Kenya has, of late, been struggling to redefine the laws of defamation and extend the frontier of freedom of expression while also protecting the public interest and rights to reputation.
In 2017, Justice John Mativo declared criminal defamation offence as “unconstitutional (and) not reasonably justifiable in a democratic society.”
“Criminal sanctions on speech ought to be reserved for the most serious cases,” he said referring to propaganda for war; incitement to violence; hate speech; and advocacy of hatred, which are not protected.
The media in Kenya has often been forced to pay hefty fines as a result of libel suits filed by public officials following a trend set during the last days of Kanu rule when Cabinet minister Nicholas Biwott was awarded Sh67.5 million from four cases he had sued a number of individuals and firms, among them a British pathologist, and two bookshops.
The High Court in 2016 awarded Justice Alnasir Visram Sh26 million in a libel suit against The Standard newspaper.
News organisations have usually relied on a House of Lords ruling in the Reynolds case which had sought to protect “responsible journalism” against hefty libel fines, even if they cannot prove the truth of what they have published.
Before the Reynolds case in October 1999, newspapers in UK were being forced, even when they had carried accurate reports, to pay damages if they could not prove what was published was true.
The Reynold’s case gave newspapers some protection, especially in Europe, if they published information that the public was entitled to know, although it never protected malice.