Githongo ruling: Activists blast judiciary

They say the judgement is a statement to the media and whistle-blowers to lie low

In Summary

• The activists argue that the case was mishandled in a manner that appeared to favor former Internal security minister Chris Murungaru.

• They said Githongo will appeal the judgement.

John Githongo
UNDETERRED: John Githongo
Image: FILE

Civil society groups on Friday criticised the Judiciary for what they termed as unfair handling of the defamation suit against anti-corruption Czar John Githongo.

 Speaking during a forum convened by Kenya Human Rights Commission at a Nairobi hotel yesterday, the activists complained the court did not give Githongo a fair chance to defend himself.

Githongo was sued in 2004 by Chris Murungaru, the internal security minister during President Kibaki's first term, for linking him to Anglo-leasing contracts said to be dubious. He lost the case and was ordered to pay Murungaru Sh27 million. He has vowed to appeal the ruling.

The rights activists said they will sustain a public pressure to "ensure the unjust and retrogressive ruling" is set aside.

KHRC executive director George Kegoro said the proceedings of the case were shrouded in controversies, which were not addressed by the presiding judge.

For example, he said, when opposition chief Raila Odinga sought to testify in favour of Githongo late last year, the presiding judge declined and neither did he mention about it in his judgement.

"When Raila was to testify, he submitted a letter requesting another date, explaining that he was out of the country on official duties as the AU special envoy. The judge disallowed the adjournment motion filed by the defence," he said, adding that "this left John with only one witness."

"The final judgment also cited that Githongo only called one witness, compared to Murungaru's four, meaning that failure to have his second witness testify disadvantaged him," he added.

Kegoro said another happening that controverted the manner in which the case was handled was the unclear recusal of David Onyancha, the initial judge the heard the case.

Onyancha recused himself from the case in March 2015. He has since retired.


"Justice Onyancha never conveyed this news to the parties in the case but rather through a written note read by another judge, explaining that one of the parties attempted to compromise him," he alleged.

"This case only had two parties, John and the former minister and i'm sure the party that sought to compromise the judge was not Githongo."

"We may need to be told how far the attempted compromise went. Did it end there?"

Kegoro also said if Murungaru was genuine in his defamation claims, he should have sued the newspapers that published the information because Githongo's allegations were contained in an official advisory to President Kibaki.

"This litigation dragged the wrong people to court and left the right ones. It is the newspapers that published and publicised the story, its them who should have been sued, not Githongo who was doing his job," he said.

Constitutional lawyer Wachira Maina said it was ridiculous how the court allowed allowed Murungaru's argument that Githongo's publication linking him to the Anglo-leasing scandal caused him to lose his Kieni seat in subsequent elections. "It creates the impression that Murungaru had a right to be elected," he said.

Former Chief Justice Willy Mutunga said there was a spirited attempt to undermine the place of constitutionalism that allows freedom of expression and access to information.

"A lot of decisions coming from courts do not pay due regard to the constitution," he said.

Transparency International country director Samwel Kimeu said the judgement had the import of deterring whistle-blowing in the country.

"This judgement is telling our public officers to lie low and say nothing unless they are able to prove it, yet proving a case is a role of another state agency," he said.

"How come when it comes to security issues such as terrorism, we are encouraged to report any matter that appears suspicious, yet in the fight against corruption-which is another crime anyway, you are slapped with unjust astronomical fines to silence you?"

Kimeu said that whistle-blowers do not necessarily have to prove their claims but have state agencies paid to investigate to probe.

Jill Ghai from Katiba Institute said there was need to file a public interest litigation suit to challenge the defamation law basing it on article 33 of the constitution that guarantees free access of information.