Article 33 of the Constitution of Kenya, 2010 outlines the freedom of speech. However, this is one of the human rights with a limitation. The limitation touches on aspects such as hate speech, spreading information with the intention of creating fear and intimidation, among others.
Kenyans on X (formerly Twitter) always have what they call friendly banter. At times, it escalates to insults, abuses hate speech, body shaming, and other derogatory remarks. Among Twitter folk, this is christened “vawulence” a corruption of the word violence.
Words are thrown and it gets to a point where one party replies, “I will sue you for defamation.” Before long, a copy of a demand letter is posted demanding the author of the tweet to delete it and issue an apology. (Find a sample demand letter below)
What exactly is defamation? The Oxford Learners Dictionary defines defamation as ‘the act of damaging someone’s reputation by saying or writing bad or false things about them’ The Black’s Law Dictionary defines defamation as ‘The taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander. It is ‘the phrase that describes the slander or libel that has been printed or spoken that hurts a person’s reputation and character.’ Defamation is referred to as libel when in writing and slander if oral.
In Kenya and other Common Wealth Countries, defamation is a Civil wrong and the person defamed can sue. The remedy is usually an equivocal apology via the same means the defamatory statement was published and damages (monetary compensation) which can either be general or specific damages.
Previously, defamation in Kenya was a criminal offence under section 194 of the Penal Code. The repealed section stated as follows: Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanor termed libel.”
However, in the case of Jacqueline Okuta & another v Attorney General Director of Public Prosecutions and Article 19 of East Africa  eKLR, the Court issued a declaration to the effect that section 194 of the Penal Code, cap 63, Laws of Kenya was unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33 (2) (a)- (d) of the Constitution of Kenya 2010. Further, it issued a declaration that any continued enforcement of Section 194 of the Penal Code, Cap 63, Laws of Kenya by the Second Respondent (Director of Public Prosecutions) against the petitioners herein would be unconstitutional and/or a violation of their fundamental right to the freedom of expression guaranteed under Article 33 (1) (a)-(c) of the constitution of Kenya 2010.
Elements of Defamation
For one to prove defamation, there are elements that have to be proven. These are:
- The statement has to be false. One has to prove that the statement uttered or written was false.
- The statement was in fact referring to you.
- Publication. Publication in this sense can in layman’s terms be referred to as ‘distribution.’ To satisfy this element, one has to prove that the statement was disseminated to a third party(ies)
- Injurious. One has to prove that the statement caused injury to them. The statement must have injured their reputation and/or character in the eyes of a reasonable man.
If you are sued for defamation, there are defences available under the Defamation Act. They are:
- Privilege. This is provided for under sections 6 and 7 of the Defamation Act. Fair and accurate reporting of proceedings of high public importance such as court and parliamentary proceedings are qualified as privileged. This means that an action for defamation brought against such, shall not succeed.
- Justification. This is provided for under section 14 of the Defamation Act. This simply means that once you have been sued for defamation and you prove that the words you published were indeed true, then the defamation action fails.
- Fair Comment. As the name suggests, a fair comment is mainly an opinion on matters of public interest.
Do you have any questions regarding defamation? Please send an email to email@example.com for prompt action.
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