How crime suspects use courts to evade liability

The controversial payment of Sh1.5 billion in compensation for a controversial Ruaraka land makes the kind of stories editors crave and also attracts interest from the public because of the amount of money and the individuals involved, some of whom are senior government officers.

But no sooner had the mainstream media and bloggers picked up the story than it was muted through a series of court privacy injunctions, commonly known as gag orders.

Whispering Palms Estate Ltd, which was paid the money, its partner companies Afrison and Huelands, and its director Francis Mburu Mungai rushed to court and obtained gag orders against anyone and everyone.

MEDIA HOUSES

Within days, except for investigations by parliamentary committees, one of the major scandals of the year has disappeared from the headlines and consequently denied the public their constitutional right to information.

Whispering Palms Estate Ltd obtained orders against local media houses Nation Media Group, Standard Group, The Star, bloggers, lawyer Apollo Mboya – who is representing the whistleblower in the matter, Meshack Onyango Dehay – Google, YouTube, Facebook and Twitter, among others. The orders against the bloggers, Mr Mboya and the social media platforms were originally set to expire on June 7 and 11 but were extended to July 10 when the judge who issued them, Justice Joseph Sergon, will be available.

MAJOR SCANDAL

“Any person who was mentioning the scandal, whether on social media or other platforms, automatically became a candidate for this blanket gag order. In my case, it didn’t even occur to them that I am a lawyer and I am representing a key witness in the matter,” Mr Mboya said.

And so, in one fell swoop, lights were switched off a major scandal and the taxpayers left in the dark over the matter.  According to lawyer George Kithi, this particular order is legally unsound. 

“The import of it is to gag the entire world. There cannot be a right against the entire world. The right must be specific against individuals and only those who can be regulated by the court,” said Mr Kithi, adding that social media users are virtual persons that our courts may not have jurisdiction over.

TRANSMITTED

The Ruaraka land case goes to demonstrate how suspects in public-interest cases abuse court processes to mute public discussions and in effect evade accountability. It is a tried and tested method but whose consequences to news gathering and the right to information is huge.

“The constitution presupposes that all liberties are enjoined. They cannot be looked at disjointedly so as to deny the public access to information and freedom of expression. To say that information must not be transmitted is wrong. Rather, the order should be that information should be transmitted correctly,” said Mr Kithi.

The biggest problem with the gag orders is the ease with which the applicants get them – all orders are issued ex parte, denying the affected parties, in this case the public and the media, the opportunity to argue their cases.

REPUTATION

“Whereas we have a robust right to public information, courts have not appreciated this. Instead, the courts place a premium on the right to protection of reputation, which is not a right in the Constitution, over the right to know, which is a constitutional provision,” says Mr Sekou Owino, head of Nation Media Group’s Legal Department.

An October 2017 article on the Yale Law School website, “When Silence Isn’t Golden: How Gag Orders Can Evade First Amendment Protections”, notes that “gag orders … function as prior restraints on speech”.

“Prior restraints — judicial orders that proactively prohibit people from talking, rather than allowing for after-the-fact litigation over what was said — are presumptively unconstitutional,” the article observed.

IMPLICATIONS

Combing through the archives, the number of gag orders and their implications are mind-boggling. For instance, in the case of Dubai Bank and National Bank of Kenya, the executives then rushed and obtained injunctions against the media yet the situations that were being discussed could have been salvaged in time if not for the gag orders.

Later on, the cases were to explode in public after the Capital Markets Authority (CMA), for example, in April this year fined former NBK managing director Munir Sheikh Sh112.8 million for cooking books of accounts.

Mr Munir was also disqualified from holding a board position in any publicly listed company or working for a licensed person for three years.

Meanwhile, the Central Bank of Kenya (CBK) placed Dubai Bank under statutory management on August 14, 2015 after the lender was found to have been experiencing liquidity and capital deficiencies and breaching its daily cash reserve ratio. The Kenya Deposit Insurance Corporation (KDIC), which had been the receiver manager, recommended to CBK that the bank be liquidated.

PUBLIC OFFICER

Incidentally, the courts had granted both banks their applications to prevent media reporting on the questions that were emerging way before the CMA and CBK moved in respectively.

“People want to use courts to hide their iniquities but which later turn out to be true, and NBK and Dubai Bank are classic examples. By so doing, courts are lending themselves to injustice against Kenyans. In other jurisdictions, you cannot get such orders if you are a public officer or the matter involved is of public interest,” says Mr Owino.

Also, almost all suspects in the Sh56 billion Anglo Leasing-related contracts had obtained gag orders against the media, most of which are still in force more than a decade after the scandal broke out. Ideally, what this means is that the media is confined to reporting only from the court cases and parliamentary investigations in the biggest scandal during President Mwai Kibaki’s tenure. This was despite the Public Accounts Committee (PAC) and Public Investments Committee (PIC) mentioning some of them in their reports.

Similarly, former Nairobi Governor Evans Kidero has two cases against Nation Media Group that prevent the media house from reporting on the questions arising from his time as the chief executive of Mumias Sugar Company.

INTEGRITY

Others who have obtained gag orders against the media in recent times include former Athletics Kenya chairman Isaiah Kiplagat, former president of the Football Federation of Kenya Sam Nyamweya and former chairman of the Ethics and Anti-Corruption Commission Philip Kinisu, who later withdrew.

All the people who have sought protection from the injunctions had had questions about their conduct and integrity questioned.

According to Mr Kithi, media needs to actively seek to get involved in such orders because they deny them their rights which are constitutional rights.

“When media houses are gagged and they do not challenge those orders it becomes their problem. When they fervently challenge those orders then the jurisprudence against the orders will be developed. For now the jurisprudence is not there because the media pretends that it is uninvolved so that when they receive such an order it doesn’t want to incur a lawyer’s expense to overturn them,” he said.