Peter Mwaura
13 November 2009
opinion
Nairobi — Suing the United States government for defamation on its own territory is a formidable undertaking. In general, a sovereign government cannot be sued unless it allows itself to be.
And suing for defamation in the US has many downsides, and they include high legal fees, complex procedures and selective application of the law. Cases, especially those on matters of public interest, can go on for years.
The law also recognises that a person can be "libel-proof" when his reputation has already been irreparably damaged. So he cannot recover more than nominal damages for subsequent defamatory statements.
The American defamation law is truly exceptional, almost dysfunctional. Defamation cases are difficult to win. And even if one wins, one can end up paying tens of thousands of dollars in legal fees.
If one loses, one can face a massive bill for the legal costs of the other party on top of one's costs. So only people with deep pockets, or desperately trying to protect their good reputation sue.
It would therefore be rash for for Attorney-General Amos Wako to take on the US government in this potentially complicated area of the law. I am glad, however, that Mr Wako did not definitively say he was going to sue.
All he said in his statement on November 4 was that he intended "to seek legal advice with a view to instituting legal proceedings in the United State of America." On October 26, US assistant secretary of state Johnnie Carson announced in Nairobi that his country had decided to revoke the Kenya government official's visa.
He did not reveal his name, describing him only as an "official of influence", adding that he had "obstructed the reform process, failed to end the cycle of impunity and has been an obstacle in the fight against corruption." It was widely believed that the unnamed official was Mr Wako, who admitted he was the one.
He said he had received the notification that his visa to the US had been revoked, adding that the reasons given were defamatory. But he denied he had been "engaged in 'corrupt actions which have adversely affected the national interests of the United States'."
Suing the US in these circumstances would be ill-considered, unless the suit is intended to save face. It's common to threaten with a defamation suit, and then later abandon the pursuit. Most suits are just such bluffs.
Regarding sovereign immunity in suits, Mr Wako is lucky if he intends to sue. The US Congress passed in 1946 the Federal Tort Claims Act, which allows the government to be sued for torts, such as defamation, committed by its employees in their official capacity.
The act, however, bars claims based on any injury suffered in a foreign country. This means Mr Wako cannot base his claims on injury to his reputation suffered in Kenya, not in the US. This limits the value of damages he can collect if he wins.
The American defamation law is also applied selectively, if one is a public official or public figure on a matter of "public interest", as opposed to a private individual. A much higher burden of proof is imposed on a public figure to prove that he has been defamed than is required for a private individual.
A public figure can win a suit for defamation only if he can demonstrate "actual malice". And it is difficult to prove actual malice even when somebody makes a false statement on a matter of public interest. This principle was established by the 1964 case, New York Times Company v Sullivan.
The precendent-setting case ruled that even when one makes a false statement on a matter of public interest, one is protected if there is no "actual malice" (reckless disregard of the truth).
Where the person suing is a public figure, he or she must prove actual malice with "clear and convincing proof". So Mr Wako must prove that the statement by Mr Carson was made with "actual malice".
This means that when he made the statement he knew it was false, or he issued the statement with reckless disregard of whether it was false or not. No doubt, Mr Wako will consider all these possible downsides before attempting to sue Uncle Sam.
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