Attacks on the Press 2001: Kenya

Continuing a trend that began in 2000, high-ranking politicians and legislators–led by President Daniel arap Moi–brought several libel and defamation suits against the press last year. The judiciary responded by awarding record libel damages, introducing bankruptcy as a possible tool to silence critical media.

In July, President Moi and senior cabinet minister Nicholas Biwott filed a lawsuit against former U.S. ambassador to Kenya, Smith Hempstone, alleging that he had portrayed them as murderers in a 1997 memoir called The Rogue Ambassador. Kenya’s largest and most influential independent newspaper, The Daily Nation, announced plans to serialize the book, but Biwott was granted an injunction on August 21 that forbade the paper from publishing any excerpts until the case was heard.

Moi and Biwott also sued a local bookstore chain, which was forced to remove the books from its shelves. A few days later, Moi’s son also sued the Daily Nation for libel and successfully blocked the paper from publishing any stories about him until the libel case was heard. As of year’s end, all these cases remained in court.

In October, the government announced controversial proposed amendments to the Book and Newspaper Act and the Film and Stage Plays Act. The bill, a revised and harsher version of a bill that was introduced and then shelved last year, sought to increase the publisher’s bond one hundred-fold, from the current 10,000 shillings (US$ 127) to 1 million shillings (US$ 12,722). As in the previous year’s bill, publishers that failed to post this bond would face fines totaling 1 million shillings (US$ 12,722), a three-year jail sentence, or both. Repeat offenders could be jailed for five years and banned permanently from publishing.

A disturbing new provision would make it an offense to sell or distribute any book or newspaper without first depositing a copy with the Registrar of Societies. Offenders would risk a fine of 20,000 shillings (US$254), a maximum of six months jail, or both. It was unclear whether this clause would require newspapers to submit copies to the registrar prior to publication.

Attorney General Amos Wako failed to attend Parliament on December 5, when he was due to move the bill, and still had not presented it before the House’s Christmas recess on December 13. Although some took this to mean that the bill had been shelved, Wako indicated that he would re-introduce it when Parliament reconvened in March, but invited media owners, journalists and the Kenya Union of Journalists to comment on the bill.

The country’s increasingly popular leisure publications, locally referred to as the “gutter press,” caused consternation among the country’s elite by publishing sensational, sex-filled articles about well-known personalities. There were allegations that some editors of these publications routinely extorted money from politicians in exchange for keeping their names out of the magazines. Politicians and even members of the judiciary used these allegations to justify both the draconian media bill and exorbitant libel awards against the mainstream media.

April 25

Royal Media Service

Police officers stormed the Nairobi offices of Citizen FM and Citizen TV, destroying and vandalizing property, including broadcasting equipment.

S.K. Macharia, the proprietor of Royal Media Services (RMS), which owns both stations, was arrested and charged with establishing and using radio communication equipment in violation of his broadcast license and the Kenya Communications Act of 1998.

Citizen FM’s license permitted the station to erect television and radio transmitters in Limuru, on the outskirts of Nairobi. However, Macharia moved one transmitter to his home in a Nairobi suburb and another to his offices in downtown Nairobi, which violated the terms of his broadcasting license and the rules of the Communications Commission of Kenya (CCK) governing transmitters. Citizen was ordered off the air and forbidden from broadcasting. The police confiscated all the equipment.

Macharia was taken to the Criminal Investigation Department for interrogation and then taken to court, where he was charged with using a radio communication apparatus that violated his license. He was released on bond of Kenyan shillings 500,000 (US$6,670) pending trial on April 29.

The following day, Macharia filed a civil suit against Telkom Kenya, the CCK, the Kenya Broadcasting Corporation, and the attorney general. Royal Media’s lawyers also tried to add the police to the list of persons named in the suit, which sought to compel the CCK and the police to return the confiscated equipment, to prevent them from interfering further with Citizen FM and Citizen TV, and to permit the two stations to resume broadcasting.

Macharia’s lawyers further claimed that the regulations requiring media owners to obtain permits to relocate equipment were published after the raid on Citizen’s offices and therefore did not apply to his case.

Royal Media lawyers argued that police and the CCK used a fraudulent search warrant to raid the station’s offices, because in their application for the warrant they failed to disclose the existence of a 2000 High Court order that blocked the commission and its agents from interfering with Royal Media Services Limited.

On August 20, Citizen lost its bid to resume broadcasting. At the same time, High Court judge Alnashir Visram ruled that the CCK’s search warrants had been executed according to law, and that there was no evidence that the commission used excessive force.

