Following the departure of President Daniel arap Moi’s media-bashing regime, the political vacuum created was filled by people many journalists believed would open the democratic space necessary for free speech and courageous journalistic exposes. Both the Narc leaders and journalists believed the final outcome of the demise of Moi’s administration would be better and friendlier relations between the new Executive and the Fourth Estate. That expectation, however, proved to be futile. On the government side leadership was gradually becoming just as secretive as Moi’s rule and on the media side it was quickly realised that survival depended on upholding professionalism through investigative journalism which, as we all know today, exposed new skeletons in the young government’s cupboards.
As the felicity of prose prospered wananchi began to respect the media and accept the Fourth Estate not as an appendage of the government but as a powerful institution capable of criticizing those in power and abusing it. Among the first journalists to take the publish-and-be-dammed attitude in exposing corruption in Mwai Kibaki’s regime was Kamau Ngotho of The Standard; but in doing so he made some powerful ministers, particularly Mr. Chris Murungaru, to be so appalled that he made a public statement early this year threatening to take drastic steps against journalists like Kamau Ngotho. No sooner did Murungaru make his threat than Ngotho was quickly arrested and charged with criminal libel.
The Anglo Leasing Scandal
The story that annoyed the government most concerned the now well known Anglo Leasing scandal. Though still convoluted and obscure, the scandal sprawled across Kenyan’s both print and electronic media. Murungaru was obviously rattled by the ferocity of the media onslaught and when he rolled out his gun Ngotho was behind bars. It took the condemnation of international media institutions to make the government water down its fury and realize it was heading for a fight not only with local journalists but with the entire journalistic fraternity in the free world. The international pressure was so great that on January 17th this year the Attorney General, Amos Wako, decided to drop charges against Ngotho.
Soon after that Reporters San Frontières (RSF) praised the Kenya as one of the few countries in Africa that was determined to ensure that press freedom was respected. Realizing that Kibaki’s Government cared so much about what the Western world thinks about it the RSF emphasized that Wako’s move was supported by Western Embassies and reiterated that this kind of initiative should be taken more often. According to RSF the charge against Ngotho for implicating a government official and an associate of the President in alleged corruption outraged many ambassadors, who noted that the prosecution would violate certain provisions of the constitution.
In the eyes of many international journalistic organizations, the Ngotho case exposed Kibaki’s government as a dictatorial one. Long before he was freed, both the Committee to Protect Journalists and the International Federation of Journalists had called on press freedom advocates to write protesting letters to the Kenyan Government.
The world was about to forget the rough times journalists in Kenya go through when on May 2nd this year the First Lady ,Lucy Kibaki, reminded everyone that she was not so happy with the media in this country and was not intending to turn the other chick. In that feeling she was joined by the First Lady in Nigeria, Stella Obasanjo , who also wanted journalists in that country to realize that she was not just another market woman they could play about with. The two ladies decided to take drastic steps against the media and their actions made the RSF to express shock over what they saw as the abuse of authority. In Nairobi Lucy went to the premises of Nation Media Group and spent five hours complaining about “unfair” reports. The nature of her complaints exploded beyond her control when she was televised assaulting a KTN cameraman ,Clifford Derrick Otieno, who was filming the First Lady as she was shouting to journalists in the newsroom. She was clearly shown slapping Clifford.
Abuse of Authority
On May 6th RSF expressed shock over the abuse of authority displayed by the wives of Presidents Mwai Kibaki of Kenya and Olusegul Obasanjo of Nigeria in assailing and imprisoning journalists in separate incidents on May 2, 2005, in response to critical press reports. In a statement the French organization said: “We are stunned that the Presidents’ wives went so far just to seek personal revenge. We therefore call on Lucy Kibaki to apologize to the cameraman she hit and we call on Stella Obasanjo to have the Midwest Herald’s publisher released from prison immediately as such meddling harms the image of the respective countries.”
