Why democracies have got rid of criminal defamation laws

Thursday February 9 2017

Justice John Mativo at the High Court in Nairobi on February 9, 2017. Three days earlier, he declared unconstitutional a section of the penal code that criminalised some aspects of libel and defamation. PHOTO | PAUL WAWERU | NATION MEDIA GROUP

Justice John Mativo at the High Court in Nairobi on February 9, 2017. Three days earlier, he declared unconstitutional a section of the penal code that criminalised some aspects of libel and defamation. PHOTO | PAUL WAWERU | NATION MEDIA GROUP 

By PETER MWAURA
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Nearly 14 years ago, Jackson Kiilu and Francis Muchiri were charged in Eldoret with the offence of publishing defamatory matters about Reuben Chesire, contrary to Section 194 of the Penal Code. The defamatory material was published in The Weekly News, which most Kenyans may never have seen or heard about. It was, in fact, a fly-by-night newspaper.

After hearing eight witnesses and submissions from the prosecution and the defence, an Eldoret resident magistrate ruled they had no case to answer. The State appealed against the decision on five grounds, including the argument that the magistrate erred in acquitting the accused as there was sufficient evidence. However, Justice George Dulu, in a judgment on February 7, 2005, upheld the magistrate’s decision.

This early case is illustrative of some of the reasons it is unnecessary to criminalise defamatory statements. A civil law exists to provide relief and restitution when one is defamed by another. Chesire should, and could, have gone to court to seek relief and restitution from defamation. The State should not have used public resources – police and prosecutors – to seek to punish individuals in a case where a civil remedy exists.

IS UNCONSTITUTIONAL

Good news has come in the latest case in which the State has tried to employ criminal libel to sanction Facebook bloggers Jacqueline Okuta and Jackson Njeru. Justice John Mativo ruled that the use of Section 194 of the Penal Code, which contains the criminal libel used against them, is unconstitutional (Milimani Law Courts Constitutional & Human Rights Division, Petition No. 397 of 2016).

In the judgment delivered on February 7, and which, in my view, has wrongly been hailed as totally expunging the offending law, Judge Mativo elaborates on the reasons “it is absolutely unnecessary” to criminalise defamation. The reasons include the fact that there is an appropriate and satisfactory alternative civil remedy to combat the mischief of defamation.

“Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalise defamatory statements,” he writes. He also argues that the international and regional instruments frown upon criminal libel. Moreover, he says, criminal libel does not pass the test of proportionality considering the drastic punishment prescribed for it. It “offends the right to freedom of expression”. He says that the harmful and undesirable consequences, include the chilling possibilities of arrest, detention, and two years’ imprisonment, which are “manifestly excessive in their effect and unjustifiable in a modern democratic society like ours”.

NOT JUSTIFIABLE

He concludes that criminal defamation is not justifiable in a democratic society as it is inconsistent with the freedom of expression guaranteed by the Constitution. 

But did the judge expunge criminal libel from the law books as celebrating journalists and media seem to think? This is what he said towards the end of his 20-page judgment: “A declaration be and is hereby issued that Section 194 of the Penal Code, Cap 63, Laws of Kenya, is unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33 (2) (a) - (d) of the Constitution of Kenya 2010.”

That means criminal libel is still constitutional and valid in dealing with those who advocate hatred. Article 33 says hatred constitutes ethnic incitement, vilification of others, incitement to cause harm, or hatred based on any ground of discrimination, direct or indirect, against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth.

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