In a 98-page ruling, the judge found that RMS and Macharia “attempted to legalize unlawful acts through extra-judiciary means” by providing the court with a false statement that claimed the CCK was notified that RMS was going to transfer the broadcasting equipment. He said that even if such a notice existed, it would not absolve Royal Media Service from complying with its statutory obligations under the Communications Act. Vishram dismissed the suit with costs.

On August 29, Macharia filed an appeal asking that all Royal Media equipment be returned to him. The appeal had not been heard by year’s end, but a pending case from 1995, in which the Customs and Excise Department seized broadcasting equipment from Royal Media, was finally settled in the company’s favor.

By the middle of January, test signals from Citizen FM were being broadcast in Nairobi, although the station was still not legally permitted to go back on the air.

May 23

Chris Omollo, Nation

Omollo, a photographer with the Nation newspaper, was attacked by police officers while covering a police raid on bars in Nairobi West, a suburb of the capital city.

Officers demanded to know why the journalist was taking pictures and began beating him with their guns. Despite orders from the police squad chief to leave Omollo alone, about 20 officers continued to insult and hit him.

The journalist was bruised, his camera was damaged, and some money was taken from his wallet. His driver was also assaulted in the attack. Omollo reported the incident to police authorities in Nairobi.

June 28

Jackson Orina, free-lancer

Orina, a free-lance photojournalist, was covering a political rally in Kitale, Western Kenya, for The Daily Nation when he was attacked by a mob of supporters from Kenya’s ruling party, KANU.

At the end of the rally, Elijah Mwangale, a KANU member who had organized the event, and his agents distributed money to the participants. When Orina began photographing the ensuing scramble for the cash, he was attacked by Mwangale’s supporters.

August 21

Daily Nation

Minister for Trade and Industry Nicholas Biwott, a top aide to President Daniel arap Moi, won a court injunction blocking The Daily Nation from publishing excerpts of Rogue Ambassador, the memoirs of former U.S. ambassador to Kenya Smith Hempstone.

In the book, Hempstone alleges that President Daniel arap Moi personally ordered the murder of then-foreign minister Robert Ouko, beat him, and then watched as Biwott shot Ouko. On July 30, Moi and Biwott sued Hempstone for libel and sought to stop the publication, distribution, and sale of the book or any material that refers to the Ouko murder allegations.

Initially, Moi had threatened The Daily Nation following a full-page advertisement in the August 20 edition of the paper that read in part: “President Moi and Minister Nicholas Biwott want the High Court to stop its sale. What does it contain? How much does it reveal about the country’s most powerful politicians and government?” However, only Biwott filed a case against the paper.

Biwott’s lawyers won the injunction, and, although the paper had already published some brief quotes from the book in which Hempstone calls Moi “ruthless, short-tempered, arrogant and self-promoting,” the editors said they would comply with the ruling.

On September 4, 2001, a high court in Nairobi extended an interim injunction restraining Text Book Centre from further distributing the book. Commissioner of Assize Jeanne Gacheche also blocked the bookseller’s agents and servants from further circulating or selling copies of the book.

The court also extended an order barring the Nation Media Group from publishing parts of the book in The Daily Nation. The case was still pending at year’s end.

Nation Media Group

The Nation Media group, which publishes The Daily Nation, Sunday Nation, The East African, Taifa Leo, and Taifa Jumapili, was barred by the High Court from publishing articles about Jonathan Toroitich Moi, son of President Daniel arap Moi.

High Court Judge Kasanga Mulwa ordered the group not to publish stories on the president’s son until the conclusion of his libel case against The Daily Nation.

That suit stemmed from an August 20 article in The Daily Nation titled “Firm Sues Moi’s Son Over Prime Land,” which described a landmark lawsuit filed against the Kenyan government in the Common Market for Eastern and Southern Africa (COMESA) Court of Justice.

The article said that the lawsuit, the first filed against a government in the Lusaka-based court, was brought by a Kenyan-incorporated firm, Coastal Aquaculture Ltd., which seeks more than 80 million Kenyan shillings (US$1million) in damages and loss of earnings following the government’s compulsory acquisition of part of the company’s 13,000 hectares of land in the Tana River Delta, Kilifi District.

The Kenyan Government took over the land, claiming it should be an environmental preserve. However, part of the area was subdivided and reallocated to 16 companies, several of which, the suit alleges, are owned by Jonathan Moi.

At an August 22 press conference, from which Daily Nation journalists were expelled, Jonathan Moi denied having been given land in the delta.

The Daily Nation did not contest the injunction, and by year’s end there had been no new developments in the libel case.