Suspects’ rights are sacrosanct, abusing them will be suicidal

In 2014, music legend Sir Cliff Richard’s home was raided by British police as they investigated child sexual abuse allegations against him.

The BBC, tipped by the Yorkshire police, arrived in style, complete with a hovering helicopter to cover the raid.

Upon conclusion of investigations, the police confirmed the allegations were unfounded and closed the case. Sir Richard was never arrested or charged.

He had obviously been gravely wounded, especially because of the nature of the allegations. Not only was his reputation grossly injured, till he had to sell his house and move, he also claimed to have suffered tremendous loss of business.

Most people in his situation, though feeling aggrieved, would have assumed all this was kosher, an honest exercise of the police right to investigate and the media’s exercise of the freedom of expression and right of the public to be informed on matters public interest.

Not so Sir Richard. He proceeded to lodge a claim against the police who apologised to him for causing “distress and humiliation” and paid him GBP400, 000 for breaching his rights by giving his private information to the BBC. The BBC refused to accept liability causing him to file a case in the British courts for breach of privacy.

Media misconduct

This week, Sir Richard was awarded a handsome compensation of GBP210, 000 which included a sum of GBP20, 000 for aggravated damages for BBC’s nomination of the story for an award.

Though the facts of the case are peculiar, including elements of media misconduct and malice in the process, the case and the judge’s findings have far reaching implications on the appropriate balance between freedom of expression and the right to privacy, both of which are protected by our Constitution.

Though the case was decided by a British court, the law on which it was decided is the same as Kenya’s and it is only a matter of time before Kenya’s courts determine a complaint in the same manner. It will no doubt limit the media’s freedom of expression especially when publishing information about persons under investigation before they are charged.

The delicate balancing between the rights to privacy, media’s freedom of expression coupled with the right of the people to know is especially critical in this Internet age when the broadcast of adverse information is instantly widespread and can cause untold reputational damage.

The balancing of rights is a real issue in Kenya where being investigated is almost akin to being guilty! The media is awash with private details of people under investigation with no care and concern over their presumption of innocence or their right to privacy.

We have been treated to running commentaries of people’s homes being raided and their accounts being blocked. Summons to EACC’s revolving doors are covered by the media with relish. Yet their findings of innocence are never broadcast or treated with similar fanfare.

The latest attacks on privacy and basic decency was seen last week when homes of Kenya Power suspects were raided at midnight without justifiable cause, since they had not refused to obey police summons.

Obviously, one understands the anger that Kenyans feel about frauds being committed by public servants in the various corruption scandals.

But does that anger trump due process and all other rights that these people, who are in any event entitled to the constitutional presumption of innocence, are entitled to?

We must appreciate that the short-lived joy we get from seeing people being harangued by security forces will soon be undone when police power is abused or when courts make awards for compensation for wrongful arrests or dismiss prosecutions for the manner in which the process is conducted in breach of basic constitutional protections.

It is accepted that there is no right thinking Kenyan who does not support the fight against corruption for we have all paid a heavy price for this cancer and it was going to destroy our country. But if this fight proceeds in violation of the law, it will end up being a hollow jungle war and only the corrupt can win in the end.

The writer is an advocate of the High Court of Kenya