The Star (Kenya) - - Politics -

ITHOUT go­ing into the mer­its of the case in court, the pub­lic ought to be en­light­ened on some of the words and ter­mi­nol­ogy in the con­tention be­tween Deputy Pres­i­dent Wil­liam Ruto and ac­tivist Boni­face Mwangi.

I will rely on a sim­ple hy­po­thet­i­cal ex­am­ple to ex­plain. Ka­mau files pa­pers in court ac­cus­ing Wa­fula of ut­ter­ing or writ­ing cer­tain words caus­ing dam­age to his rep­u­ta­tion. This is what you would call a claim.

Wa­fula, ex­er­cis­ing his right of re­ply, has two op­tions. He can file pa­pers deny­ing the ac­cu­sa­tion, even deny­ing ever ut­ter­ing or writ­ing those words – this would be called a de­fence, or Wa­fula may opt to file a claim within Ka­mau’s claim with the in­ten­tion of de­fend­ing him­self and off­set­ting Ka­mau’s claim, even sur­pass­ing its enor­mity.

In this case, not only does Wa­fula deny what he is ac­cused of, he goes on to show why he ei­ther feels ag­grieved and/or that that Ka­mau never had a rep­u­ta­tion wor­thy of pro­tec­tion.

Be­fore the case goes to trial, the con­duct of civil cases dic­tates that there is ex­change of doc­u­ments (ev­i­dence) to be re­lied on – a process known as dis­cov­ery. If, for any rea­son, ei­ther of the par­ties feels or is of the opin­ion that the other is with­hold­ing in­for­ma­tion crit­i­cal to the proper ad­ju­di­ca­tion of this dis­pute, they are free to seek the court’s in­ter­ven­tion and an or­der by the court di­rect­ing the is­suance of this in­for­ma­tion must be obeyed be­fore trial com­mences.

In this le­gal con­tro­versy, Ka­mau must show that Wa­fula made a state­ment, the state­ment was pub­lished, the state­ment caused an in­jury, the state­ment was false and the state­ment is not pro­tected by priv­i­lege – as is one made by a wit­ness giv­ing tes­ti­mony in a court of law.

This le­gal con­tro­versy of course touches on the del­i­cate bal­ance be­tween one per­son’s right to free­dom of speech and another’s right to pro­tect their good name.

If Ka­mau is a pub­lic fig­ure, he is sub­ject to scru­tiny and crit­i­cism – a higher pri­or­ity is placed on the mem­bers’ of the pub­lic be­ing al­lowed to speak their minds about elected of­fi­cials and pub­lic fig­ures. Ka­mau would there­fore get lesser pro­tec­tion from al­leged defam­a­tory state­ments and face a higher bur­den when at­tempt­ing to win the suit.

We fol­low the case be­tween the DP and Boni­face hop­ing to de­mys­tify the defama­tion laws vis-a-vis free speech as pro­tected by the Con­sti­tu­tion.

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