Unfortunately for both Kenya and Nigeria, statements issued by the international organizations are circulated all over the world and we are made a laughing stalk as a people with little respect for free speech when we pretend to be democracies. On May 20 this year RSF issued yet another global statement and voiced concern over what it called “current state of relations” between the Kenyan media and President Mwai Kibaki’s administration, which had deteriorated sharply over the past two weeks in a series of public clashes that were all the more shocking as Kenya was regarded as a country that had enjoyed relative stability until then. The French said President Kibaki should realise this battle with the privately owned media would only lead to an even worse situation. The mounting threats, harassments and attack against the press were not only very bad examples for Kenyan society, but also the sign of something beginning to go awry with the country’s democracy.
One of the most abominably notorious characteristics of despotic regimes out to muzzle the media is to make use of the courts as battlegrounds and the laws of libel – both defamatory and criminal – as lethal weapons against outspoken journalists. The awards of very high damages to plaintiffs complaining of exposure to hatred, ridicule and contempt by the media have made many observers of Kenyan Fourth Estate’s relationship with the Third Branch wonder whether or not the Bench here is not used as a political weapon. One such award took place in May this year when a Mombasa High Court ordered the Nation Media Group to pay ten million shillings in damages for allegedly libeling Justice David Musinga in a 1999 when Musinga was a lawyer.
International critics of mistreatment of journalists in Kenya were quick to unearth this phenomenon as they observed that Press offences in Kenya were no longer punishable by imprisonment but through disproportionate sums in fines and damages ordered by judges and magistrates. Sometimes the Attorney General stepped in to disrupt the flow of justice whenever journalists were the victims. The most recent example of this was when Wako blocked legal action against Lucy Kibaki as Clifford Derrick Otieno wanted the assistance of the Judiciary to make sure that justice was not only done but it was manifestly seen to be done following the Nation House May 2nd disastrous behaviour by the First Lady. Though unknown to most Kenyans, Wako’s action was globally condemned by no less an organization than the International Press Institute (IPI) which expressed its concern about the decision to discontinue criminal legal proceedings against Lucy Kibaki. Clifford Derrick Otieno had filed the criminal proceedings against Lucy on May 16th this year.
According to the IPI, the global network of editors, leading journalists and media executives in over 120 countries, the exercise of nolle prosequi by Amos Wako should not have been used as a political tool to frustrate the legislative rights of Kenyan citizens to pursue legal proceedings against politically powerful people who habitually disregard the law. The IPI saw the move by Wako as political in nature and intended for the sole purpose avoiding undue embarrassment to the political leadership of Kenya. It added that the fairness of any legal system rests on the belief that the rule of law is applied without fear of favour to any individual, group or institutions. The international organization told the world that the law had been applied in Kenya in an arbitrary fashion and revealed what it called twin-track legal system that assists those in power, and their partners, while denying rights to ordinary Kenyan citizens such as Otieno.
International Watchdogs
It is very easy to criticize international watchdogs and whistleblowers commenting negatively against Kenyan anti media heavy handedness and hostility to journalists as unfairly imposing but it must be remembered when good things happen in our courts international organizations also notice. When, for example, the Sunday Standard Managing Editor, David Makali was acquitted of criminal charges on April 4th this year the Committee to Protect Journalists (CPJ) wrote from New York to tell the world about the case which was pending since 2003 when the paper published leaked excerpts of confessions made by suspects in the Odhiambo Mbai murder case. Acquitting Makali Nairobi Chief Magistrate Aggrey Muchelule said to convict Makali would contravene guaranteed access to official information.
“We welcome this verdict and interpretation it provides in favour of Press freedom,” said Ann Cooper, Executive Director of CPJ. “We hope this verdict will help to ensure that all Kenyan journalists are free to report on matters of public interest without fear of reprisal.” Soon after those words of caution from a respected international organization were circulated all over the world, the court imposed a heavy damage of three million shillings against Royal Media Service to Foreign Affairs Minister Ali Makwere. The suit arose from a story published in the Press alleging that a Cabinet Minister, an Assistant Minister and an MP had been filmed by police along Nairobi’s Koinange Street picking up prostitutes. The defendant attempted to bring a witness, Miss Immaculate Mwende, obviously trying to use the defence of justification, but Makwere’s lawyer successfully blocked her from testifying.
