Why Sh26m award is likely to attract controversy

The High Court has awarded Court of Appeal Judge, Alnashir Visram, Sh26 million against The Standard Group as damages for defamation, an award which competes well with the Sh30 million judgment that Justice Visram himself gave in 1999 to former minister Nicholas Biwott.

The award to Justice Visram, who was interviewed for Chief Justice last week, arises out of a headline story the newspaper carried in 2011 during the massive outrage that followed President Mwai Kibaki’s unilateral nomination of Justice Visram for the country’s next Chief Justice after the retirement of Evan Gicheru.

The Standard ran a story headlined “Unfit for Justice”, which relied on information from the Law Society of Kenya claiming that in order to avoid liability for the defalcation of a large sum of money belonging to a client, Justice Visram, then in private practice, had sworn a false declaration while renewing his annual practising certificate, and, concluding that he had thus perjured himself and was therefore unfit for appointment.

At the hearing, Justice Visram demonstrated that the allegations about his status in the law firm in question were, in fact, false and that contrary to assertions, he had resigned his partnership before the money was stolen, and was not culpable for its loss.

During the trial, The Standard badly mismanaged its case, calling just one witness in its defence. Still, there is much to be said about how weak Justice Visram’s claim was, based on only the evidence of one witness and his own evidence.

The witness, an advocate, testified that he used to regard Justice Visram as his mentor but had then shunned the judge after the publication in question appeared. The evidence of this one witness was, according to the High Court, proof that the publication harmed Justice Visram’s reputation.

PROFILE OF PIETY

In his own testimony, Justice Visram set up a profile of piety, made up of a long career in law in Kenya, Canada, Pakistan and Uganda, and claimed that this had been injured irreparably and that the publication had affected adversely his chances of becoming Chief Justice in 2011.

The High Court made a circuitous finding on this claim, speculating that while there was no proof that the publication had adversely affected his chances of becoming Chief Justice, the difficult time he faced during his interview may have arisen from the publication.

Away from the little bubble of Justice Visram’s court case, in 2011, the public immediately understood that President Kibaki had put in motion a process to impose a Chief Justice on the country, an enterprise which only failed because of the concerted resistance it attracted.

In resisting the appointment, the opponents logically attacked both the process and the suitability of Justice Visram as the choice of Chief Justice.

Other than the allegations emanating from the Law Society, critics also attacked Justice Visram’s suitability on other grounds, including that he was a member of a high-handed bench that improperly turned away a litigant who had dared to criticise the Judiciary, and also the Sh30 million award to Biwott.

The contrived nature of these High Court proceedings created a situation where these issues, which were less palatable to Justice Visram’s self-regard, and which were nevertheless relevant in an overall assessment of any claim of reputational injury, had no play.

Secondly, Justice Visram’s own role in the nomination fiasco was overlooked. Presumably, the judge had consented to the ill-fated nomination before the president announced it. As the nomination drew resistance, Justice Visram maintained a studious silence. If the president had succeeded in railroading his appointment, Justice Visram would happily have accepted the job, and here lies the problem.

QUINTESSENTIAL OPPORTUNIST

As a quintessential opportunist, Justice Visram took no responsibility for anything, sitting and waiting for the situation to resolve. In that whole situation, was the judge a player or a victim? If a victim, was he a victim of his political backers or of the public that dared to oppose his nomination?

A curious aspect of the judgment is that the court gave no consideration to the possibility of information from the Law Society of Kenya, on which the newspaper reportage was based, fitting into the defence of qualified privilege. The defence of qualified privilege permits persons in positions of authority or trust to make statements or reports that would otherwise be considered defamatory.

The Law Society is the statutory custodian of the affairs of the legal profession in the country, and if, in good faith, the newspaper reported information from the Society, it incurred no liability even if the information turned out to be false, as happened in this case. Curiously, the judge did not sue the Society, the author of the offending information, selecting the newspaper as a soft target.

While it is to be hoped that The Standard will appeal this award, Justice Visram, whose judgment in the Biwott case is the poster child on retribution against free speech, now finds himself the beneficiary of an award that will attract some controversy of its own.

In 2011, Justice Visram was running with the bullies who wanted to make him Chief Justice through a process the public resisted. The courts have now found that those who resisted those schemes were wrong, and has given him a judgment for Sh26 million for it.

The problem with Kenya’s justice system is that it allows the powerful to play victim, and to instrumentalise legal procedures to protect themselves. Justice Visram who, as a judge, allowed a powerful minister this privilege, seems to have learnt from the best, and has claimed for himself the same privilege.

gkegoro\@gmail.com