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Kenya Courts Must Curb Abuse of Freedom of Speech On Internet and Everywhere

21 Oct

When Safina leader Paul Muite and others announced about a week or so ago that they may be suing PNU activist and spokesman Moses Kuria over defamatory statements they allege Moses made on his Facebook, I said the following:

In the first case to test the boundaries of freedom of speech in these fora, Safina leader Paul Muite and several others are reported to be off to the courts to pounce on PNU spokesman Moses Kuria over something he posted on Facebook Muite and others consider defamatory.

According to the story, the offending post Kuria is alleged to have posted, says, “I have said Ocampo has no case. All he has are fake witnesses coached by Hassan Omar, Wambugu Ngunjiri, Paul Muite, Ndung’u Wainaina, Njonjo Mue and Maina Kiai.”

Muite and his co-complainants apparently asked Kuria to withdraw the statement but he has refused and dared them to take him to court.

I then said, here is my take on this:

First, unless Kuria has evidence to back-up his claims that (1) there are fake witnesses (2) Ocampo is relying on (3) to make his case (4) that have been coached (5) Muite and his co-plaintiffs, then it would be wise he withdraws or modifies his statement.

Second, even if Kuria has some evidence or reason to believe the foregoing, it’ll still be wise to withdraw or modify this assertion for several obvious reasons, not the least is, a case against PNU running parallel with the Ocampo Six can only help solidify the image of PNU or whatever is left of it as the party of impunity and status quo.

Third, strictly as an ODM supporter, I would urge Kuria to remain defiant and defend the threatened suit, if he believes he has the evidence to back-up his claim.

Fourth, as Kenyan, I am for Kuria to withdraw or modify his assertion for I don’t see any good that would come out of taking a case like this to court but see all the bad the would, such as a rekindling of existing wounds and flaring up of animosity.

Fifth, regardless of what comes of this incident, let all netters and bloggers know that they must be cognizant the fact that freedom of speech does not carte blance to write and say anything and whatever one wishes. In time, and that time is coming sooner than later, there will be good cases to establish this fact, and that is, we must have clear demarcations of what is or is not actionable akin to the time, place and manner restrictions that have held freedom of speech in check here in the US, while allowing for the widest possible expression of speech unlike anywhere in the world.

The case has now been filed according to the news story that has just been posted on the Daily Nation Online.

I restate what I said in my earlier blog above and am working on a blog, or an amicus curiae brief to be filed in the matter in which I’ll make the case I have been making all along about freedom of speech and that is, freedom of speech cannot and should not be abused in these fora or anywhere and that the courts must provide clear guidelines as to what is or is not within acceptable limits of free speech in the context of our newly reaffirmed rights under the new Constitution.

Those of us who have lived in countries such as the US with maximum and enviable protections of free speech and press know fully well this is not a standard suitable for a young democracy such as Kenya therefore a somewhat more stricter scheme of rules must be adapted and applied in Kenya, especially with respect to our leaders at the top.

This is critical in nourishing both these freedoms as well as maintaining the integrity and respect of our institutions whose leaders must be accorded the same respect and dignity.

I’ll expound on this in my blog and/or brief.

Peace, Love and Unity

Omwenga

And now the Daily Nation Online  story:

Safina Party leader Paul Muite and four others have sued a Party of National Unity (PNU) official over comments on the social networking site Facebook Friday.

Mr Muite, Kenya National Human Rights official Hassan Omar, Maina Kiai, Ndungu Wainaina, and Wambugu Ngunjiri have sued PNU activist Moses Kuria for defaming them in a comment he posted on Facebook.

In what could be a precedent-making case in Kenya, the five complainants say that Mr Kuria defamed them by posting on his Facebook wall on or about September 29 a comment which read: “I have said Ocampo has no case. All he has are fake witnesses coached by Hassan Omar, Wambugu Ngunjiri, Paul Muite, Ndungu Wainaina, Njonjo Mue and Maina Kiai.”

They are seeking a permanent court injunction restraining Mr Kuria, whether by himself, or his agents from further publishing, or causing to be published the said words or any words defamatory of the plaintiffs.

The five also want to be paid general and aggravated damages as a result of the defamatory statementsand that Mr Kuria be ordered to pay the costs of the suit together with all interests accrued.

In their petition, the five say that the words complained of were understood to mean that they interfered with due administration of justice by manufacturing and coaching false witnesses.

“It also implied that we interfered with due administration of justice by coaching false witnesses in respect of the most heinous crimes under International Law, that is, crimes against humanity,” reads the petition.

It further claims that the words meant they have indulged and participated in the perversion of justice, procured false witnesses to mislead the International Criminal Court (ICC) and falsely implicates fellow citizens and that they are corrupt persons and are guilty of being dishonest.

The complainants stated that the words were calculated to disparage them in their respective professions and standings as politicians, human rights activists and respectable members of society.

“By reason of the publication of the said words the complainants have been severely injured in their credit, character and reputation, and have all been brought into public scandal, odium and contempt,” reads the petition.

They submitted that even after receiving a letter demanding that he apologise and withdraw the comments within 7 days, Mr Kuria refused and instead went ahead to issue another defamatory “press release” on his Facebook page.

They submitted that Mr Kuria reiterated that he would not offer any apology or retract the statements, arguing that it was inconceivable for one to try to curtail the freedom of expression in the social media.

Mr Kuria said in his post that he has significant information on the activities and role the five have been undertaking regarding the ICC cases and that their hands have been caught right inside the sugar jar.

They submitted that Mr Kuria’s reply implied that they have conspired with other unnamed third parties to pervert the cause of justice and interfere with due administration of law.

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1 Comment

Posted by on October 21, 2011 in Law, Politics

 

Tags: , , , ,

One response to “Kenya Courts Must Curb Abuse of Freedom of Speech On Internet and Everywhere

  1. Julius Bosire

    July 16, 2012 at 1:15 AM

    Hi Sam. Please send me your contacts.
    Bosire

     

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