The limits of absolute privilege in Parliament

BY WAHOME THUKU

Whenever a Member of Parliament makes a defamatory statement against another person during parliamentary proceedings, a challenge follows to the MP to repeat the remarks outside the House.

Very few MPs take up the challenge, knowing that the consequences could be dire. And as former Kisumu Town East MP Gor Sunguh can attest, ‘outside the House’ need not be too far off. Repeating defamatory words at the Parliament’s car park is good enough to put one in trouble.

Sunguh was elected in 2004 to chair a Parliamentary Select Committee to investigate afresh the 1990 death of Foreign Affairs Minister Robert Ouko.

During the proceedings of the committee in February 2004, Ouko’s longtime lawyer George Oraro was maliciously implicated in the disappearance of the minister and his subsequent death.

Oraro wrote to the Committee on February 27, 2004 asking for an opportunity to cross-examine those who had implicated him and to respond to the allegations.

On March 1, 2004, he held a Press conference complaining that the committee had violated his right to a fair hearing. He also wrote the same complaint to the National Assembly Speaker and the Clerk.

On March 4, 2004 Sunguh wrote to Oraro thus: "In the ordinary ordering of values, the life of the human being is ranked higher than reputation of individuals.

"For this reason the committee is not a platform for individuals to sanitise their reputation...you will be accorded the opportunity to testify before the committee, but the decision as to who, when, where and what order witnesses will appear is that of the committee alone."

So far, Sunguh was playing on safe grounds protected by the National Assembly (Powers and Privileges) Act. That law protects MPs and other persons from any civil or criminal action for words spoken or written in a report to the National Assembly or the committees.

But on Saturday March 6, 2004, while walking out of Parliament Buildings, Sunguh bumped into a group of journalists at the MPs’ parking area. They sought an interview on the committee’s proceedings and Sunguh made a quick but mouthful bite for TV cameras.

"I can assure you we are getting to the bottom of this matter and hence the hullabaloo we are hearing outside there," he remarked.

"That is why there is a lot of hustle because they know we are going to find the truth and the truth we shall find. I have the evidence — eyewitness.

"There is concerted people within and outside Parliament, particularly those that have been mentioned to put some spanner in the works so that this thing cannot go on and I can assure you we are not going to stop...nobody is gong to dictate to us in which manner we are going to call witnesses.

"I can assure them they will be accorded the chance, the opportunity to say what they have to say and we will cruser (sic) them." The remarks were aired unedited by a section of the media. Oraro understood them to refer to him, given his correspondence with Sunguh.

On November 10, 2004, almost a year later, he wrote to Sunguh demanding an apology. No response came. A week later he filed this suit for defamation at the High Court.

Sunguh filed his defence on June 10, 2005. Lady Justice Kalpana Rawal heard the case, which took seven years in court.

Oraro’s lawyers demonstrated how the words were directed to their client by analogy even without expressly naming him.

Sunguh argued that the statement was absolutely privileged since it was made within the precincts of the National Assembly. He claimed there was no proximity in time between Oraro’s press statement and his own statement.

Further he argued that his statement was generalised and there were other persons also mentioned adversely in the proceedings.

His lawyer went to the definition of the words "precincts of the Assembly" to include the chamber, every part of the building, Parliament officers, galleries and places for use and accommodation of MPs, strangers, members of public, press galleries, forecourt, yard, garden and sought to have the suit dismissed.

Casual attire

In her ruling, the judge noted that Sunguh had conceded having made the remarks at the car park of Parliament on Saturday and the occasion was not the formal sitting of the committee.

In fact, he was dressed in casual attire when he addressed journalists. He also agreed that the statement had not been prepared before hand. 

"The principle and the statutory provision of absolute privilege have to be given strict interpretation and the statement made in a car park of the building of the National Assembly cannot be covered under either of the aforesaid two provisions," she reasoned. 

The judge analysed Sunguh’s statement in great detail and applying the law and facts, concluded that it was in reference to Oraro.

"From the facts of this case, the statement fitted the plaintiff (Oraro) perfectly," she held.

"The statement did impute defamatory connotation against the plaintiff suggesting that he could be one of the persons involved in the serious event which shamed the nation." 

Sunguh himself had conceded that Oraro was one of the people adversely mentioned by witnesses during formal proceedings.

"What the defendant did was in my view to spill his sentiments outside the Parliament," Rawal held

She said the contents of the statement were embarrassing to the social and professional reputation of the lawyer. And despite the time lapse, the suit had been filed within the limitation of time stipulated under the Laws of Limitation Act Cp 22. 

Rawal noted that Sunguh had refused to tender an apology even during the proceedings of the case.

And though the MP was not actuated with malice when he made the remarks, the court held that he was reckless.

On July 14, this year, the judge awarded Oraro Sh3 million in damages for defamation and also ordered the former MP to offer a suitable apology to the lawyer.

Sunguh reserves right of appeal.