NAIROBI: The awarding of Sh26 million in damages against The Standard and ordering the defendants to publish an apology to the plaintiff and Sh20 million against the Daily Nation have significant implications on media freedoms in the country.
The two awards were made in favour of two members of the Judiciary and one wonders whether the media and the Judiciary are on a collision course. The awards are excessive and sets a very bad precedent.
It must worry a lot the media industry given that we have more cases including the former Chief Justice Willie Mutunga and judges of the Supreme versus the Star and Mutunga versus the Nairobian that are yet to be concluded.
As this unfortunate situation is unfolding elsewhere, there are efforts to improve the working relationship between media and the Judiciary. The decriminalisation of media related offences and the removal of insult laws from statute books are going on campaigns globally. Closer home, the African Court will be held in Arusha, Tanzania for a seminar on “Strengthening Judiciary Systems and African Courts to protect the Safety of Journalists and End Impunity”. The Media Council of Kenya recently held training sessions for journalists on improving reporting on the Judiciary as a way of improving working relations.
Previous awards against the media include, Nicholas Biwott, Sh20 million award against the People Daily, Samuel Ndung’u Mukunya versus Nation Media Group Limited & another Sh20 million, John Joseph Kamotho and 3 others Versus NMG; Sh14 million, Johnson Evan Gicheru versus Andrew Morton & Another the Court of Appeal awarded the then Appellate Court Judge Sh6 million, Kalya & Company Advocates versus Standard Group Ltd award of Sh9 million general damages, AB Shah & Another versus The Standard Limited & Another award of Sh6 million general damages plus Sh1,000,000 exemplary damages. Daniel Musinga of Musinga & Company awarded Sh10 million general damages for libel. Others include Uhuru Muigai Kenyatta versus Baraza Ltd cumulative award of Sh7 million.
Remember among the issues the media has raised with the Kenya Information and Communications Amendment Act 2013 is that the Act empowers the tribunal to impose a fine of Sh20 million on a media enterprise and Sh1 million on a journalist. Already, media has contended that such fines are not only punitive, but criminalise the practice of journalism. The fines indicated are punitive and outrageous and are a backdoor insertion of damages for defamation.
While the media underscores the principle of accuracy, fairness and responsibility, none of them can maintain a faultless record. Sometimes, the faults are of little consequence like misspelt names, titles or factual inaccuracies.
In other times, the wrongful action may include invasions of privacy, defaming individuals, unfair reporting and inciting hatred, violence or discrimination.
It is the latter breaches that might have propelled Parliament to pass the Kenya Information and Communications Amendment Bill purporting to actualise Article 34(5) of the Constitution. In so doing, they stripped off the media industry's self-regulation mechanism.
In order to promote public participation in public life and set agenda for their development, media must be free to provide the broadest possible range of information, interpretation and debate on areas that involve political choices, governance and accountability and enable them register dissent and propose alternatives.
This is only possible where media is permitted to operate independently from government control. This will ensure the media plays its watchdog role. Indeed, according to Thomas Jefferson, “The only security of all is a free Press”. The Kenyan Parliament has taken it away.
Judicial officers should consider the media to be their partners and allow them to comment on them aware that mistakes can be made.
On the other hand, we need a body of serious and committed media lawyers for as many of the cases show, defenses for the media are always wanting.