PAPER PRESENTED AT THE ANNUAL KENYAN UNIVERSITIES MEDIA CONVENTION BY KOOME KIMONYE
In media, there is always an escalating level of conflicts either within the media or between the media and the government or even between the media and a third party. A third party in this case has been used to represent a public person, a private person or on some other entities, organizations with established structures.
This paper highlights the sources of conflicts in the media, the most effective methods that the media can employ in resolving these conflicts, and also highlights the impact of court cases on a media house (and the media in general – inclusive of individual media personalities) and how this can compromise the image or the reputation of a media house or of an individual.
In the media industry, conflicts may arise from propaganda, false pictorial representation, manipulated facts, compromised stories among others. These conflicts can either lead to courts intervention – if the media house is taken to court or if an individual writer or media personnel is served with a subpoena. In some other cases, the media can decide to solve the dispute between the interested parties outside the court, else known as the out-of-court settlement.
In order to bring out clearly how the media manages conflicts it is involved in, this paper will take a close examination on some of the most famous media-related cases/conflicts.
The paper will, with all due respect, look at cases that have been dealt with by court orders and the finer details of each. It will solely major in addressing the cases of structural conflicts which are less felt or even realized by the general public.
The media is important in all spheres of development. It is especially important in the areas of conflicts, its management, and most importantly resolution. This is because the media can be misused to fan or even to cause conflict. A good example on how the media can be misused in the recent past is in the Kenyan context where some parts of the media was used in propagating post poll chaos famously known as the post election violence that occurred late 2007 and extended to early 2008. In this context, the media was misused by some malicious individuals to incite the mob against some other tribes.
Another case is of media misuse is that of Radio Mille Colline in Rwanda, which was used to create and increase animosity between the Hutus and the Tutsis. It intensified the fighting and bloodshed. It is therefore useful to understand how such conflicts can arise, and what attempts can be made to avoid such situations.
The media is a channel in the process of communication. It can be a tool in the hands of those of those using it, for instance the journalists. For instant, a journalist from one community media can misuse it to fan a conflict. A good example is the case of Joshua Arap Sang – a Kenyan journalist who is currently facing charges at the International Criminal Court for being accused of misusing the media to perpetrate the violence.
Definition of media
When people think, talk, discuss, or refer to the media, they usually refer to the mass media. This includes newspapers, magazines, television and radio. This is the more visible form of media, basically because it has a wide reach and also it is organized in the form of large enterprises and institutions.
In order to minimize the number of conflicts and at times bring to an end conflicts in the media industry, the governments in most African countries have insisted and still insists on controlling the media and even clamping down on it through imprisonment, disabling printing presses and impounding publications. For instance, Philip Ochieng – one of the most renown writers in Kenya, in his book I Accuse The Press, argues that he has undergone all the forms of torture as a journalist in both Kenya and Uganda. Journalists have died in their efforts to write about the wrongdoing in the society.
The Government control is more significant in the broadcasting sector. This is because radio is the widest reach. In Kenya, for instance an estimated 21 million people rely on the radio. Such a tool can have great potential for good or bad.
The press has the basic task of providing information to the public. It enjoys this right in the premise that information is a basic ingredient of democracy without which citizens cannot organize, plan or agitate for their basic rights such as health, food, water, and shelter in an informed manner.
LIMITING THE PRESS FREEDOM
At one point, the government might be right when trying to limit the media freedom, but at times, it is relatively futile to regulate the press for its (government) selfish needs/move. A Tanzanian magazine known as Radi, responded to a bill tabled by the Government of Zanzibar to limit press freedom, in the following quoted manner:
“…Honorable Minister to censor or control the press and information is an enormous task, but in the first place, it is a dirty job. To censor news and information is to deny the people the right to know the truth; it is to elevate oneself to a level where you think you are the only one with correct ideas and no one else knows better. It is killing the people’s freedom of expression; it is sabotaging or weakening democracy, it is reducing the people’s ability to contribute ideas and participate fully in governing their country.”
