That journalists and the practice of journalism is under an increasing campaign of censorship and repression is not in doubt. There is an emerging pattern where journalists are either victims of physical violence in the course of their duties or subjects of prosecution where laws are selectively applied to ensure that journalists are found liable and in some instances guilty. What perhaps needs to be ascertained is why the latest attempt from the judiciary deserves special mention. High Court Judge Roselyne Aburuli recently awarded Justice Alnasir Visram Sh. 26 Million following a defamation suit he filed against The Standard arising from his unsuccessful application for the position of Chief Justice in 2011. Previously in June, he had ordered Nation Media Group to pay Lands and Environmental Court Judge Samuel Mukunya Sh. 20 million as damages in another case of defamation.
While the two cases present interesting reading on matters of libel, three fundamental issues concerning the boundaries of judicial authority come into play.
First, are judicial officers exempt from scrutiny and more so public vigilance? What constitutes their ‘person’ or rather dignity that needs to be safeguarded so much to the extent that calling into question their previous conduct becomes defamatory? Are judicial officers so sacred that anyone attempting to question their suitability for any promotion becomes a subject of a defamation suit? Are we saying that no one should critique the conduct of judicial officers except the magistrates and judges vetting board?
Second, are there any rules or procedures of best practice that guide judges when ruling on matters where their colleagues are litigants? Is the judge simply at liberty to determine the awards and in so doing such awards seem to be clearly biased and in favour just by the fact that a litigant is a colleague? Third when the Judge rules that in a defamation case, one does not have to establish material or financial loss, where has this same standard been applied before? Why should it surface only when the case is against a media house?
While legal experts will perhaps be in a good position to respond to these inquiries, they raise critical points for a broader national discourse where judicial conduct especially when it comes to the issue of fair comment and press freedom are to be balanced against individual rights to dignity.
It cannot be left to the judiciary to set standards and become a law unto themselves awarding high damages to their colleagues and seen to be tampering with the scales of justice to their own selfish ends. If this goes unchallenged, then the judiciary will simply become a cartel that looks after their own interests and not of the society especially on matters of public interest.
We need to come to a place where as a society we appreciate that press freedom is neither a privilege nor a favour. Journalism plays an important role as a watchdog- an early warning system that triggers our collective response when there are excesses be it from the executive, judiciary or legislature. But this does not just stop there. It extends to the larger public and even journalists themselves.
Locally we have the Press Complaints Commission within the Media Council of Kenya that deals with matters where any member of the public can lodge a complaint against conduct of a journalist or media house in the event that they feel aggrieved by any media coverage.
There is representation from the judiciary within the Press Complaints Commission and while it cannot be established that the two judges actually attempted to lodge their complaints here, it is equally interesting that Justice Aburuli perhaps never took interest to even consider any of the past rulings from the Media Council to inform her latest streak of verdicts. While she is under no obligation to do so, it therefore becomes suspect that she simply relied on her own set of facts to rule on a matter that could have otherwise benefited from a wide array of precedents.
The writer is a specialist on media law and ethics and his latest research investigates the changing nature of press censorship. He can be reached on , @edward_wanyonyi