Jailing of journalists over defamation spells doom for media freedom

This week, a Kiambu magistrate sentenced a journalist to six months in jail or a fine of Sh50,000. Contempt of court proceedings were initiated after complaints from the prosecution side regarding misleading reporting on a State witness' integrity over how he acquired his wealth. The media house admitted the story was inaccurate and removed it from all their platforms.

Media outlets reported that the trial magistrate said defamatory stories were punishable under the law. However, should a journalist be criminally sanctioned for a story in light of the 2017 Justice John Mativo decision that decriminalised defamation? The judge held that criminalising defamation was harmful since it brought with it chilling possibilities of arrest, detention, and imprisonment that are manifestly excessive in their effect and unjustifiable in modern democratic societies.

However, journalists are not free to publish false, misleading or defamatory content about Kenyans. Article 33 (3) requires every person to respect the rights and reputations of others while exercising freedom of expression and media freedom. Notably, respect for the rights and reputations of others is not included in the list of areas where freedom of expression does not extend.

Article 33 (2) of the Constitution lists propaganda for war, hate speech, incitement to violence and advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm based on discrimination. As far as I can tell, the prohibition pertains to speech that can disrupt peace or cause insecurity. In contrast, defamation is excluded because it involves the infringement of rights, which creates legal liability.

Similarly, Article 24 of the Constitution outlines how and when rights can be limited, which can be summed up as a three-part test: First, the limitation must be clearly written down. Second, any limitation must protect a legitimate aim which in this case is the reputation of others. Third, any limitation must be necessary and proportionate in a democratic society. Finally, a restriction cannot be justified if less restrictive, accessible means exist, such as civil proceedings.

In this sense, criminalising defamation is a disproportionate means of protecting reputations or even defending the court's honour. The High Court ruled categorically that it is unnecessary to criminalise defamatory statements. Despite repealing criminal defamation, it has become apparent that other laws in the statute books and others promulgated later have the same effect.

Contempt of court provisions, which led to the present case, criminalise publications or representations which scandalise or tend to scandalise courts, prejudices, or interferes or tends to interfere with the due course of any judicial proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice. Aside from the sentence, the court's order demands an apology and a retraction, which reads like a criminal defamation order.

Strangely, the Computer Misuse and Cybercrimes Act was passed the same year criminal defamation was declared unconstitutional, which criminalised the publication of false information digitally likely to harm a person's reputation. The law imposes a fine of Sh5 million or 10 years in prison or both. Bloggers Association of Kenya challenged the Act unsuccessfully but has appealed.

The Constitution establishes an excellent framework for freedom of expression and media freedom. The High Court can decide whether your rights have been infringed and award damages including in cases of defamation. If you feel aggrieved, you can also file a complaint with the Media Complaints Commission.

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