As we observe the defamation
proceedings between Deputy President William Ruto and Activist Boniface Mwangi,
words and phrases keep flying around. Without going into the merits of the case
– the matter being under judicial consideration and therefore prohibited from
public discussion, the public ought to be enlightened of some of these words
and terminologies.
I will rely on a simple example to
explain. Kamau files papers in court accusing Wafula of uttering or writing
certain words causing damage to his reputation. This is what you would call a
claim. Wafula while exercising his right of reply has two options; he can file
papers denying the accusation even denying ever uttering or writing those words
– this would be called a defence, or Wafula may opt to file a claim within
Kamau’s claim with the intention of defending himself and offsetting Kamau’s
claim even surpassing the enormity of Kamau’s claim. In this case, not only
does Wafula deny what he is accused of, he goes on to show why he either feels
aggrieved and/or that that Kamau never had a reputation worthy of protection.
Before the case goes to trial, the
conduct of civil cases dictates that there is exchange of documents (evidence)
to be relied on - a process known as discovery. If for any reason, either of
the parties feels or is of the opinion that the other is withholding
information critical to the proper adjudication of this dispute, they are at
liberty to seek the court’s intervention and an order by the Court directing
the issuance of this information must be obeyed before commencement of trial.
In this legal controversy, Kamau must
show that Wafula made a statement, the statement was published, the statement
caused an injury, the statement was false and the statement is not protected by
privilege – one made by a witness giving testimony in a court of law.
This legal controversy of course
touches on the delicate balance between one person’s right to freedom of speech
and another’s right to protect their good name. Discourse is essential to a
free society and the more open and honest the discourse, the better for
society.
If Kamau is a public official or a
celebrity, he is subject to scrutiny and criticism – a higher priority is
placed on the members of the public being allowed to speak their minds about
elected officials and public figures. Kamau would therefore get lesser
protection from alleged defamatory statements and faces a higher burden when
attempting to win the suit against Wafula. Not only must Kamau show proof of
what we have discussed above, actual malice must also be proved. Did Wafula
have reckless disregard for whether or not what he uttered was true of not?
We continue to keenly follow the case
between DP Ruto and Activist Boniface Mwangi and hope that if for anything, it
will demystify, bring clarity and improve jurisprudence on Kenya’s defamation
laws vis-a-vis free speech protected
by the Constitution.
*** A version of this post was published in the 9th November, 2016 Edition of The Star Newspaper which you can access HERE ****
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