Why everyone in the EAC must celebrate the end of criminal libel in Kenya

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Kenyan judge ruled that anyone offended by another individual’s words or gestures is free to seek justice by way of damages in the civil court. PHOTO | FILE 

By Wachira Maina

Posted  Wednesday, February 15   2017 at  15:05

In Summary

  • 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?

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.

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