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Time to change defamation laws

COMMENTARY
By Henry Maina | September 8th 2016

Recent decisions on defamation suits against the media and the huge awards bring to question what should be the proper balance between media freedom and protection of individual’s reputation in a constitutional democracy.

Defamation law protects an individual’s reputation or feelings from unwarranted attacks especially from false statements.

However, freedom to criticise and question without malice remains the cornerstone of argument and debate. Thus there is outright need for a proper balance between protection of an individual’s reputation and freedom of expression of others.

The work of investigative journalists is destroyed for fear of libel. First, libel laws have a chilling effect on free speech affecting public interest issues like human rights abuses, grand corruption, miss-governance and corporate malpractice.

Second, as proven by recent and past defamation cases by President Uhuru Kenyatta and former Subukia legislator turned media owner, Koigi Wamwere, libel laws are unnecessarily complicated, and defences are uncertain and narrow. The laws are biased towards the claimant.

Third, fighting a libel case in Kenya is five times the average in Africa while damages and costs range at an average Sh20 million for politicians, senior lawyers and judges. In awarding costs to both plaintiffs and defendants, courts should pay particular attention to the potential effect of the award on freedom of expression.

Four, legal threats stifle creativity and ensure the culture, media and art industries do not take off in full as most artists, comedian, poets, musicians withdraw from writing for fear of long legal battles and huge and crippling damage awards.

Given the challenges, it is prudent that those interested in the furtherance of democracy, accountability and transparency take on board efforts to reform the libel laws at least to protect writing in public interest.

There are two threads in the Uhuru- Koigi cases. While Uhuru had asked for Sh194 million the court awarded him Sh6 million against the Nation. Koigi lost time and litigation costs; the courts were clear that libel suits would be used not to protect feelings but reputations.

This is because how one feels over an issue is a subjective matter but assessment of damage to reputations must be objective hence the decisions in the courts.

Koigi Wamwere had sued one of the newspapers after they wrote a story about hostile reception the then legislator had during a meeting they held with other leaders in Nakuru campaigning for a constitution with a presidential system of government in 2003 before the 2005 referendum.

The second thread in the cases was matters of public interest cannot be foreclosed by an individual libel suit. Kenyans are still discussing the system of government six years after they passed the constitution.

How could the High Court rule against the Standard Group in a public interest case (Visram vs Standard Group) without also considering that the appointment of Justice Alnashir Visram as the Chief Justice by Former President Mwai Kibaki did not follow due process?

Even where the LSK statement on the suitability of Justice Visram to be appointed the Chief Justice were to be shown to be false, the media house should have benefited from a defence of reasonable publication.

This defence is established if it is reasonable in all circumstances for a person in the position of the defendant to have disseminated the material in the manner and form they did.

That the High Court did not recognise a reasonableness defence or an analogous defence based on the ideas of due diligence or good faith puts to question the damage awards and behoves all Kenyans to ask who is well served by such decisions? Is it the democracy that Kenya should be or a small clique of elites?

Secondly judges do not require any special protection apart from that which the law accords them to facilitate their work and ensure they are not undermined when adjudicating on disputes.

That Kenya keeps both criminal and civil defamation laws shows how our antiquated disproportionately chilling approach to freedom of expression remains.

Not only is freedom of expression affected but access to information on important public interest issues and events not least who is fit to be the next Chief Justice, who funded the post-election violence, who took part in the collapse of Uchumi or who authorised the dumping of toxic waste in North Eastern and in Ngong forest.

This is because defamation laws are being used for political expediency as claimants seek to sanitise themselves. It is thus necessary that the libel laws are reformed not least for two reasons.

First, that such reforms open possibilities of protection of public interest without preventing access to justice for all and not just political elites.

Second, such reforms ought to bring in the necessary reforms on costs with a view to making the laws clearer, fairer and fit for purpose for both the claimant and defendant in the 21st Century.

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