According to a respected media law scholar, G.F.L. Bridgman, justification is the most complete and final defence that can be made to libel (by proving) that the words complained of were true in substance and fact. He argues that this defence to an action will be seen when it is appreciated that an action for defamation is an action for injury to reputation and a man cannot recover damages for injury to a reputation, which he either does not, or ought not to possess. To plead justification successfully, he says, the whole of the libel must be shown to be substantially true. But Justice Phillip Ransley agreed with the plaintiff’s lawyer and rejected Mwende’s evidence even before it was presented to the court. Instead he seemed to agree with Makwere’s implied claim to have evidence of the depth of degradation to which the Kenya media would stoop to throw mud at Kibaki’s administration by alleging that he had made a nocturnal visit to Nairobi’s red light district along Koinange Street.
Both journalism and legal scholars have always regarded libel laws as possible political weapons to muzzle free speech. According to Donald M. Gillmor, Professor of Media Ethics and Law at the University of Minnesota, libel litigation has become a devastatingly effective weapon for silencing those who dare to challenge the morality of power, privilege, and prestige. He says plaintiff and defendant battle in a confined judicial arena (where) public discourse is circumvented. He argues that “libel law is a powerful weapon for shutting up those with whom you disagree.” Recent awards of huge sums of money, including a 14 million damage given to Joseph Kamotho, against the Nation Media Group, inevitably make one wonder whether there is some collision between the Judiciary and the media. The awards have provoked so much soul searching and debate in both media and academic circles making the two groups have reservations about whether libel cases in Kenya are conducted in a fair way.
Frequent Libel cases
The toughest question to answer is whether frequent libel cases and high damage awards are healthy for freedom of expression. Whatever court pronouncements may be on this issue the fact remains that the Kenyan society will always need both a probing and vigorous Forth Estate to achieve real transparent and accountable democratic uprightness needed in a free society. Indeed even court proceedings themselves require an enterprising media to ensure that justice is not only done but it is manifestly seen to be done.
Yet, when all is said and done, both the Fourth Estate and the Third Branch need one another. In the words of Judge Judith S. Kaye, the Chief Judge of the State of New York: “We live in a society awash in media accounts of law, feeding a seemingly insatiable public thirst for legal subjects. Pick up a newspaper , flick on TV, and chances are you will find depictions – real of fictional – of the latest trial of the century, analyses and current trends in crime or punishment, reports on the doings of high-profile attorneys and plethora of pundits commenting all the above.” Rather than imposing heavy damages against the media, Kenyan judges, should try to implement Judge Judith’s call to both the Bench and the Fourth Estate. To begin with she suggest that there should be a more balanced coverage of courts which would recognize the limitations of judicial speech and seek out the views of those with less access to media coverage – representatives of the local bar , for example , or academics – when legal decisions are criticized.
She says this may require legwork, but given the enormous power of the media to shape public opinion, and the tremendous role that the public confidence plays in the effectiveness of the judicial branch the extra effort is surely warranted.
From colonial days the various Executives in Kenya have had their quarrels with the independent Kenyan Press. The free Press, likewise, have not been particularly happy with the performance of those in political power. The fundamental misunderstandings have always been based on two divergent outlooks: The politicians in power have always wanted to manipulate the Fourth Estate to get their best image across to the wananchi and yet the journalists have always wondered how they could fulfill their obligation to publish the truth about information and news without proper accessibility to vital information without governmental hindrances.
It is probably with this in mind that President Mwai Kibaki recently announced at the International Press Institute conference in Nairobi that his Government intended to introduce a Freedom Of Information (FOI) Act. No sooner did the President make that announcement than Raphael Tuju, the Minister for Information, published a FOI Act of 2005. The draft Act has both good and bad news for journalists. The good news is to be found in Section 45 of the Act which proposes to repeal the draconian Official Secrets Act CAP 187. Among the bad news that is brought about by the Tuju Act is to be found in Section 7(2) which says a person is not entitled to obtain access under this section to a document or a part of document that became a document of agency before the date of commencement of this part. In a layman’s language it means journalists will not be able to get accessibility to important information of past dirty activities of the powerful such as the origin of Goldenberg scandal and massive land grabbing under Jomo Kenyatta. Of what use then, one is tempted to ask, is Tuju’s FOI Act to this country?
