Ruling on Githongo signals Judiciary’s return to dark days

It is frightening how fast and how deeply we have gone back to the ways and distresses of the worst of the Kanu regime. Every day something happens that reminds us of the bad old days of the 1990s, something that no sensible Kenyan who remembers those days would wish to return.

The contempt exhibited by William Ruto in deliberately positioning himself as the defender of the corrupt and incompetent--besides brazenly exhibiting a wealth whose origins defies logic--is a page from the 1990s. If he is not minimising the Sh21 billion Dams-gate scandal, he is defending the indefensible Kiambu County budget. It could well be that Kiambu County simply copy-pasted budget lines from the national Budget. But doing that is supreme incompetence at best. At worst, it could be outright looting, using the budget lines as cover.

Nevertheless, defending Ferdinand (or is it Clifford?) Waititu in the way Mr Ruto has done sends the message that he does not care for a reputation—even a fake one--as someone opposed to corruption. Is he telling us that whether we think he is corrupt is irrelevant since he has the game all stitched up? Is his refusal to explain the massive donations to churches and others an expression of his contempt for us? Or maybe he is sending the message that he is so powerful that as long as you support him, then you can continue looting or being incompetent with impunity.

Ruto is not alone in this brazenness. We are also seeing the Kenyatta family business empire gobbling up everything in its wake. They have bought up practically every dairy company in the country, but for New KCC—which is constantly being threatened with privatisation and we know what that means--and the brave Githunguri Farmers’ Cooperative which keeps resisting pressure to sell. The recent attempts to prohibit the selling of unprocessed milk—the mainstay of most rural areas—would have surely benefited Brookside as the effective monopoly.   

And we hear of the family’s purported involvement in the excessively priced container mobile clinics rotting in Mombasa but already paid for, and in the forced-on-county’s CT scans that were overpriced. And now, like the days of the Kanu era, some members of the Judiciary seem to want to turn the clock back. The recent case of Chris Murungaru vs John Githongo would fit perfectly in the 1990s when judges were part of the arsenal against the freedom of expression and whistle blowing.

The dossier

The High Court found Mr Githongo liable for defaming Murungaru in authoring the famous “Githongo Dossier” outlining the facts, allegations and analysis around the Anglo-Leasing type scandals. Yet, what Githongo did was within his remit as a PS and the dossier was submitted to President Kibaki and other relevant offices for further investigation and action.

If that is defamation, how will intelligence officers ever work? How will internal audits, reviews and investigations in any organisation ever be fearless and brave? If there is one way to stymie whistleblowing and the war on corruption, it is by weaponising defamation. When someone whistle-blows, the appropriate action is to investigate further and deeper and to praise the whistleblower, especially if it stalls or stops corruption; it is not to punish them.

The judgement asserts that Githongo publicly disseminated the dossier to then Nation journalists Joseph Odindo and Wangethi Mwangi which was then serialised in the Daily Nation. True, Messrs Odindo and Wangethi visited Githongo in exile in the UK but to leap to the conclusion that the visit was how Nationgot the dossier is quite far-fetched. Indeed, the judge offers no rationale for reaching that conclusion. In fact, by this time, there were numerous reports in the public domain containing aspects of the Githongo Dossier.

Also worrying, and a repeat of the Kanu era ways, was the size of the award against Githongo set at Sh27 million. The judge attempted to rationalise this amount, using judgments from Australia and Canada as though our standard of living and incomes are comparable!

Remember it was during the Kanu era, when Nicolas Biwott got awards for defamation—even from bookshops that merely stocked books that Biwott claimed defamed him—that effectively reduced freedom of expression. Judge Alnassir Visram was at the center of these cases that adversely affected freedom of expression.

Simply put, we have a Constitution now that protects and elevates freedom of expression and implicitly supports whistle-blowing. It is superior to case law and any statutes, and it is unbelievable that there is absolutely no mention of freedom of expression in the judgment, even sui moto from the judge. After all the blood, sweat and tears that got us the Constitution, every Judge should make instinctive references to the Constitution and to the freedoms therein, especially in cases that challenge the enjoyment of rights. Greed, decay, looting, abuse of power and repression has stuck with the political class. The Judiciary must not allow itself to go there.

- The writer is former KNCHR chair. [email protected]