To anchor the point home, former Benin’s president, Mathieu Kerekou, voted out of office gave his verdict on the role of independent press. He stated:
“it is because of journalists that everything has turned out badly.”
The freedom of expression, of course is not an absolute right. The right bears a duty that the exercise of that right will not infringe on the rights of others. In any case where this right is misused to infringe or even compromise the rights of others, then, a conflict cannot be avoided and the results might be explosive.
In the year 2001, the Attorney General – Amos Wako- was met with criticisms from media practitioners, civil society, and politicians when he tried to introduce The Miscellaneous Amendment Bill. The Media Bill sought to change the Books and Newspapers Act and The Films and Stage Plays Act. For the former the bill sought to increase to Ksh 1,000,000 from the previous Ksh 10,000 bond required by the registrar general for anyone wishing to publish a newspaper. For the latter, the bill sought to prohibit the screening of films, TV programs, advertisements, and stage plays without the approval of the government. The screening of the above would have to be approved by the equivalent of the press commissar in the former communist Soviet Union.
The bill received sharp and instant criticisms from the numerous civic groups in Kenya. Mutuma Mathiu, a columnist with the Daily Nation currently and with the Sunday Nation at the time of this Bill and currently one of Kenya’s top journalists called it “an attempt to control the minds of the people by filtering what they hear, read, and watch.” He continued to call it “prior censorship” and condemned it as “vile and evil crime.” The Law Society of Kenya (LSK) called the bill “so restrictive.”
As if this was not draconian enough, the media Bill sought to impose a Ksh 100,000 fine for publishers who fail to maintain their publications for six months. This was the third time the AG’s office was suggesting laws of this nature to the Kenyan public. The first two attempts were shelved following intense criticism from civic, religious and media groups.
THE RISE OF GUTTER PRESS
The gutter press, usually referred to as Yellow Journalism, is a form of journalism that lacks the legal framework. The gutter press, usually leaflets printed on A4 size paper, has been accused of ignoring all the ethics of journalism and hence brewing conflicts every now and then. Masquerading like the exposers of graft, these publications have no regard for accuracy, fairness, and objectivity in their reporting. As such, their content is highly libelous and out to tarnish the reputation of its victims, especially top government officials.
Media observers argue that the “excuse” to gag the gutter press is not good enough since Kenya already has in place tough laws on libel. A few weeks after Wako introduced the bill, the courts, in two separate occasions, imposed an astronomical sum totaling Ksh 30 billion on East African Standard and The Kenya Times for libel.
Truth is, the gutter press is not the only vocal critic of the government; some sections of the mainstream media have also been critical to the extent of exposing the high level corruption like the hydra-headed Goldenberg scandal and the Anglo-leasing, which still haunts this country to date. In such cases, the mainstream media is usually ready to back-up its claims with evidence and this has made the power brokers wary. Wako accuses the media and more so the gutter press of failing to regulate itself and dwelling too much on making criticisms of the government a favourite past time, hence the introduction of the Bill.
Geoffrey Archer, an independent media personality, argued that;
We believe the media must be given every amount of freedom. If you muzzle the people for too long, it will get to a point when they will not be able to absorb it, they will explode and there will be developments similar to what was taking place in Eastern Europe. However, the media should realize this in going about their duties; they cannot afford to be reckless. My argument has always been that the journalists’ pen is as lethal as the riffle in the hands of a military marksman. (Emphasis supplied)
Definition of conflict
Conflict is quite a loaded term and therefore does not enjoy any standard definition like many English words. Almost every individual have their way of understanding conflict and that is why there is a variety of definitions of conflict. For instance, different people would define conflict as follows:
(a) Conflict is when people are involved in a fight with each other
(b) Conflict is characterized by war
(c) Conflict is a disagreement between two or more people
(d) Conflict means having different points of view
All these definitions are right in one way or the other but they also illustrate one of the most common misconceptions about what conflict really is. In normal cases, most individuals associate conflict with violence as Makumi Mwangiru, Macharia Munene and Njeri Karuru argue in their book Understanding conflict and its management.
