On October 22, 2020, Justice Roselyne Aburili ruled to block civil society demonstrations against alleged corruption pending the determination and conclusion of a case in which a defendant fears their name could be maligned.
When the ruling was made, it was both confounding and interesting. After careful thought, it is my humble conclusion that the judge erred. The ruling was made in a defamation case pitting Gem MP Elisha Odhiambo as the plaintiff, against Booker Ngesa, the vice chairperson of the Communist Party of Kenya, as the defendant.
At the centre of the case is an administration block at Masinde Primary School, which Odhiambo claims was built by NG-CDF, while Ngesa contests that he used his personal resources to build the block.
At the High Court in Siaya, before Justice Aburili, Odhiambo accused Ngesa of defaming him. Odhiambo also accused Ngesa of planning to organise violent demonstrations [against him] and hence asked the court to issue injunctive orders stopping Ngesa from organising any public protests, or making any statements, linked to the matter.
When it comes to the issuance of injunctive orders in defamation cases involving state officials, courts usually exercise a balance between protecting the whistleblower (and public interest) on one hand and protecting the reputation of the state officials in question on the other.
If there exists a possibility of truth on the side of the whistleblower, the courts will hesitate to issue such orders until the matter is fully heard. For instance, this is what happened in the case of Micah Cheserem vs Immediate Media Services and four others.
Justice David Maraga reaffirmed this understanding of the law in the Gilgil Hills Academy Ltd vs The Standard Ltd case. The two cases are the locus classicus in defamation suits involving public interest issues.
This approach to the law puts a higher value on exposing corruption and protecting taxpayers’ money, in relation to the reputation of state officials.
In the Elisha vs Booker case, it is my opinion that the court ignored this cardinal principle and gave a blind eye to the evidence adduced by the defendant in court. It should be noted that Ngesa and his team already had the green light from the police to hold demonstrations having satisfied that they would be peaceful.
Contrary to Article 24 of the Constitution on limitation of rights, the court did not consider or explain the importance of the limitation, the relationship between the limitation (stopping the legal anti-corruption protests) and its purpose, and whether there were less restrictive means to achieve the purpose.
This ruling will set precedence where corrupt state officials can rely on it to deny citizens their constitutional right to assemble and demonstrate, even when the citizens have met all the legal requirements around peaceful assembly. In essence, the decision tends to overthrow Article 37 on demonstrations through the back door.
Around the world, all thriving democracies put the rights of whistleblowers and the public’s interest ahead of possible defamation.
It will be important that members of civil society appeal this decision in the interest of the public lest it leads us back to the dark days when courts were used to block anti-corruption activities in government or within its institutions.
Journalist, communications specialist, and human rights activist in Western and Nyanza
