Political rhetoric must stay within limits of law, morality

The campaigns for this year's General Election have entered the home stretch. The campaigns, filled with sordid character assassination, raise questions about politics and the applicable law on defamation. The antagonisms we watch on a daily basis raise questions on democracy. Does democracy, by its very nature, attract and engender demagogues? Is political rhetoric governed by or is it outside the ordinary rules of defamation? What effect does the corrosive, dishonest and inflammatory political defamation and negative campaigns portend for our democracy?

IMPORTANT VALUES

This issue contrasts two important values: freedom of expression and individual reputation. Anyone who watched the Evans Kidero–Peter Kenneth–Miguna Miguna–Mike Sonko TV debate must have got the feeling that the performance of these Nairobi gubernatorial candidates was an ill demonstration of what leaders ought to portray to the nation. Insults, invectives and slur flew easy and fast. Substance on how to govern Nairobi was scanty and sparse. We all waited to hear what insult Miguna would unbridle against his rivals on whose faces was written anger, fury and bated, open irritation. Constitutionally, political rhetoric falls in the class of freedom of expression. It clutches on the right to impart information or receive ideas. However, the right to communicate or divulge information does not include hate speech, advocacy of hatred or vilification of others. This right to dignity is expressly reserved as the right to reputation. It would, therefore, appear that unfounded and malicious statements on the character of a political opponent are not protected under the Constitution or the law.

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A statement made with actual knowledge of its falsity or made in reckless disregard of its truth is not protected under free speech provisions. This requires that candidates check the reliability of their statements before making them. A case in point is the pending Mt Kenya Foundation defamation suit against Nasa leader Musalia Mudavadi. It will be interesting to see how the court determines this matter. It may well be the first time that we get a definitive court ruling on this. In campaigns, candidates make many declarations either as factual assertions or as opinions. While it is near difficult to differentiate between fact and opinion in politics, the law only punishes allegations on factual statements. It is that which you proclaim as a fact which, if incorrect, is punished, not a mere opinion. An argument is raised as to whether political criticism is to be regarded as either fact or opinion. Miguna can criticise Kidero’s leadership. He can say Kidero has failed as governor. But to say over and over again that Kidero is a thief or that Kenneth bankrupted the Kenya Reinsurance Corporation is to move the matter to a different level altogether. The rules of slander are not absent when a politician seeks to belittle and denigrate a rival without offering evidence of the transgressions he alleges. This is not just legal; it is also about the morality of our politics.

FAINT RESPONSE

We need to understand that political rhetoric must stay within the limits of law and morality. In the politics of our times, a politician defamed by another is reduced to making a faint and often futile response. In the meantime, our population is given to believing the accusation, even when made in jest and without foundation. The cure to this is bringing to a stop the making of such unsubstantiated statements. In more developed democracies, a politician who is irresponsible with words is punished by voters through rejection.

In the long term, our political structure and value system must incorporate a genuine desire for clean politics in the same manner that we have espoused electoral conduct bereft of stuffing of ballot boxes or inclusion of dead voters’ names in the register.

Ken Nyaundi is an advocate of the High Court.

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