However, violent conflict is just one type of conflicts and it is the most visible because it leads to death, injuries, loss, and destruction of property. There is a different type of conflict that is not visible. It is known as structural conflict and does not involve any physical conflict. Basically, conflicts occur when people have incompatible goals. This means that each of them believes their point of view is the correct one and tries to defend it through whatever means.
IDENTIFYING A CONFLICT
In order for us to manage a conflict, there is a need to identify the conflict and so must the media. Once the conflict has been identified, then it becomes exemplarily easy to understand what type of a conflict it is. This is the basis of applying whatever best method in resolving it. While it is relatively easy to identify violent conflicts, Media conflicts are usually structural types of conflicts and these types of conflicts are less easy to identify.
Normally, when we think about the kinds of relationships that exist in our society, we think of only two possible situations: peace and violence/violent conflict. Though this is not entirely wrong, there is a third part that exists, where there is no war or violence, but still there is no peace. This is simply how the media (can) operate(s). When the media is involved in a conflict, the third party – basically composed of the audience – may never tell that such a conflict is going on.
CASE STUDY OF MEDIA CONFLICTS IN KENYA
Under this section, the discussion and the content is solely based on some of the most famous cases in Kenya that have involved the media. The cases selected from within the courts are five and are all drawn from law relating to libel in Kenya. The bases of this law relating to defamation in Kenya are the Constitution, the Defamation act, the Penal Code, Common law and Doctrines of equity. The constitution guarantees freedom of the media in article 34(1) that states:
“Freedom and independence of electronic, print and all forms of media is guaranteed but does not extend to the expressions specified in article 33(2)”
Article 33(2) provides for instances when this freedom can be limited. Quoted, article 33(2) states:
“(2) The freedom of expression does not extend to
(a) Propaganda for war
(b) Incitement to violence
(c) Hate speech; or
(d) Advocacy of hatred that –
(i) Constitutes ethnic incitement, vilification of others or incitement to cause harm; and
(ii) Is based on any grounds of discrimination specified or contemplated in article 27.
In order to fight any possible conflict that might arise from the media, there is a need to understand the extent to which the freedom of the press has been abused in the past. The conflict referred to in this section can either be libel or slander. There are two key differences between the two: Libel tending to a breach of the peace is a crime, slander is a tort only. Libel is actionable per se whereas slander, subject to few exceptions is actionable only on proof of actual damage. In any case, both will automatically lead to a structural conflict.
In order to avert the conflicts, the Universal Declaration of Human Rights of 1948 contains elaborate provisions on freedom of expression from which the freedom of the press derives. It provides inter alia that:
“Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
CONFLICTS AND THE JUDICIAL PROCESS: LIBEL AND JUDICIAL ACTIVITY
This section will be based on how structural conflicts that have been termed as libel have been dealt with by the court of law. The structure of this section will therefore show how such cases have been settled and how they can be settled if the laws followed transformed or qualifies to be precedent laws. In essence, the practicality of conflicts resolution here is based on examples of disputes involving the media that have been settled through the courts.
(a) Kitto Vs Chadwick and another
The case aforementioned arose from Uganda, the appellant claimed that he had been libeled by three letters written by the respondents. All were published on the occasion of qualified privilege, but malice was pleaded. One letter made detailed allegations against the appellant and no attempt was made to justify the allegations.
The court of appeal made an award of Ksh 50,000 as damages for libel in respect of each of the letters went further and held that the allegations made were false and in absence of any attempt to show some belief of truth of the allegations, malice was established. The court further held inter alia that; “…these were all very serious allegations to make against a professional man.”
(b) George Oraro Vs Wangethi Mwangi and Nation Newspapers Ltd
The plaintiff’s case against the defendants was based on libel contained in the words of an article of the Daily Nation newspaper. The plaintiff complained that the defendant falsely and maliciously printed and published concerning the plaintiff in the way of his profession and calling of an advocate with the words; “ Mr. Mbajah says that Mr. Oraro and Mr. Onyango were principal participants in the murder of Dr. Ouko.”
The plaintiff brought an application seeking orders that the defendant’s defence be struck out as being scandalous, frivolous and vexatious.
