• Whistleblowers and the media should not be harassed by the rich and powerful.
• The laws have facilitated the emergence of 'strategic litigations' against the media with the aim of making fair comment attract hefty punishment.
The country's libel and defamation laws should be overhauled to make them compliant with the Constitution, a public forum was told yesterday.
The laws make it easy for the powerful and the privileged to stifle criticism and divergent opinion. They also limit space for freedom of fair comment, executive director of Kenya Human Rights Commission George Kegoro told civil society organisations at Alliance Francaise in Nairobi.
The defamation laws have facilitated the emergence of strategic litigations against public participation and the media with the aim of making fair comment attract hefty punishment, Kegoro said, citing the successful defamation suit by former Cabinet minister Chris Murungaru against former anti-corruption czar John Githongo.
Githongo was fined Sh27 million for linking the former powerful minister with the 2004 Anglo-Leasing scandal.
He has since filed a notice of appeal asserting that "he'd rather go to jail than pay the money".
Bernard Muchere, the former Ministry of Health internal auditor who blew the whistle on Afya House scandal, said the extensive coverage of the scandal made his family live in fear.
He recounted that while his retirement was regular because he had attained legal age, he experience subtle threats and intimidation. He said whistle-blowers needed to be put in special protection schemes.
"On the day of my clearing, as I wrote hand-over notes, my supervisor came to my office with an armed AP officer alongside a technician to change the locks on my door in a bid to intimidate and subtly threaten me," he said. "I know I was not the main target. The subliminal messaging was to the colleagues remaining behind never to dare write an uncomfortable report."
Head of legal affairs at Nation Media Group Sekou Owino told the forum that the set of laws not only target those who make the alleged defaming comments, but also the media outlets and journalists who report them.
"Reporters who work on stories deemed defamatory alongside the media house and the newspaper distributors and vendors are also roped in the suits because the law's perspective is that they are aiding in the publication and distribution of the alleged impugned material," Owino said.
From his experience, litigants and complainants in defamation cases are "invariably the same people and they have the drive of making hefty monies out of it."
Owino said the legal regime of defamation in the country was inherited from colonialists and it operates with the maxim that everybody always has a good reputation.
"Unlike other cases, the burden of proof in defamation is not on the person alleging, but on the accused. The accused is forced to prove that the person claiming to have been defamed does not have any good reputation to be tarnished," he said.