How politicians exploit weak laws to mint millions and silence critics

Former powerful Cabinet minister, the late Nicholas Biwott.

Awarded Sh27 million for libel, Chris Murungaru has joined a small group of (former) powerful public officials who have recovered substantial damages following criticism made against them for roles connected with their public offices.

In this category, the most successful libel claimant was the once powerful Cabinet minister, the late Nicholas Biwott, whose award of Sh30 million in 2000 remains the highest in Kenyan history.

The award was given against British pathologist Ian West and journalist Chester Stern, over the contents of a book linking Biwott to the murder of Robert Ouko.

Earlier the same year, Biwott had recovered Sh10 million from two bookshops that stocked copies of the book. Two years later, Biwott recovered a further Sh20 million for libel from The People over allegations of corruption in relation to the Turkwel dam project, and a further Sh7.5 million from Text Book Centre for selling copies of another book Biwott considered defamatory. In total, over a period of two years, Biwott recovered Sh67.5 million for libel, making him the most defamed person in Kenyan history.

The awards against the bookshops followed a set pattern: a suit would be filed, followed by out-of-court negotiations and then a settlement recorded in court. All the bookshops in questions were owned by Kenyan Asians, a minority and politically vulnerable community.

When he gave Biwott the Sh30 million award, Justice Visram, reasoned that if bookshops had agreed to pay Sh10 million, yet their only transgression was to stock a book whose contents turned out to be defamatory, the authors of the book must be liable for a lot more.

Drowning the critics

American professor, George Pring, coined the term “strategic lawsuit against public participation” (SLAPP) to describe suits that intended to intimidate and silence critics by burdening them with the cost of a legal defence. SLAPPs take various forms but are often based on libel because libel is the only type of legal claim with a “reverse onus”, where rather than the claimant being required to prove her case, the defendant bears the burden of proving her innocence.

The primary reason for a SLAPP is not to win but to drown the defendant in expensive and time-consuming litigation as a way of silencing unwanted criticism. Those who bring SLAPPs are often involved in forum shopping, or “libel tourism”, where the decision on where to file the lawsuit is dictated by calculations on chances of success, rather than where the claimant or defendant lives.

Long before facing Murungaru in court, Githongo had fought off a suit filed by Anura Perera in 2006 in London. Muin Malik, a member of the family of AH Malik, who represent interests of Pereira in Kenya, also unsuccessfully sued Githongo in London the same year. While neither suit flourished, cost and inconvenience to Githongo would have been an issue, since he does not ordinarily live in the UK where these plaintiffs chose to sue. 

In 2006, it was easy to sue in London, regarded as defamation capital of the world because of easy access to the jurisdiction and high awards.

Another common feature of SLAPPs is the inclusion of unnecessary parties in the suit, and the exclusion of necessary parties. The Biwott case demonstrates this approach. The late minister first sued bookshops that had stocked a book, surely the softest targets available, and used his success against them to consolidate his image as an aggrieved claimant deserving of the protection of the court. Emboldened by success against one set of actors, he then went after the Text Book Centre.

Similarly, Murungaru selected Githongo as the sole defendant and this is highly significant. In law, co-defendants are “jointly and severally” liable. This means co-defendants are liable together and each is liable alone as though the others did not exist.

If Murungaru had sued any newspaper that was open for him to sue, it would have effectively underwritten Githongo’s inability to pay the damages awarded to Murungaru. He does not have a rich newspaper with which to share the burden of finding Sh27 million to pay Murungaru.

As Murungaru could not seriously have expected that Githongo would find the money to pay the usually-large libel awards, it is reasonable to conclude that a financial recovery was not high among his priorities when selecting defendants.

Another common feature of SLAPPs sweeping claims that are difficult to disprove: for example, Murungaru claimed, and the High Court actually found, that he lost his seat as a Member of Parliament in the 2007 election because of the report by Githongo. The basis of that finding was the oral testimony of a Murungaru supporter.

SLAPPs offend the freedom of expression and are unconstitutional. In other countries, there is a developed discourse on SLAPPs, and legislation that seeks to limit them. However, Kenyan jurisprudence has not been developed into recognising the danger that malicious plaintiffs represent to expression rights.

When, in 2002, Justice Joyce Aluoch gave Biwott the Sh20 million award, she boasted that “beginning with the decision in (the Sh30 million Biwott case), the High Court has adopted a stern approach to libel by both print and electronic media, authors and publishers of books and magazines.”

The reason for this, she explained, “was not to stifle them, but to encourage mature and responsible journalism.” Thus, rather than protecting liberties, the Kenyan judiciary has given itself the agenda of promoting mature journalism, interpreted as a brand of journalism that does not upset the rulers of the country.

Going through past libel awards, a second reason emerges that explains the flourishing of libel litigation in Kenya. In September 2000, the High Court awarded Justice Evan Gicheru, then a judge at the Court of Appeal, Sh2 million for libel. This was three months before the Visram award to Biwott. Although the judgment unequivocally vindicated him, Gicheru filed an appeal seeking an enhancement of damages. Eventually, the Court of Appeal would enhance the award to Sh6 million. The enduring legacy of the Visram decision was a realisation that being libelled is not necessarily bad, as one can make money out of it, something even a judge of appeal did.

General problems should face all segments of society and not just a few. This, however, is not true about libel where besides politicians, lawyers are predominant in the list of past claimants. What explains a society where only politicians and lawyers are libelled, while the rest seems to be fine? As with Biwott and Murungaru, a large number of the lawsuits brought by politicians are SLAPPs, seeking to silence criticism.

Spurred by the runaway awards, the courts have succumbed to aggressive lawyering that is based on tendentious complaints that are technically actionable but substantively hollow. The example of modern football provides a good analogy.

Play for a penalty

One of the best things that can happen to the attacking football team is to draw a foul in the penalty area of their opponents as this attracts a penalty, and the possibility of an easy goal. As part of the modern game, teams now play for penalties. Because of the high awards, libel in Kenya has become like penalties in modern football, something to play for. Because lawyers know the rules, they have become the best players and are over-represented as claimants.

Other than giving runaway awards, Kenyan courts have been responsible for the most conservative and unlettered decisions that reveal a lack of understanding as to the place of expression in a free society. As a result, defences that are available elsewhere are not available in Kenya. For example, the idea that public officials must tolerate higher levels of scrutiny and criticism, a defence embraced elsewhere, is not available in Kenya. Also, the idea that people in public life, who have a higher possibility of correcting erroneous things against them than the rest of the population, is also not developed in Kenya.

Because the courts have failed to develop the law, and are clawing back on liberties instead, the need for legislative interventions is now evident.