LEGAL DISCUSSION

Fighting the King

The Constitution affords every Kenyan the right to freedom of expression. However, this right is not absolute

In Summary

• King Kaka kicked up a storm with his 'Wajinga Nyinyi' song

• A politician threatened to sue him for defamation, begging the question of what libel and defamation are

King Kaka
King Kaka
Image: Courtesy

A recent song by Kennedy Ombima, famously known as King Kaka, went viral for its no-holds-barred commentary on the political scene in Kenya. The same has now opened a Pandora’s Box as many artists have gone ahead to pour out their yelps by releasing similar pieces of art to highlight what they think the government has and is doing wrong.

In the song, aptly titled 'Wajinga Nyinyi,' King Kaka harshly speaks on several ills committed by the political class, which mostly goes unpunished and eventually forgotten. He further blames every Kenyan who lines up to elect or re-elect corrupt politicians and ends up suffering as a result.

As expected, the song caused quite a stir and received split opinions among Kenyans. While some praised its fearless tone for speaking out against corrupt politicians, some of whom he called out by name, others were not amused by his lyrics, which they deemed bashful and inaccurate, more specifically, defamatory. Two well-known female politicians were quick to call out King Kaka for this and even threatened to sue for defamation if he does not apologise and pull down the song from the Internet.

The question, however, is does the content of King Kaka’s song qualify to be defamatory? How about all the other songs released thereafter?

 

Defamation

Defamation is a false statement presented as a fact that causes injury or damage to the character of an individual. It occurs when something untrue and damaging is presented as a fact to someone else. Making the statement only to the individual does not amount to defamation because it does not damage that individual’s character in anyone else’s eyes.

Defamation is usually made up of two categories: Libel, which is an untrue defamatory statement made in writing, and slander, an untrue defamatory statement that is spoken orally. Statements made on the Internet and social media usually fall under libel since they count as “written statements”. Equally, videos uploaded on YouTube also fall under libel since videos are fixed in a permanent and tangible medium, meaning they are capable of existing online forever. Written content and videos shared on WhatsApp groups would also fall under libellous statements due to their written nature.

In Kenya, the Constitution under Article 33 affords every Kenyan the right to freedom of expression. However, this right is not absolute as Article 33 (3) provides that the freedom of expression requires every person to respect the rights and reputation of others. The law will try to find a balance between the freedom of expression and the protection of an individual’s character as well as the interest of the public. Defamation usually results when there is an imbalance in this equation. 

The Law and Defamation

For the alleged defamed parties to be successful in proving a defamation claim, they would have to prove several things. The individual/s would have to prove that the statements made in the song were false. Further, being that the alleged defamed parties are well known public figures, they must prove that the defamatory statements were published with "actual malice" and "reckless disregard" for the truth. The allegedly defamed parties would also have to prove that the statements were published or communicated to a third party, which means someone else other than King Kaka or the defamed parties-in this case, since the song was shared publicly on YouTube, third party access was limitless.

Another element the alleged parties would need to prove is that the actions of King Kaka amounted to at least negligence on his part which would prove that he was at fault. In this regard, they would merely have to prove that a reasonable and honest person in King Kaka’s position knew or ought to have known that his/her actions would have a defamatory effect on the reputation and character of the alleged defamed parties.

Finally, the defamed parties would have to prove that they have suffered some form of injury or damage as a result of the alleged defamation. Legally, they can ascertain damages suffered by alleging any of the following; embarrassment and humiliation, ostracization from their community, mental anguish, anxiety, and loss of sleep, strain and severance of personal relationships (family, friends, loved ones) or even increased media attention and scrutiny.

On the other hand, King Kaka in his defence before a court of law might argue that his statements are simply true. In defamation claims, truth is an absolute defence. If he can prove that his statements are true, then the defamation claim would not stand. It is public knowledge that some of the alleged parties mentioned in his song have faced corruption allegations as well as being mentioned in several reports done by NGO’s and research firms such as Ipsos as being corrupt or perceived as corrupt by the general public. He would thus have to prove that the statements in his song are just truthful reiterations of these facts.

Equally, Mr Ombima can argue that his statements were made in pursuit of public interest. This would mean that his statements were made regarding a matter which is of public interest, and that he reasonably believed that sharing his statements with the public was necessary as a way of informing them against the ills of corruption and corrupt politicians. As an artist, he can argue that he indeed has a social obligation to impart certain vital information to the society.

Additionally, King Kaka in his defence can argue that the song was purely just him exercising his constitutional right of expression and sharing his opinion and that his statements were made in utmost good faith. This, however, would not be an absolute defence because the meaning of his statements will be based on the reasonable understanding of the recipients of his statements.

How the defamatory case against the King would have been decided in a court of law will remain a mystery as the defamation charges against him were dropped.

However, the alleged defamed parties may still find recourse through other avenues, specifically, through Google. To remove the alleged defamatory video from YouTube, the parties would have to submit a complaint with Google via their ‘Submit a Complaint’ link, by including, their contact information and capacity as complainants, the video URL, the exact statements alleged to be defamatory, and several legal affirmations of truth. Google would then investigate the issue and if they find any defamatory content, would then respond by removing the defamatory content off their platforms or blocking people from having access to it.

Article by Allan Tuli and Elizabeth Mbugua