principles set out by Justice Mativo can help future courts to decide the amount of damages to award in civil defamation, by offering a principled basis on which to balance a person’s reputational loss against the public interest in free thought and speech.

Public interest vs private interest

Time to drill down a little: At stake in this case were two linked issues. One, should private reputations be protected by criminal law? Two, what test does a court use to decide whether the limits on a constitutional right are justifiable and reasonable in Kenya, or in any other democracy for that matter?

On the first issue, the court made a sharp distinction between matters of public interest and those of private interest, such as a person’s reputation. It then scrutinised the language used in the Constitution. It noted that the Constitution limits the freedoms of thought and speech only when they are “intrinsically dangerous to the public interest.”

On this reading, a law would not be a legitimate or reasonable limitation if it prohibits or restricts thought or speech that pose no danger to the public interest. But the court also gave an instrumental argument against criminal libel.

Criminal libel has a chilling effect “on the right to speak and the right to know,” a chill that it magnifies further with the threat of a long jail term — up to two years — imposed on conviction. As in Sullivan, the court understood that a stiff punishment stifles free speech, eroding its power as a tool against corruption, fraud and official excesses.

Police’s ever present threat

It is “inconceivable,” the judge continued, that the citizens, media and civil society could investigate wrongdoing without defaming someone at some point. The threat of jail-time would “stifle and silence the free flow of information in the public domain”, fostering an ignorant public and giving free rein to impunity.

This would eventually erode the state itself. This is because the use of the state’s police power to protect private reputations inevitably immunises high public officials from scrutiny; its ever present threat intimidates media from reporting on the very people who are meant to disclose official wrongdoing.

Having established that criminal libel was a restriction on free speech; that it had the potential to stifle and that it could put a chill on it, the court could have ruled it unconstitutional at that point. However, it went further. In an admirably clear analysis, the court now asked whether criminal libel was reasonably justifiable in a democracy.

On this point, the court’s reasoning is, in effect, a transnational conversation. From the US Supreme Court cases — such as Palko vs Connecticut and Speiser vs Randall — the judge described the freedoms of thought and speech as the “touchstone of individual liberty;” “the indispensable condition of nearly every form of freedom” and necessary “for the preservation of a free society in which government is based upon the consent of an informed citizenry” and “dedicated to the protection of the rights of all, even the most despised minorities.”

The high value of these freedoms places a hefty burden on those who want to restrict them. The court made this clear by drawing on international best practice, decisions of the Human Rights Committee and, closer home, those of the African Commission on Human Rights, both of which have considered the place of criminal defamation in a democracy.

In the 2011 case of Alexander Adonis vs the Government of the Philippines, the Human Rights Committee considered a criminal defamation conviction based on criminal defamation laws a la Kenya, Uganda and Tanzania.

It found that these laws violated freedom of expression and the Philippines’ obligations under international law. This reinforced the findings of the UN Special Rapporteur on Freedom of Opinion in his 2008 Report in which he criticised criminal defamation laws as overbroad in scope and application and “a powerful mechanism” that is often used “to stifle investigative journalism and silence criticism.”

Decriminalise defamation

The UN consensus then, the court noted, is as summarised by the United Nations Commission on Human Rights, namely, that jailing a person as “a sanction for the peaceful expression of opinion is one of the most reprehensible practices employed to silence people.” For this reason, it “constitutes a serious violation of human rights”.

There is, in fact, as Judge Mativo noted, growing international pressure to decriminalise defamation, led in part by UN bodies but also by Article 19, the global free expression lobby, and by regional courts.

In Zimbabwe, the court has declared defamation laws unconstitutional in the case of Nevanji Madanhire and Another vs AG. The African Court on Human and Peoples Rights has also said that criminal penalties for defamation are inappropriate and argued that civil remedies are enough.

These trends should hearten EAC judges who have the professional courage to follow Kenya’s lead. More important, Justice Mativo’s decision is also a useful guide on how to ascertain whether a restriction on a constitutional right is justified. If unsure, a court should test the limitation by asking whether it is proportionate.

