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Biwott libel awards criticised

Sunday March 24 2002

By NJERI RUGENE

Lawyers yesterday questioned awards for libel handed down by the High Court, terming them a move to suppress fundamental rights.

Also condemning the awards were a cross-section of leaders who claimed the judgments were intended to muzzle the Press ahead of the election.

On Friday, the High Court awarded Trade and Industry Minister Nicholas Biwott Sh20 million in a libel case against The People newspaper, bringing to Sh60 million the total of damages the courts have awarded the minister in defamation cases over the past two years.

Former Law Society of Kenya chairman, Dr Gibson Kamau Kuria, said the judgment "makes a mockery of the enjoyment by every person of the freedom of expression. It is making it very expensive to exercise this freedom."

He called on the Court of Appeal to intervene and reduce "drastically all the manifestly high libel awards".

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The People, owned by politician Kenneth Matiba, was found liable together with its former editor-in-chief, Mr George Mbugguss, over an article about the Turkwell Gorge hydro-electric power project.

Lady Justice Joyce Aluoch also barred the newspaper from publishing "any such libels" about Mr Biwott.

She said the Turkwell story, which appeared on March 10, 1999, had portrayed Mr Biwott as a corrupt, dishonest and fraudulent person. The story had referred to the signing in France of a government contract for the construction of the Turkwell Gorge dam.

Mr Biwott had argued that, contrary to the newspaper's claims, the contract was regular as five feasibility studies had been done on it. The first one was carried out in 1976, before he became a minister.

The judge said the newspaper linked the minister to corruption, a serious offence which carries a prison term of not less than five years.

Yesterday, Dr Kuria said attempts by the High Court to discipline the media through the use of high libel awards would be counter-productive.

"The High Court's use of high awards to encourage the Press to be more responsible will fundamentally weaken our already fragile democracy and press," he said and urged the court to re-think its approach and "instead follow the global trend".

"In the short run, it will certainly put out of business some newspapers and so intimidate the remaining ones so that the Press will cease to be a check to abuse of power it is designed to be in a democracy."

The law don also wants the Defamation Act, which came into effect in 1992 through an amendment, repealed saying it had done "enough harm to the country and democracy".

Though the amendment was intended to be a check on the practice of multi-partysm, the human rights lawyer noted, it was unnecessary and of "dubious'' constitutional validity.

"That amendment has made very burdensome or very expensive the exercise of freedom of expression by the print and electronic media, authors, publishers and books and magazines,'' he said

He advised that the Act's constitutional validity be tested and described as outdated, the "stern approach" adopted in the case against The People.

The Kenya Union of Journalists and the Media Institute called for an end to the "outrageous awards", describing them as an affront to the free press.

In a joint statement signed by KUJ chairman Tervil Okoko and Media Institute Director David Makali, the two bodies called on the Judiciary to recognise the social value of the media and their commercial welfare in a depressed economy in which they operate, before attempting to cripple them through huge libel awards.

Runyenjes MP Njeru Kathangu saw the awards as "a conspiracy to silence the media" ahead of the General Election.

He cautioned the Judiciary against being used to silence the media, saying that the institution had a duty and responsibility to protect and encourage democracy.

Lurambi MP Newton Kulundu described as "perplexing" the high awards against the media. He saw the awards as aimed at paralysing media houses and a move to kill democracy.

LSK vice chairman Mirugi Kariuki said the awards are unprecedented in the history of defamation cases. "They seem to be in a category of their own and out of proportion. In the face of such penalties, the Press will become too cautious.

Nairobi lawyer Ng'ang'a Thiongo accused the Judiciary of double standards and wondered why Mr Justice Evans Gicheru, a judge of the Court of Appeal, was awarded only Sh2.5 million in a defamation case.

"It is my view that if it had to be given, a maximum of Sh2 million award would have sufficed if a Justice of a Court of Appeal, whose standing is higher than that of a politician, could be granted Sh2.5 million.

Another City lawyer Martin Nyagah cautioned that the huge awards are likely to set a "dangerous'' precedent and affect negatively the freedom of the Press.

"The ruling will also bring to question the independence of the judiciary because this has not been happening universally and it appears only very few people are able to get such hefty awards,'' Mr Nyagah said.