Presidential hatin'

Gathara and Githongo are entitled to their own opinions however warped they may be, but they are not entitled to hate speech and images at the expense of others’ reputation and good standing in society.

There should be hell to pay for Gathara’s Frankenstein’s monster and other nefarious portrayals of Uhuru in the Star.

Too many of their images and words about the President border on defamation. 

These are the words of Njeri Thorne. I have highlighted "hate speech and images at the expense of others' reputation and good standing in society" and "defamation." First things first; there is no such thing as "hate speech and images at the expense of others' reputation and good standing in society" but assuming the first part of the accusation, "hate speech," is the main point of the remarkable diatribe, its definition according to section 13(1) of the National Cohesion and Integration Act, 2008, is

A person who...publishes or distributes written material...which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.

The intention of the "hate speech" clause of the National Cohesion and Integration Act, 2008, is to prevent the stirring up of "ethnic hatred." An examination of Mr Gathara's cartoons and Mr Githongo's Op-Eds does not reveal an intention to stir up ethnic hatred, unless President Kenyatta has become an ethnicity of one. Messrs. Gathara and Githongo are simply not very impressed by President Kenyatta and they have exercised their Article 33 rights to prove their point. They are not the only ones either.

Ms Thorne is on firmer ground when she alleges defamation against President Kenyatta. On this I quote one of my seniors when he states,

Those public officials who have gone to court, or will go to court, seeking damages for defamation where they feel their characters have been adversely affected must contend with at least three things that find basis in our Constitution and in principles in a democracy: the constitutional freedom of the individual to express himself or herself, the right of the public to impart or receive information (especially in the public interest), and the individual’s own right not to be defamed (see Article 33 of the Constitution).

Two cases that have been referred to in many jurisdictions when it comes to defamation of a public figure (although they are not binding to courts in Kenya but are merely persuasive): THE NEW YORK TIMES v. SULLIVAN 376 U.S 254 (1964) and REYNOLDS v. TIMES NEWSPAPER LIMITED (2001) 2 A.C. 127.

In the SULLIVAN CASE, it was observed that “The Constitutional privilege extended to the press and to any public medium requires a differentiation between private individuals on the one hand, and public officials and figures on the other. Statements made about public officials and public figures especially when made by a public medium generally relate to matters of general public interest and are made about people that have substantial influence and impact on the lives of other people. Moreover, public officials and public figures generally have some access to public medium for answering disparaging falsehoods whereas private individuals do not have ready access to a medium reaching the recipients of private defamatory communications. The category of public officials includes not only those who are commonly classified as public officers but also public employees who exercise any substantial governmental power.”

According to the Sullivan decision, a public figure who files suit on defamation must prove express malice before he or succeeds. The rationale is that public figures should not hide under the law of defamation to stifle people from expressing freely on matters of public importance.

President Kenyatta is not a powerless babe-in-the woods. He has the wherewithal and the facilities to respond to Mr Gathara's cartoons and Mr Githongo's Op-Eds. Which is why when Ms Thorne demands, "There should be hell to pay for Gathara’s Frankenstein’s monster and other nefarious portrayals of Uhuru in the Star" we must be worried. In the absence of a constitutional prohibition on being mean to the President and the availability of an opportunity for the President to respond, does Ms Thorne suggest some alternative form of redress or punishment?

There is a sizable constituency that disagrees with both the tenor of Mr Githongo's anti-Uhuru cartoons and the one-note obsessiveness of the Githongo Op-Eds; they have been given ample opportunity, as was Ms Thorne in the Right of Reply by The Star, to respond to both Messrs. Gathara and Githongo. In a democracy, that is as it should be. President Kenyatta is not a private citizen; if he had wanted not to be caricatured as a Frankenstein's monster, he should never have entered elective politics. Ms Thorne is described by The Star as a "political communications analyst." I hope she understands that calling for extra-legal sanctions for presidential mockery is what the thin-skinned East European despots are known for. The Kenya of the post-2010 Referendum is not Vladimir Putin's I-will-kill-you-with-polonium-if-you-mock-me Russia.