As the felicity of prose prospered wananchi began to respect the media and accept the Fourth Estate not as an appendage of the government but as a powerful institution capable of criticizing those in power and abusing it. Among the first journalists to take the publish-and-be-dammed attitude in exposing corruption in Mwai Kibaki’s regime was Kamau Ngotho of The Standard; but in doing so he made some powerful ministers, particularly Mr. Chris Murungaru, to be so appalled that he made a public statement early this year threatening to take drastic steps against journalists like Kamau Ngotho. No sooner did Murungaru make his threat than Ngotho was quickly arrested and charged with criminal libel.
The Anglo Leasing Scandal
The story that annoyed the government most concerned the now well known Anglo Leasing scandal. Though still convoluted and obscure, the scandal sprawled across Kenyan’s both print and electronic media. Murungaru was obviously rattled by the ferocity of the media onslaught and when he rolled out his gun Ngotho was behind bars. It took the condemnation of international media institutions to make the government water down its fury and realize it was heading for a fight not only with local journalists but with the entire journalistic fraternity in the free world. The international pressure was so great that on January 17th this year the Attorney General, Amos Wako, decided to drop charges against Ngotho.
Soon after that Reporters San Frontières (RSF) praised the Kenya as one of the few countries in Africa that was determined to ensure that press freedom was respected. Realizing that Kibaki’s Government cared so much about what the Western world thinks about it the RSF emphasized that Wako’s move was supported by Western Embassies and reiterated that this kind of initiative should be taken more often. According to RSF the charge against Ngotho for implicating a government official and an associate of the President in alleged corruption outraged many ambassadors, who noted that the prosecution would violate certain provisions of the constitution.
In the eyes of many international journalistic organizations, the Ngotho case exposed Kibaki’s government as a dictatorial one. Long before he was freed, both the Committee to Protect Journalists and the International Federation of Journalists had called on press freedom advocates to write protesting letters to the Kenyan Government.
The world was about to forget the rough times journalists in Kenya go through when on May 2nd this year the First Lady ,Lucy Kibaki, reminded everyone that she was not so happy with the media in this country and was not intending to turn the other chick. In that feeling she was joined by the First Lady in Nigeria, Stella Obasanjo , who also wanted journalists in that country to realize that she was not just another market woman they could play about with. The two ladies decided to take drastic steps against the media and their actions made the RSF to express shock over what they saw as the abuse of authority. In Nairobi Lucy went to the premises of Nation Media Group and spent five hours complaining about “unfair” reports. The nature of her complaints exploded beyond her control when she was televised assaulting a KTN cameraman ,Clifford Derrick Otieno, who was filming the First Lady as she was shouting to journalists in the newsroom. She was clearly shown slapping Clifford.
Abuse of Authority
On May 6th RSF expressed shock over the abuse of authority displayed by the wives of Presidents Mwai Kibaki of Kenya and Olusegul Obasanjo of Nigeria in assailing and imprisoning journalists in separate incidents on May 2, 2005, in response to critical press reports. In a statement the French organization said: “We are stunned that the Presidents’ wives went so far just to seek personal revenge. We therefore call on Lucy Kibaki to apologize to the cameraman she hit and we call on Stella Obasanjo to have the Midwest Herald’s publisher released from prison immediately as such meddling harms the image of the respective countries.”
Unfortunately for both Kenya and Nigeria, statements issued by the international organizations are circulated all over the world and we are made a laughing stalk as a people with little respect for free speech when we pretend to be democracies. On May 20 this year RSF issued yet another global statement and voiced concern over what it called “current state of relations” between the Kenyan media and President Mwai Kibaki’s administration, which had deteriorated sharply over the past two weeks in a series of public clashes that were all the more shocking as Kenya was regarded as a country that had enjoyed relative stability until then. The French said President Kibaki should realise this battle with the privately owned media would only lead to an even worse situation. The mounting threats, harassments and attack against the press were not only very bad examples for Kenyan society, but also the sign of something beginning to go awry with the country’s democracy.
