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Hefty libel awards threaten media freedom

When it comes to media freedom in Kenya, the government is usually the main suspect.

Parliament mostly gets away with it largely because it can easily let the anti-press freedom laws pass and blame the Executive whenever there is a public outcry or when journalists are clobbered, arrested or even killed in the line of duty

In ranking media freedom in Kenya, international watchdogs such as the International Press Institute rely on evidence of state repression.

Rarely is the third arm of governance, the Judiciary, seen as a threat to press freedom.

Yet it is actually an even greater threat than the Executive and Parliament combined.

How so?

All the leading media houses are facing multi-million-shilling law suits filed by accusers demanding compensation for harm done to their reputations by certain media reports.

Now, while we have no intention of defending unethical reporting, there is one specific clause in the country’s libel laws that is increasingly raising concern: the fact that whereas as there is a minimum figure set for libel, judges have the freehand to set the amount they deem fit for each case.

Reputation is priceless. But to give an institution a blank cheque to set the value of reputation in a country as ours is to put other people’s fates at risk. This is especially so in the current environment where most of the people who would sue really have no reputation at all.

It is true that freedom must be accompanied by responsibility. That this is the hallmark of good journalism. But hasn’t the time come to ensure our media laws are more corrective than punitive?

Time has come to put a stop to greedy folks who watch the news or buy a newspaper not because they want to be informed or entertained, but because they are looking for any word in a story that could earn them millions of shillings.

It becomes worse when our libel laws put the burden of proof on the accused, not the accuser – which goes against a number of international conventions.

Judges ought to exercise their power to set libel awards with restraint. In setting the awards they must remember that, ultimately, it is not the media owners who suffer but hundreds of journalists who get laid off because the media houses have to cut their losses as they struggle to pay millions in libel suits.

We need to rethink our libel laws. We should remove provisions that were originally designed to protect the status quo and not advance media freedom. We must lobby to set a ceiling for libel suit awards.

For individual journalists, this is a wakeup call: If you do not understand libel laws, or indeed, all laws governing the media industry, you might want to change professions or go back to school.

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