Proportionality, as defined by the former president of the Supreme Court of Israel, Aharon Barak, refers to the rules that a court uses to decide if “necessary and sufficient conditions” exist on which the court can decide that an exception to a constitutional right is valid. On the proportionality test, a law that limits a constitutional right would be valid only if it jumps all four of following conditional hoops.

• One, the law must be made for a legitimate purpose. In this case, it could be said that criminal libel protects private reputations and that is arguably a legitimate purpose.
• Two, the means that the law uses to achieve its purpose must both be rationally related, one to the other. In this case, the means chosen by criminal libel is conviction followed by a jail term. It could be argued, as in the first point, that there is a rational connection between means, jail term, and the ends, protecting private reputation.
• Three, the means chosen must be necessary; necessary in the sense that all other alternatives would be more harmful. In this case, civil damages are an alternative to a jail term. From a rights perspective, then, it is clear that an awarding does not invade constitutional freedoms as much as a two-year jail term. Since an alternative to a criminal libel prosecution exists in Jacqueline Okuta, the case would fail the test.
• Finally, the restrictive law must strike a proper balance between the public interest and private rights. The public interest here is the need to protect the democratic process from being stifled by fear of punishment. The private interest is the need to give individuals remedies when their reputations are hurt. But since the law already awards damages to the defamed, additional punishment through criminal libel harms the public interest in free thought and speech.

Applying these tests, the court concluded that criminal libel is not reasonable and justifiable in a democracy. This should have concluded matters but the court also pointed to a more poignant danger that lurks in criminal libel: A wrongful conviction.

“The very existence of the crime,” the court noted, “creates the risk of wrongful accusation, investigation, prosecution and even conviction, with all the associated inconvenience and scandal.” Such problems cannot always be corrected on appeal.

“It is this brand of public disapproval,” the court noted, quoting a renowned scholar, that criminal law “casts on murderers, rapists and thieves.” Criminal libel thus foists on a person the stigma of arrest; the ignominy of police custody; the glare of media; the humiliation of a criminal trial and, worst of all, the life-long disgrace of a criminal record. The court concluded that this “could not and should not apply to injurious speech, the borders of which are elusive and essentially subjective.”

But where does this fit in the larger corpus of defamation law? The immediate benefit that arises from this case is the clarity with which the relevant principles were laid out. The court formulated a test that balances the private right of reputation against the public interest in democratic speech.

And even though no damages were involved in this case, the court’s four-step test correctly identifies the issues at play when the public and the private come into conflict in a court judgment. As Sullivan so clearly shows, excessive financial awards can be no less crippling and stifling than criminal penalties.

If the logic of the Judge Mativo test is accepted, it will inevitably bring into question the constitutional status of the high defamation damages awarded by Kenyan courts in the past.

At any rate, Judge Alnashir Visram’s judgment in Kipyator Nicholas Kiprono Biwott vs Clays Ltd and others wouldn’t survive the test. This was an undefended defamation suit based on a claim by two British authors, in Dr Iain West’s Casebook, that Nicholas Biwott was a suspect in the murder of Dr Robert Ouko, a former minister for foreign affairs.

The judge awarded Biwott Ksh30 million ($300,000) in damages, the highest in Kenya’s history. The judgment itself read like panegyric to Mr Biwott’s, whose reputation, the court said, had been “severely and wantonly attacked and injured.”

This anti-thought and anti-expression case has been cited many times over, most recently and ironically in a judgment in which the High Court awarded Justice Visram Ksh26 million ($260,000), the second highest defamation award in Kenya’s history.

There are two things to take away from analysis.

One, the court’s courageous decision is like a bracing tonic to those who were beginning to feel jaded about the unfulfilled promise of the new Constitution.

Two, and less loftily, the Biwott case reminds us that there is a phalanx of bad laws and decisions that still need to be fixed. The vision of democracy that the court has so eloquently set out has not, so far, been universally embraced, even in the judiciary itself.

Will the courts higher up the hierarchy — and in the region — grasp this new vista or will they, as they have so often done, throw a blanket of fog where a light has just been shone?

Wachira Maina is a constitutional lawyer based in Nairobi