Last week, the High Court in Homa Bay rendered its judgement in Civil Case No.3 of 2020—the case was a defamation suit filed by a local contractor against the Star Newspaper.
In its judgement, the court held in favour of the complainant paraphrased as follows;
“The first plaintiff (complainant) is a businessman...the publication (the Star) imputed criminality on the part of the plaintiff and this must have harmed his public standing. After considering the authorities cited by both parties I award Ksh.10 million to the plaintiff and his company in general damages, Kshs.1 million exemplary damages to each plaintiff against the defendants jointly and severally, and a permanent injunction to restrain the defendants, servants and/or agents from publishing or continuing to publish articles defamatory to the plaintiff now and in the future. Costs of the suit will be borne by the defendants.”
It is important to point out that journalists and media across the world have been sued in defamation for many years and, so long as media remains part of our democracy, there will always be cases of people aggrieved by what journalists and media do, and courts will continue to entertain and determine defamation suits such as the recent one against the Star.
However, what is of concern to journalists and the media fraternity today is that the veracity of orders issued by courts and the quantum of damages awarded in defamation cases are calculated to bring the media and journalists to their knees.
For example, in the recent case against the Star, the court issued a permanent order restraining the media house from publishing any article defamatory to the complainant now and in future. Likewise, the Speaker of the Senate, Ken Lusaka, recently obtained similar orders from the Children’s Court restraining all media houses from reporting on the case filed against him by a woman claiming neglect and child support.
The question is, when courts issue such sweeping and pre-emptive orders clothed in overly broad terms such as “permanent injunction to restrain the defendants from publishing or continuing to publish articles defamatory to the plaintiff now and in the future”, how do they expect the media to obey them?
Indeed, given the function of the media in society as recognized under Article 34 of the Constitution, such pre-emptive orders are incapable of obedience because, in the absence of a complaint or preordained scale of measure, journalists have no way of knowing in advance that, if published, such and such information would be defamatory to such and such a person!
Unlike the criminal court, the presiding officer of the civil court is required, as a matter of good practice and wisdom, to reflect on the practicability of the orders sort by the plaintiff before issuing them—it is, therefore, foolhardy for a court to issue orders which the defendant, because of the nature of his circumstances, cannot obey.
In this regard, there is urgent need for our courts to recalibrate their jurisprudence with regard to the sweeping and pre-emptive injunctions in defamation being churned out because such injunctions are a chilling effect on the freedom of expression and freedom of media.
Indeed, since journalists have no way of knowing in advance what would be defamatory before going to press with certain information, the only way they could obey such orders is to engage in self-censorship, and which is unacceptable in the 2010 constitutional era.
Secondly, there is the worrying issue about the quantum of damages awarded against the media in defamation suits. In the case under comment against the Star, the court awarded the complainant and his company a total of Sh22 million in damages. Now, this amount is too punitive for any media house in Kenya, leave alone the Star.
The media industry, especially in this era of Covid, is barely surviving because the business aspect of it has virtually collapsed. Therefore, an award of Sh22 million against a struggling business is just the straw that broke the camel’s back.
Thirdly, there is concern that despite the progressive and transformative character of the 2010 Constitution, courts in Kenya seem to be deliberately avoiding progressive legal authorities and relying on retrogressive authorities in order to find against the media in defamation suits.
Despite Article 259 providing that the constitution, and other laws for that matter, should be interpreted in a manner that promotes its purposes, values and principles, and considering the doctrine of interpretation that the law is always speaking, it is disturbing that Kenyan courts have chosen to remain static by applying retrogressive authorities in order to find the media culpable in defamation cases.
For example, one wonders why Kenyan courts in defamation cases have avoided relying on the media-friendly authority in the 1964 case of New York Times vs. Sullivan in which the Supreme Court of the United States pointed out, and in fact acknowledged, that if a newspaper had to check the accuracy of every criticism or adverse information published in the public interest, a free press would be severely limited.
The court, in a unanimous decision, then proceeded to rule in favour of the media, noting that, in order to prove libel against a newspaper in a matter of public interest, the plaintiff must show that the newspaper acted “with ‘actual malice’—that is, with the knowledge that the offending information was false, or with reckless disregard” for truth.
The Court, therefore, asserted America’s profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Hence, the court reasoned, free and open debate about the conduct of public officials or persons dealing with public institutions was more important than occasional, honest factual errors that might hurt or damage reputations.
Why Kenyan courts score poorly against such media-friendly jurisprudence is a wonder!
Legal and media consultant. [email protected]
