This month, the 2017 General Election enters the home stretch. The campaigns, already filled with sordid character assassination and disparaging confrontations, raise questions about politics and the applicable law on defamation.
On an even more serious tone, the antagonisms we watch on newslines, on a daily basis, raise questions on democracy. Does democracy by its very nature attract and engender demagogues? Is political rhetoric governed by or is it outside the ordinary rules of defamation? What effect does the corrosive, dishonest and inflammatory political defamation and negative campaigns portend for our democracy?
This issue is important because is contrasts two important values; freedom of expression and individual reputation.
Anyone who watched the Kidero/Kenneth/Miguna show must have got the feeling that the performance of these Nairobi gubernatorial candidates was an ill demonstration of what leaders ought to portray to the nation.
Insults, invectives and slurs flew easy and fast. Substance on how to govern Nairobi county was scanty and sparse. We all waited to hear what insult Miguna would unbridle against his competitors on whose faces was written anger, fury and open irritation.
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Constitutionally, political rhetoric falls in the class of freedom of expression. It clutches on the right to impart information or receive ideas. It is significant, however, that the right to communicate or divulge information does not include hate speech, advocacy of hatred or vilification of others.
This concurrent right to dignity is expressly reserved as the right to reputation. It would therefore appear that unfounded, malicious statements on the character of a political opponent is not protected under the constitution or the law. A statement made with actual knowledge of its falsity or made in reckless disregard of its truth or falsity is not protected under free speech provisions.
This requires that candidates check the reliability of their statements before they make them. A case in point is the now pending Mt. Kenya Foundation suit against Mudavadi. It will be interesting to see how the court determines this matter. It may well be the first time that we get a definitive court ruling on such an issue.
In actual campaigns, candidates make many declarations either as factual assertions or as opinions. While it is near difficult to differentiate between fact and opinion in politics, the law only punishes allegations on factual statements. It is that which you proclaim as a fact which, if incorrect, is punished, not a mere opinion.
An argument is raised as to whether political criticism is to be regarded as either fact or opinion. Miguna can criticiae Kidero’s leadership. He can say Kidero has failed as a county governor. But to say over and over again that Kidero is a thief or that Peter Kenneth bankrupted Kenya-Re is to move the matter to a different level altogether.
The rules of slander are not absent when a politician seeks to belittle and denigrate an opponent without offering actual evidence of the transgressions he alleges. This is not just legal; it is also about the morality of our politics. This behaviour is now seeping to professional ranks where those in positions of authority think they can defame and injure the reputation of others for bigoted gain.
We need to understand that political rhetoric must stay within the limits of law and morality. When children witness adults engaged in banter and unfounded abuses we create in them a softness for the respect for truth.
In the politics of our times, a politician defamed by another is reduced to making a faint and often futile response. In the meantime, our population is given to believe the accusation, even when made in jest and without foundation. The cure to this is bringing to a stop the making of such unsubstantiated statements.
In the more developed democracies, a politician who is irresponsible with words is punished by the voters through rejection. Not so here. The result is that political defamation does not negatively injure the villain’s votes.
In the long term, it is relevant that our political structure and value system incorporates a genuine desire for clean politics in the same manner that we have espoused electoral conduct bereft of stuffing of ballot boxes or inclusion of dead voters’ names in the elector’s register.
Dr Nyaundi is an advocate of the High Court of Kenya
