MP defamation ruling a threat to freedom of speech
Kenyan courts have, in most cases, played a critical role in ensuring that human rights are protected, and that a conducive environment exists for those who talk truth to power.
However, on July 28, Justice Roselyne Aburili, sitting at Siaya High Court, made a judgment that threatens the rights of Kenyans, particularly with regard to Article 33 on the right to freedom of expression.
The judgement jeopardises the ability of Kenyans to ensure State officers uphold national values and principles of governance, as well as the integrity standards as stipulated under Article 10 and Chapter Six of the Constitution respectively.
The matter in question is a defamation suit filed by Gem MP Elisha Odhiambo against Booker Ngesa, the national vice-chairperson of the Communist Party of Kenya, after the latter alleged theft of NG-CDF funds.
At the centre of the case is an administration block in Masinde Primary School, which Odhiambo says was built by the Gem Constituency CDF, while Booker claims he built it at the cost of Sh1.5 million in 2014.
The ensuing political spat ended up at the Siaya High Court before Justice Aburili, where the MP accused Booker of defaming him after he allegedly claimed that he had overseen the stealing of public funds.
Booker’s defence was that his statements were true and justified. The court ruled in favour of the MP, awarding him Sh6 million in damages and permanently stopping Booker from making any pronouncements concerning Masinde Primary School.
Whereas defamation is punishable by law, the courts tend to exercise caution when dealing with defamation cases to ensure that citizens can still speak freely without fear of persecution, especially when it comes to issues of corruption and good governance.
Unfortunately, this underwhelming judgement has departed from this established practice since several procedural and substantive question marks are evident.
For example, for defamation to exist, the defendant must have shared the defamatory statement with a third party.
On the contrary, all evidence presented in court on this matter showed that it was the employees and associates of Odhiambo who shared Booker’s complaint letter (that was privately addressed to the MP) with the public, as they threatened to take legal action against him.
The MP claimed that Booker had defamed him on Ramogi FM and he promised to provide an audio and transcripts to support his claim. Unfortunately, he did not present this evidence in court, and the court merely took his word for it.
Perhaps the worst substantive issue was the fact that the judge allowed hearsay evidence even with objections from Counsel Gitobu Imanyara, who represented Booker in the matter.
This was done with respect to two witnesses who could easily have been included as Plaintiff’s witnesses (the NG-CDF fund manager and the county clerk of works) or in the alternative could easily be summoned in court as they both were public officials.
To make matters worse, two of the MP’s witnesses contradicted themselves in their pleadings and in their oral testimony in court, an issue that was raised by Imanyara, but the judge corrected the contradiction as she wrote the judgement, rather than seeking clarification during the hearing.
If Booker does not appeal this decision, other State officials may in the future rely on this judgment with an aim of silencing any demands for accountability from the public.