One of the most abominably notorious characteristics of despotic regimes out to muzzle the media is to make use of the courts as battlegrounds and the laws of libel – both defamatory and criminal – as lethal weapons against outspoken journalists. The awards of very high damages to plaintiffs complaining of exposure to hatred, ridicule and contempt by the media have made many observers of Kenyan Fourth Estate’s relationship with the Third Branch wonder whether or not the Bench here is not used as a political weapon. One such award took place in May this year when a Mombasa High Court ordered the Nation Media Group to pay ten million shillings in damages for allegedly libeling Justice David Musinga in a 1999 when Musinga was a lawyer.
International critics of mistreatment of journalists in Kenya were quick to unearth this phenomenon as they observed that Press offences in Kenya were no longer punishable by imprisonment but through disproportionate sums in fines and damages ordered by judges and magistrates. Sometimes the Attorney General stepped in to disrupt the flow of justice whenever journalists were the victims. The most recent example of this was when Wako blocked legal action against Lucy Kibaki as Clifford Derrick Otieno wanted the assistance of the Judiciary to make sure that justice was not only done but it was manifestly seen to be done following the Nation House May 2nd disastrous behaviour by the First Lady. Though unknown to most Kenyans, Wako’s action was globally condemned by no less an organization than the International Press Institute (IPI) which expressed its concern about the decision to discontinue criminal legal proceedings against Lucy Kibaki. Clifford Derrick Otieno had filed the criminal proceedings against Lucy on May 16th this year.
According to the IPI, the global network of editors, leading journalists and media executives in over 120 countries, the exercise of nolle prosequi by Amos Wako should not have been used as a political tool to frustrate the legislative rights of Kenyan citizens to pursue legal proceedings against politically powerful people who habitually disregard the law. The IPI saw the move by Wako as political in nature and intended for the sole purpose avoiding undue embarrassment to the political leadership of Kenya. It added that the fairness of any legal system rests on the belief that the rule of law is applied without fear of favour to any individual, group or institutions. The international organization told the world that the law had been applied in Kenya in an arbitrary fashion and revealed what it called twin-track legal system that assists those in power, and their partners, while denying rights to ordinary Kenyan citizens such as Otieno.
International Watchdogs
It is very easy to criticize international watchdogs and whistleblowers commenting negatively against Kenyan anti media heavy handedness and hostility to journalists as unfairly imposing but it must be remembered when good things happen in our courts international organizations also notice. When, for example, the Sunday Standard Managing Editor, David Makali was acquitted of criminal charges on April 4th this year the Committee to Protect Journalists (CPJ) wrote from New York to tell the world about the case which was pending since 2003 when the paper published leaked excerpts of confessions made by suspects in the Odhiambo Mbai murder case. Acquitting Makali Nairobi Chief Magistrate Aggrey Muchelule said to convict Makali would contravene guaranteed access to official information.
“We welcome this verdict and interpretation it provides in favour of Press freedom,” said Ann Cooper, Executive Director of CPJ. “We hope this verdict will help to ensure that all Kenyan journalists are free to report on matters of public interest without fear of reprisal.” Soon after those words of caution from a respected international organization were circulated all over the world, the court imposed a heavy damage of three million shillings against Royal Media Service to Foreign Affairs Minister Ali Makwere. The suit arose from a story published in the Press alleging that a Cabinet Minister, an Assistant Minister and an MP had been filmed by police along Nairobi’s Koinange Street picking up prostitutes. The defendant attempted to bring a witness, Miss Immaculate Mwende, obviously trying to use the defence of justification, but Makwere’s lawyer successfully blocked her from testifying.
