A new Mzalendo Trust study confirms suspicions that strategic lawsuits are being increasingly used to legally intimidate citizens from expressing criticism of individuals in public offices. The use of strategic litigation against public participation (SLAPP) now needs the attention of all who believe in an independent media and free expression.
Thirty years ago, it was widely acceptable, commonsense even, that anyone who dared publicly criticise the Head of State and his kitchen cabinet, question their health or use of public finances had earned themselves a solitary room at Kamiti Maximum Security Prison. Remember that University of Nairobi lecturer who was arrested for throwing his lunch chair at President Moi’s official portrait? Then there was that international journalist who was deported after prematurely speculating on the death of 80-year-old President Jomo Kenyatta.
What about that website designer who was arrested for educating us on the billions being stolen under President Uhuru Kenyatta and the social media activist who advised the International Monetary Fund to stop lending the Jubilee administration? While not a mass psychology historian, the last sixty years does portray past leaders as highly insecure individuals tormented by others with far less power and privilege. Much has changed since the 1980s, or has it?
Over the last fifteen years, new laws have been introduced. The Constitution (Art.33) guarantees our freedom of information if we do not incite violence and harm against others or call for war. Although struck down as unconstitutional in 2017, the Penal Code (Sec 181) prohibits distribution of “immoral” content. The Computer Misuse and Cyber-Crimes Act (Sec 22 and 23) criminalises anyone who intentionally publishes false information that incites others to cause panic, chaos, or violence.
The Mzalendo Trust study traces these laws and the growing rise of defamation lawsuits that seem designed to intimidate, burden, punish and harass citizens for speaking out against State Officers on matters of public interest. Typically, through their lawyers’, complainants press the courts to gag the defendant or have them fined excessively for advocating on an issue of public interest or concern.
Eighty-four percent of the cases Mzalendo have reviewed involve claims of defamation and false accusations with the remaining 24 percent defendants being slapped (pun intended) with charges of professional misconduct. Cases have primarily targeted human rights defenders, media professionals, and public-spirited individuals who allege corruption and abuse of office.
The cost to the mental health, social interaction and future economic opportunities of public defenders is high. They report the impact of panic attacks, feelings of distress and loss of jobs. It would be fair to say also, that the arc of justice will probably swing one day in their favour. Who can remember the struggle against past corruption scandals without the valiant courage of Martin Shikuku, David Munyekei, John Githongo, Jerotich Seii and Spencer Sankale to mention but a few patriotic icons.
It should be noted that often government officers use public finances to sue their detractors, giving them an undue advantage. For this and other reasons, the use of strategic litigation in this way is extremely unpopular with the public. Ninety-two percent of the people surveyed feel the suits are attempts to shut down public criticism, their right to know, and are unfair and unjustified. This statistic is worth remembering by state officers but especially those in or seeking future elective offices.
Parliamentarians must now review several laws that stifle free expression. The LSK, Judges and Magistrates Association and rights organisations can train the bar, bench, and the public on rights-based alternatives like referring cases to the Media Complaints Commission before litigation. Huge fines against journalists and citizens threaten not only media sustainability but also instil public fear.
Reverend Timothy Njoya walking out in the presence of the President to protest the PCEA General Assembly installation of controversial David Ndumo against a court order on Tuesday was patriotic and honourable. May Kenyans continue to jealously guard their constitutional right to dissent even in the face of impunity, repression, and fear.
This opinion was also published in the Saturday Standard, 13 April 2024