Ruto should be wary in case against activist

SATURDAY OCTOBER 8 2016

Activist Boniface Mwangi at the High Court in Nairobi on December 8, 2015. PHOTO | PAUL WAWERU | NATION MEDIA GROUP 

In Summary

• William Ruto versus Boniface Mwangi will not be an ordinary case as it involves a very high official against an ordinary citizen.
• The asymmetrical relationship between Ruto and Mwangi creates a David-and-Goliath situation, which makes the case unusual.

By GEORGE KEGORO

Deputy President William Ruto has made good his threat to file a suit for libel against Boniface Mwangi following a statement that appeared on a social media platform which the deputy president has taken offence about.

This will not be an ordinary case as it involves a very high official against an ordinary citizen. The asymmetrical relationship between Ruto and Mwangi creates a David-and-Goliath situation, which makes the case unusual.

Secondly, the substance of the case is high politics. The suit requires a judicial determination on whether an intriguing claim allegedly made by Mwangi regarding the unresolved murder of whistle-blower, Jacob Juma, was defamatory of the deputy president or not. This is hardly an easy issue for a court to resolve.

The situation is compounded by the position that Mwangi has taken on the case. Usually, defence lawyers respond conservatively to threats of defamation suits facing their clients. A defence lawyer would hope that, by not aggravating the situation, the claimant might lose interest and decide against filing a suit. However, when presented with the threat of a suit by Ruto’s lawyers, this is not the approach Mwangi took. In a letter widely circulated on several social media platforms, Mwangi’s lawyer Gitobu Imanyara, while stating that his client would not make a retraction as demanded by Ruto or apologise, also significantly compounded the original controversy.

For example, Imanyara asserted that in the event that Ruto sued, his client “will seek to persuade the court that [the deputy president] has no reputation worthy of the indulgence of a court of justice either in Kenya or elsewhere”.

Imanyara’s strongly-worded letter also raised fresh issues regarding the recent termination of the case against the deputy president before the International Criminal Court and promised that if required, he would apply for the High Court to review the ICC proceedings as these would be relevant to a determination of the issues in the defamation case. If Ruto had merely intended to save face by writing a demand letter and leaving it at that, Mwangi’s response made it difficult for the deputy president to walk away.

NEXT STAGE

Once Mwangi files a defence, the next stage will be a hearing. At the hearing, Ruto would have to take the witness stand, a major political spectacle in itself, and would need to show that the matters complained about are injurious of his reputation. He would also be required to furnish evidence of his good reputation, with a view to demonstrating that he has suffered injury. As a witness, the deputy president would be liable to cross-examination and its risks.

On his part, it is clear that Mwangi plans to contest that Ruto has a good reputation that could have been harmed. As a defendant, he has a right to do so as this would mitigate the damages if liability is established.

An attempt to show that Ruto does not enjoy a good reputation can turn into a judicial inquiry into all aspects of the life of the deputy president and, if this case takes that approach, it will morph from a trial of Mwangi into a trial of Ruto. This is not unheard of in defamation cases.

A case that backfired badly, and which widely illustrates this point, is McDonald’s Corporation v Steel & Morris, also known as the McLibel Case. A documentary film, “McLibel: Two People who would not say Sorry”, records the legal battles that occurred in this case.

In 1995, the giant fast food company, McDonald’s, tired of frequent activism against its practices, filed a defamation suit in the High Court in London against two environmental activists Helen Steel and David Morris arising from leaflets that they were distributing about the company’s products and processes, which it considered defamatory.

HIGH COURT

The original case before the High Court lasted 313 days, the longest trial in British history. While the court found that some of the leaflets that the two campaigners had distributed were untrue and therefore defamatory and awarded McDonald’s 40,000 pounds, the judge also found for the defendants in many respects, holding that McDonald’s “exploit children” with their advertising, produce “misleading” advertising, are “culpably responsible” for cruelty to animals, are “antipathetic” to unionisation and pay their workers low wages.

In 2005 the European Court of Human Rights ruled that the McLibel trial had breached the right to a fair trial and right to freedom of expression of the Human Rights Convention, a further endorsement of the defendants’ fight against McDonald’s in the original trial.

Against damages of 40,000 pounds which they have never bothered to collect, McDonald’s spent 10 million pounds in legal costs and commentators regard McLibel as “the worst corporate PR disaster in history”. The case had the effect of reinvigorating a global anti-McDonald’s movement and, two days after the judgment, there were anti-McDonald’s demonstrations in several stores across the UK and the world. Throughout the trial, millions of anti-McDonald’s leaflets were distributed, thus undermining the very purpose to the case.

In the end, the case spectacularly backfired on McDonald’s which had long employed legal proceedings as part of a largely successful strategy of silencing critics. Instead, McLibel turned the tables on the company, which now found itself on trial, with all its business practices receiving massive scrutiny during the trial.

McDonald’s have not sued for libel in the UK since, and other companies have taken note not to “do a McLibel”.

While he has every right to sue, and while he may well succeed in court, Deputy President Ruto might wish to consider whether he is exposing himself to a McLibel, whose political consequences he cannot control.

 

gkegoro@gmail.com