According to a respected media law scholar, G.F.L. Bridgman, justification is the most complete and final defence that can be made to libel (by proving) that the words complained of were true in substance and fact. He argues that this defence to an action will be seen when it is appreciated that an action for defamation is an action for injury to reputation and a man cannot recover damages for injury to a reputation, which he either does not, or ought not to possess. To plead justification successfully, he says, the whole of the libel must be shown to be substantially true. But Justice Phillip Ransley agreed with the plaintiff’s lawyer and rejected Mwende’s evidence even before it was presented to the court. Instead he seemed to agree with Makwere’s implied claim to have evidence of the depth of degradation to which the Kenya media would stoop to throw mud at Kibaki’s administration by alleging that he had made a nocturnal visit to Nairobi’s red light district along Koinange Street.
Both journalism and legal scholars have always regarded libel laws as possible political weapons to muzzle free speech. According to Donald M. Gillmor, Professor of Media Ethics and Law at the University of Minnesota, libel litigation has become a devastatingly effective weapon for silencing those who dare to challenge the morality of power, privilege, and prestige. He says plaintiff and defendant battle in a confined judicial arena (where) public discourse is circumvented. He argues that “libel law is a powerful weapon for shutting up those with whom you disagree.” Recent awards of huge sums of money, including a 14 million damage given to Joseph Kamotho, against the Nation Media Group, inevitably make one wonder whether there is some collision between the Judiciary and the media. The awards have provoked so much soul searching and debate in both media and academic circles making the two groups have reservations about whether libel cases in Kenya are conducted in a fair way.
Frequent Libel cases
The toughest question to answer is whether frequent libel cases and high damage awards are healthy for freedom of expression. Whatever court pronouncements may be on this issue the fact remains that the Kenyan society will always need both a probing and vigorous Forth Estate to achieve real transparent and accountable democratic uprightness needed in a free society. Indeed even court proceedings themselves require an enterprising media to ensure that justice is not only done but it is manifestly seen to be done.
Yet, when all is said and done, both the Fourth Estate and the Third Branch need one another. In the words of Judge Judith S. Kaye, the Chief Judge of the State of New York: “We live in a society awash in media accounts of law, feeding a seemingly insatiable public thirst for legal subjects. Pick up a newspaper , flick on TV, and chances are you will find depictions – real of fictional – of the latest trial of the century, analyses and current trends in crime or punishment, reports on the doings of high-profile attorneys and plethora of pundits commenting all the above.” Rather than imposing heavy damages against the media, Kenyan judges, should try to implement Judge Judith’s call to both the Bench and the Fourth Estate. To begin with she suggest that there should be a more balanced coverage of courts which would recognize the limitations of judicial speech and seek out the views of those with less access to media coverage – representatives of the local bar , for example , or academics – when legal decisions are criticized.
She says this may require legwork, but given the enormous power of the media to shape public opinion, and the tremendous role that the public confidence plays in the effectiveness of the judicial branch the extra effort is surely warranted.
From colonial days the various Executives in Kenya have had their quarrels with the independent Kenyan Press. The free Press, likewise, have not been particularly happy with the performance of those in political power. The fundamental misunderstandings have always been based on two divergent outlooks: The politicians in power have always wanted to manipulate the Fourth Estate to get their best image across to the wananchi and yet the journalists have always wondered how they could fulfill their obligation to publish the truth about information and news without proper accessibility to vital information without governmental hindrances.
It is probably with this in mind that President Mwai Kibaki recently announced at the International Press Institute conference in Nairobi that his Government intended to introduce a Freedom Of Information (FOI) Act. No sooner did the President make that announcement than Raphael Tuju, the Minister for Information, published a FOI Act of 2005. The draft Act has both good and bad news for journalists. The good news is to be found in Section 45 of the Act which proposes to repeal the draconian Official Secrets Act CAP 187. Among the bad news that is brought about by the Tuju Act is to be found in Section 7(2) which says a person is not entitled to obtain access under this section to a document or a part of document that became a document of agency before the date of commencement of this part. In a layman’s language it means journalists will not be able to get accessibility to important information of past dirty activities of the powerful such as the origin of Goldenberg scandal and massive land grabbing under Jomo Kenyatta. Of what use then, one is tempted to ask, is Tuju’s FOI Act to this country?
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