Judge acquits editor of criminal charges and creates new interpretation for media law

New York, April 5, 2005—The managing editor of the Nairobi-based East African Standard‘s Sunday edition was acquitted of criminal charges yesterday. The charges against David Makali, pending since 2003, stemmed from an investigative article about the alleged murder of Dr. Crispin Odhiambo Mbai, a key player in Kenya’s constitutional reform process.

Nairobi Chief Magistrate Aggrey Muchelule stated in his judgment that the case against Makali and John Chemweno, a police officer who was also charged, had not been established by the prosecution, according to an article in yesterday’s East African Standard.

In September 2003, two weeks after Mbai’s death, the newspaper published leaked excerpts of confessions made by suspects in the case, which was alleged by some to be a political assassination. As a result of the story, Makali was detained for two days and charged with stealing a police videotape that contained the confessions; the charge was later changed to theft of a copy of a tape and handling stolen property. The editor and two other journalists from the Standard say they were questioned by police and repeatedly asked to reveal their sources, which they refused to do.

Makali and his newspaper’s management have consistently denied that he ever had a police videotape, claiming that the paper published its information from a transcript of recorded confessions. Makali pleaded not guilty to the charges, and told CPJ today that the prosecution was never able to prove the existence of a videotape,

The judge also said that “in any case, the fruits of any investigation which are in possession of the police are not their property but that of the public,” according to news reports. To convict Makali, he ruled, would contravene constitutionally guaranteed freedom of expression. Local journalists welcomed this interpretation, as they have pushed for a separate law mandating free access to official information for years. A draft Freedom of Information bill is currently pending before the Kenyan parliament, according to local news reports.

“We welcome this verdict and the interpretation it provides in favor of press freedom,” said Ann Cooper, executive director of CPJ. “We hope this verdict will help to ensure that all Kenyan journalists are free to report on matters of public interest without fear of reprisal.”
For more information about Makali’s case, see CPJ’s alert at www.cpj.org/news/2003/Kenya29sept03na.html