May 28th 2017

Media / Watchdog

Power to social media, journalists as judge strikes out criminal libel

According to Section 194, any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty.

By John Onyandojonyando@kenyafreepress.comMonday, 06 Feb 2017 14:16 EAT

The Supreme Court Building, the seat of Judicial power in Kenya. (Photo: Oscar Ndunda/Kenya Free Press).

The High Court today declared Section 194 of the Penal Code, which provides for criminal libel, unconstitutional. This law attracted a jail sentence of up to two years, a fine or both for offenders found guilty under it. Justice John Mativo ruled that the law violates the right to freedom of expression as guaranteed under Article 33 of the 2010 constitution.

Media stakeholders including the Kenya Union of Journalists had petitioned the Police Service to stop prosecuting journalists under the law but their calls were not heeded. It took a controversial court case in which two people, Jacqueline Okuta and Jackson Njeru, were defending themselves separately from a criminal defamation case filed by a city lawyer to have the law annuled. 

The lawyer initially had the two charged under Section 29 of the Kenya Information and Communications Act (KICA), but the High Court (Justice Mumbi Ngugi) declared that law unconstitutional mid last year. His case was that Ms Okuta and Mr Njeru had misused telecommunications device and caused anxiety to him for publishing posts on Facebook comments that he felt disparaged his character. 

But the petitioners challenged the constitutionality of the law, arguing that the section sets limitations to freedom of expression against empowering provisions of the Constitution. They sued Attorney-General Githu Muigai and Director of Public Prosecutions Keriako Tobiko. The media rights NGO Article 19 was listed as an interested party in the case.

According to the judge, criminalizing defamation is unjustifiable on grounds that it infringes on freedom of speech. “Any continued enforcement under this section will be unconstitutional,” the judge ruled, saying there is already an appropriate and satisfactory alternative remedy for defamation, and that the criminal offence is “excessive and not justifiable”.

According to the Section, any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel. The alternative remedy the judge recommended is provided under Defamation Act Cap 36, which deals with civil libel and slander/civil defamation. 

Offences under civil defamation attract monetary compensation, injunctions and other remedies. This is the practice in democracies the world over, where offences by journalists are never custodial. The publications under this Act can be defended through the defences of truth, fair comment, qualified privilege, limitation of actions act, consent among other principles, according to Dr Nyakundi Nyamboga, a communication law lecturer at Moi University who told this website that the ruling "was long overdue".

Dr Nyamboga's research shows that the law which buttressed single party dictatorship was applied selectively in the multiparty era to stifle dissent. Sometime in the 1990s, it was already recognised that the law was inconstistent with a democratic state. When the Standard newspaper journalist Kamau Ngotho was charged under the law, the case generated public outcry forcing attorney general Amos Wako to enter a nolle prosequi, with the expectation that Parliament would move to repeal the law. 

The repeal never happened, and the law was used mainly to intimidate journalists from the then vibrant alternative press for whom the mainstream media never advocated in case of prosecutions. Even the more democratic NARC government made good use of the law. In February 2003, David Matende, then running the weekly Monitor, was charged under the law. In court, the magistrate advised that the charge be amended since criminal libel had become controversial, and Matende was eventually charged under Section 66 (publishing false statements).

Soon thereafter, Mburu wa Muchoki of The Independent was charged and jailed for six months for writing material defamatory of then Justice Minister Martha Karua. Two journalists from the website jaluo.com were also charged and sentenced for a year under, with the option of a Sh180,000 fine. "Effectively, we had a system of selective justice where this law could be applied to some class of journalists and not to others," Dr Nyamboga, who is the author of the book Journalists and the Rule of Law, tolf this website.

The don said that as social media is flourishing, the law now applies not only to journalists but to everyone who generates content that can be deemed defamatory, incuding text messages, Facebook posts, and mass emails. "What this ruling means for media and other generators of content is that they would no longer live under fear of being arrested, arraigned for criminal libel and possibly jailed for such publications. All they require to do is to ensure that whenever they publish such statements, they have justification for it as outlined above".

Dr Nyamboga explained that the ruling also means that journalists and other generators of news and information content would no longer fear publishing defamatory statements about the dead as the AG will no longer have power to OK criminal liber in favour of families of the dead as happened in the past. While recognising that the ruling can still be appealed, Dr Nyamboga said it has brought a pleasant end to an era of selective justice.

The ruling was universally welcomed by members of the media fraternity. KUJ secretary general Eric Oduor said it carried victory for the industry as a whole. "This is victory for press freedom," said Mr Oduor, who has been handling a case in which a journalist in Kajiado County is currently facing jail term under the law. Kurgat Marindany, who is the Star newspaper correspondent in the region, is accused of defaming senior officials of the Kajiado county government.

Former KUJ chairman Tervil Okoko said, "Justice has finally won. This law has for a long time been used to kill justice, media freedom, freedom of expression and democracy. We in the media hail this ruling as conscientious". Mr Matende, who after his jailing served as KUJ chairman, told this website, "This is a landmark ruling, and I welcome it. The judge has provided the direction Kenya should be taking."

Jared Obuya, a journalism lecturer at Moi University who is a former KUJ secretary general, said, "This ruling will empower journalists especially as we head into the election, when critical voices can be targeted for punishment for flimsy reasons". Dr Obuya said that civil defamation is the way of democracies. 

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