You call me a dog ,well that’s fair enough, the lyrics of a popular song say, ‘cause it ain’t no use to pretend you’re wrong.
The 1990s lyrics by an American rock band have a bearing on the law of defamation, especially today when we have constitutionally protected freedom of expression and freedom of the media.
To call somebody a dog is an insult, which can mean that he’s a dirty lowly animal or any number of other awful things. But does it cause actual damage to the person?
In Kenyan law, inherited from England, defamation is actionable per se. That is, without proof of any damage.
Except for slander — oral as opposed to recorded defamation — there’s no need to prove that as a result of the defamation you’ve suffered actual loss. If you win your case you’re awarded damages — money to soothe your hurt feelings and compensate you for loss of reputation — regardless of whether there was any actual or serious harm.
However, the general rule for compensation in law is that the damages should put the victim in as close a position as he would have been had the injury not occurred. The intention is not to enrich the victim.
That’s why it can be argued the law of defamation needs to be changed so that you can collect damages only when you can prove actual harm.
For example, in the late 1970s, a well-known MP was mentioned in a divorce case as having committed adultery with the woman involved in the case.
But when he returned to his constituency for re-election he was even more popular, with the local women referring to him as “Dume”, a rather positive Swahili rendition of a ladies man.
In another example, Christopher Obure was awarded Sh17 million because the Weekly Citizen, a newspaper with a miniscule circulation, said he had stolen somebody’s wife (HCC No. 956 of 2003).
Mr Obure was Minister of Finance when the allegations were made. But what actual damage did he suffer? In March this year he was elected Senator for Kisii County.
In yet another example, Daniel Musinga, an advocate, sued the Daily Nation which published on August 8, 1999, an item under The Cutting Edge by The Watchman on Page 7 implying, according to his defamation claim, that he was “dishonest in dealing with his clients” (Civil Case 102 of 2000).
He was awarded Sh10 million. But how much did he actually suffer as an advocate?
As Justice Joyce Khaminwa delivered the judgment on May 6, 2005, she noted that he had been appointed a judge, despite the allegations by The Watchman.
The defamation did not damage his career.
Clearly, the law on defamation should be reformed so that claimants receive compensation only if the defamation caused, or was likely to cause, serious harm.