By Pravin Bowry
The controversial book, Peeling Back the Mask, by Miguna Miguna has vividly brought to the fore the laws of defamation which in Kenya have, unlike other common law countries, not been exploited by aggrieved citizens.
Defamation is a term applied to all public statements that can damage the reputation of another individual or party. Slander is defamation in an impermanent form and usually refers to speech. Libel on the other hand is defamatory material in a permanent recorded form e.g. in a newspaper, web site, blog or drawing.
Historically, English libel law was invented by judges as an alternative to dueling, to allow gentlemen to defend their reputations without resorting to violence! Libel is a criminal offence under the rarely used Section 194 of the Penal Code, and whether the DPP will awaken to the possibility of attributing criminality to the gravity of writings remains to be seen.
In criminal libel there is no need, as there is for the civil wrong, for the libel to be published to a third party. Additionally, in criminal defamation, it is not enough for the Defendant to prove the truth of the defamatory allegations; he must also show that they were published for the public benefit.
There is a school of thought that the law in the Penal Code should be abolished as it is incompatible with the new provisions in the Constitution relating to the freedom of speech. The very wide terminology of the new Constitution is likely to have great impact on the interpretation of laws relating to defamation both criminal and civil.
Defamation in its civil manifestations falls under the category of civil law of torts, i.e. civil wrong and generally adopts the English common law through the Defamation Act Chapter 36 Laws of Kenya with damages in monetary terms being the redress.
Libel laws are complicated and unpredictable and in this modern world libel tourism is sending chilling messages across the world.
Claimants are filing cases in the claimant friendly jurisdictions with England becoming the most claimant friendly venue giving phenomenally high damages. If Miguna’s book is sold in the UK a claimant who alleges he has been defamed in the book is likely to get greater damages in the UK.
For an action of libel to succeed the claimant must prove that the statement brings the claimant into hatred, ridicule or contempt or to lower him in the estimation of right minded members of society. The courts look in detail on the precise words but the allegations by law are considered in the context of a particular publication or situation. A defamatory statement must refer to the Plaintiff, may not necessarily expressly refer to a person and reference by innuendo can suffice; there must be publication which encompasses from the author to the printer to even the bookshop.
Defences available on libel actions are many. Justification is one of them. Truth is almost always a complete defence to a libel action. If the substance and fact can be established to be true then there can be no defamation and proving the truth falls on the shoulders of the Defendant.