The defendant claimed qualified privilege as a defence but the court held inter alia that; “…it is the law that there is no duty on a newspaper to misinform the public. In such circumstances no qualified privilege can be pleaded as a defence.”
The court held that the words complained of were an invention of the defendant and were to impute murderous intent on the plaintiff. They were false and defamatory. The court struck out the defence and entered judgement in the favour of the plaintiff as prayed.
(c) Kipyator Nicholas Kiprono Biwott Vs Dr. Ian West and another
The plaintiff, a former Member of Parliament in Kenya and a senior Minister in the government at that time, sued the defendant for libel alleging that the defendants had published in their book entitled “Dr. Ian west’s case book” words which were defamatory of plaintiff. It was contended on behalf of the plaintiff that the said words in the natural and ordinary meaning were calculated to mean, and did mean, that the plaintiff killed or participated in the killing of Kenya’s former foreign affairs minister, dr. Robert Ouko.
The plaintiff testified that the circulation of the book had damaged his reputation both locally and internationally by portraying him as a murderer and a most corrupt person.
An interlocutory judgement was entered against the defendants as no defence was filed on their behalf. The court held that the damages in libel actions are awarded to compensate the plaintiff for injury to his reputation and the hurt to his feelings.
The court further held the assessment of the damages in libel actions was a complex matter. This is so because in doing so, the law is attempting to put monetary value on something which can be neither evaluated in money forms nor fully compensated for by a monetary award. The court also held that, the award must cover “(injured feelings) the anxiety and uncertainty undergone in the litigation, the absence of apology or the re-affirmation of the truth of the matters complained of or the malice of the defendant.” The court then awarded him Ksh 30 million as damages (this was the highest compensation ever made in Kenyan courts for the tort of libel).
The court was of the view that the fact that such an award had not been made before did not mean that it could not be made at the time or whenever appropriate circumstances present themselves, Commissioner of Assize (now Judge Visram) said;
“… I believe that time is propitious to send a clear message to all those who libel others with impunity, and who get away with ridiculously small awards, that the courts of law will no longer condone their mischief. No person should be allowed to sell another person’s reputation for profit where such a person has calculated that his profit in so doing will greatly outweigh the damages at risk.” (Emphasis supplied)
The gravamen of the emerging Kenyan jurisprudence on media conflicts is that every constitutional right must be enjoyed with due regard to the right of others. The law should not spare any false and malicious publications which are deemed injurious to the reputations of others. The law is designed and should be designed to protect the individuals who may fall prey to the fangs of the press and any individual(s) who derive profit from brewing conflicts.
The only sure justification about evading these conflicts and avoiding paying for such huge damages is by knowing that constitutionally conferred rights or indeed any rights are not absolute and must be exercised with due regard to the rights of others. The constitution expressly provides that nothing contained or done under the authority of any law shall be held to be inconsistent with it as regards freedom of expression, if it is done or contained in pursuance of among other things, the protection of reputation of others.
it is evident that media can be a source of conflicts between individuals or between governments. In order to avert such conflicts, the media must draw its operations from media ethics and the laws of a country and those that have been set as standard rules for media. More importantly, the media industry must be objective enough to learn on how to effectively handle cases especially when faced by a court case.
Being a very powerful tool, the media must stop crying over the quantum of damages awarded to individuals in cases of defamation or related cases but concentrate at maintaining sanity and objectivity in its endeavors. It must therefore deal with the structural conflict with so much care so as to avoid harming the public.
The Constitution of Kenya
Mwangiru, M. et al. (1998). Understanding Conflicts and Its Management (ccr-wlea series no.2); Centre for Conflict Research and Women and Law in East Africa (Kenya): Nairobi.
Proceedings from Workshop on Truth And Propaganda, held on 20th and 21st September, 2001 at the Strathmore College.
Stiftung E. F. and African Women and Child Feature Services. (1998). Parliamentary Reporting: A Handbook for Journalists; Freidrich-Ebert-Stiftung and African Women and Child Features Services: Nairobi.