Media gagging in high-profile cases

To prevent defamation, you need correct reporting, not none at all

In Summary

• Coverage of court cases involving political bigwigs is often thwarted by gag orders

• Applicants get the orders easily, denying the public, media chance to argue their cases

Journalist stranded outside the anti-corruption court building on Wednesday, September 9, 2020
Journalist stranded outside the anti-corruption court building on Wednesday, September 9, 2020

For a soap opera to be juicy, the stories must be ridiculously melodramatic and often, embarrassingly predictable, but just scandalous or shocking enough to become addictive.

Senate Speaker Kenneth Lusaka’s ongoing court case ticks every box in the category. The protagonist is a “mpango wa kando” suing a married politician for proof of paternity and payment to the tune of Sh25 million for the upkeep of their unborn baby.

Depending on which side of the dramatic divide you are, it could be a case of a gold digger mining a famous politician, or yet another powerful official taking advantage of a commoner. Whatever the case, this is one soap that was dead on arrival because the court has issued a gag order preventing the media from “accessing, publishing, airing, narrating or commenting [on] the case in any newspaper, journal, weekly magazine and TV or radio show.” What a bummer!

Besides denying Kenyans the joy of sensational entertainment, the gag order raises serious questions about the freedom of the press, especially when it comes to coverage of court cases involving political bigwigs. A while back, Embakasi East MP Babu Owino had a magistrate bar the DPP, the DCI and the media from discussing the merits of the attempted murder case by DJ Evolve against him. Earlier, former Nairobi Governor Evans Kidero sued Nation Media Group, preventing it from reporting on the questions arising from his time as the chief executive of Mumias Sugar Company.

The main argument for such orders is preventing defamation: damaging the good reputation of someone either by slander (spoken) or libel (printed). A huge problem here is how easily the applicants get the orders, thereby denying the public and the media the opportunity to argue their cases. A blanket ban on reporting goes against the spirit of freedom of expression. Defamation laws are well defined in the Constitution, and the issue should be “correct” reporting, not none at all.

Politicians are especially fond of this tool of injustice, which seems to be the first order they seek as soon as a case is instigated against them. At such times, they are quick to remind the public that their privacy should be respected, yet they are not shy to parade in public their children and spouses in the hunt for sympathetic votes. I’m a family man, so they mean to say, you can trust me with yours. But when the same statesman is caught with a “mpango”, suddenly he invokes the need for privacy.

“Once elected, they’re no longer private citizens,” Lucy Njambi tells the Star. “After all, they pull most of their ‘private’ stunts using our hard-earned tax money.”

The public has the right to learn of their representative’s extra-official activities. This information is not mere entertainment to its consumers, it is an important instrument of democracy. It is the ammo that the electorate carries to the next election.

To his credit, Speaker Lusaka has adulterated (if you can forgive the pun) the soap by not denying the paternity of the child and wishing to have the case settled out of court, and it is the plaintiff’s lawyer who sought the gag order. However, in no way does this justify a complete ban on the discussion of an issue involving an elected official at a time when Kenyans desperately need something to whet their sumptuous pub and after-church debates.

Linda Kimorgo is not one of those Kenyans. “They did it in private,” she says, “they have the right to discuss it in private.”

Sorry, Kenyans. You will have to wait for the next instalment.

This story first appeared on Star Sasa, accessible on Sundays for Sh10 on https://www.mgazeti.com/

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