The Nation (Nairobi)
Peter Kimani
12 March 2007
opinion
Nairobi — "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications... Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal he must take the consequences of his own temerity."
The wisdom of British writer William Blackstone's words, which were published in 1765, was revealed last week when a Nairobi court sent a journalist to jail.
Mr Mburu Mucoki, who edited The Independent, was charged with criminal libel. This is a legal relic no longer in force in much of the world, save for flourishing democracies like ours where State machinery is still used to punish the wretched of the earth - in lieu of the hefty fines that the rich can afford.
Such was the case of Mucoki, whose newspaper was ordered to pay Sh20 million to Justice minister Martha Karua for aggravated, exemplary damages in a libel suit two years ago.
Since the courts cannot compel one to pay what one does not have, the matter would have ended there, had the Justice minister not sought to extract more justice by having the State institute criminal libel charges against Mucoki.
Last week, he was jailed for one year after he failed to raise a Sh500,000 fine.
Even without delving into the merits of the case, there are simple yardsticks that can offer guidance - such as the distribution of the paper. How many people read the offending article anyway?
Offer tea and coffee
There are many levels in which class struggles are manifest in the debacle. To start with, The Independent is not part of the mainstream media, the sort that have business cards, with Press conferences hosted in company boardrooms where polite waiters offer tea, coffee or both.
Neither are such enterprise insured against libel, nor do they enjoy the guidance of legal experts who would advise against publication of potentially actionable stories.
More often than not, the alternative press - or the gutter press, as some people contemptuously refer to them - keep an ear to the ground and pick vibrations of information that's only whispered about.
More often than not, they publish information that the mainstream press wouldn't touch because it is too embarrassing, or due to corporate corruption that ensures filth from certain quarters is never made public.
While the law must be very firm in protecting people's reputations, it must equally be firm in safeguarding the public's right to know.
The muted condemnation of the editor's jailing is, by itself, a subtle acknowledgment of class struggles that appear to have seeped through all levels of this stratified society.
How would human rights organisations that depend on the self-same exploitative structures that the alternative press expose, speak out without jeopardising their bread and butter?
Rotting away in jail
If Mr Mucoki had been a mainstream journalist, there is little possibility that he would be rotting away in jail today.
The din generated by the civil constituency would have been enough to break open the prison doors, and push for repeal of the archaic legal instrument whose time came and went in the last century.
But in our silence, we have consented to an injustice being committed, even as we take pride in the unchallenged assumption that ours is one of the freest Press in this part of the world.
Incidentally, the onus of informing the world of the jailing of Mr Mucoki was not on the local press, vibrant and free as it is. It was through the Paris-based Reporters Sans Frontiers, mediated by the London-based Reuters news agency.
Beyond criminal libel, there is a raft of legislation that continues to be used to curtail free flow of information. Some of these laws have been proposed in the fullness of the 21st century.
The Miscellaneous Amendment Bill (2001), for instance, seeks to change the Books and Newspapers Act and the Films and Stage Plays Act.
The Bill appears to target the alternative press by demanding, among others, that the bond paid by anyone wishing to publish a newspaper is raised from Sh10,000 to Sh1 million.
Other aspects of the Bill, which would in effect mean that every film screened to the public would be vetted by the State, were successfully petitioned by this newspaper in court.
If it's business as usual when journalists are jailed for crimes that have remedies through civil liability, then the State is relapsing to the dark ages of Kanu era. That would be something for Kenyans to remember as they go to the polls in nine months.
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