By PAUL MWANGI
Few people know the tribulations of being a public figure.
We read about public figures every day, their wives and children, friends and colleagues, but rarely do we stop to understand the psychological toll that comes with living one’s life under such public exposure.
Defamation is an ugly dimension to this public scrutiny.
It inflicts a painful emotional hurt to a vulnerable victim. Not many of us know the disconsolation caused to one who reads inventions made against their loved ones, and misrepresentations made of their relationships with friends and colleagues.
It is disconcerting for anyone to read about actions they allegedly took that never occurred, words they allegedly said that they never spoke or intentions they supposedly had, which they have never formed. The knee-jerk reaction of any subject of defamation to take out legal proceedings in a court of law is thus understandable. He or she craves to vindicate their character and restore their honour and that of their loved ones.
They want it pronounced publicly that allegations against them are untrue and the writer has maliciously impugned their character and invaded their privacy.
A defamation suit has become such a popular assumed panacea to libel and slander that it is now in fact expected of everyone who claims their character has been defamed.Those who followed the confirmation hearing at the International Criminal Court at The Hague last year will remember the cross examination of Hon Uhuru Kenyatta by Justice Ekaterina Trendafilova, the Presiding Judge of Pre-Trial Chamber II.
Asking Kenyatta about the allegations made about him by one Prof Kagwanja in an article in 2002, she had only one question for the Deputy Prime Minister: Whether he had sued the learned professor for defamation for associating him with the outlawed Mungiki sect. Uhuru answered in the negative, a response I predicted would seal his fate in the confirmation hearing, and it did. But it should not have. Defamation suits are not acceptable knee-jerk reactions for public officials in a democracy.
They are, in the constitutional law of developed democracies, largely outlawed. And this is why, to foster the nascent civil liberties we promulgated two years ago, the Prime Minister opted not to sue the author of the recently launched publication against him.
The Prime Minister acknowledges that abuse is a part of enjoyment of rights and that the exercise of any liberty carries with it the danger that it shall be abused. This is actionable in almost all instances, but for where the abuse occurs in the process of the scrutiny of a public official.
Constitutionalism
The famous American statesman James Madison, the Fourth President of the United States, once wrote: “Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the Press.”
Constitutionalism demands scrutiny of public officials in a democracy and the law will compromise the interests of public officials even when they are subjected to abuse, rather than risk the danger of stifling debate. It has been ruled by the US Supreme Court of that a Public Official can sue for defamation only if there is evidence of malice.
The US Supreme Court approved a ruling made by the Supreme Court of Kansas when it said: “It is of the outmost consequence that the people should discuss the character and qualifications of candidates and their suffrages. The importance to the state and to society of such discussion is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great”.
This is not Kenyan law and in the past, punitive damages were awarded to public officials whose reputations were injured. Although such defamation suits by public officials are allowed, the overall effect on the freedom of the Press has been negative. In explaining why these abuses have to be tolerated, the US Supreme Court stated in Cantwell-V- Connecticut:
“In the realm of..... political belief, sharp differences arise. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in Church or State, and even to false statement.
But the people of this nation have ordained, in the light of history, that, inspite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing Space” that they need to survive”.
Free speech
The Prime Minister wants the country to open a new chapter in the freedom of expression and of the Press where ideas are exchanged freely.
So critical is the freedom of expression to the development of the society that President Thomas Jefferson once remarked that if he had to choose between a Government without newspapers and newspapers without a government, he would take his chance with the latter.
The Prime Minister has accepted to bear the hurt of defamation, rather than take any action that may discourage the advancement and expansion of the field of these rights. He views the recently launched publication as “the ugly thorns that grow on the bushes of the beautiful roses of freedom”.
This is not a licence to any person, publication or media to repeat the scandalous and indecent sleaze retched by the writer, or as a condoning by the Prime Minister of the same, nor should it discourage persons from vindicating their rights against the author.
The writer is Legal Affairs Advisor to Prime Minister Raila Odinga.
