They are being used to silence those who expose corruption and abuse of office 

The rise of Strategic Lawsuits Against Public Participation (SLAPP suit) in Kenya is becoming a worrying trend despite the existence of the constitution and other laws that promote freedom of expression and media.

For a long time, SLAPP has been an enabler of suppressing freedom of expression and that of the media, parliament, judiciary, and human rights institutions that ought to work together to promote democracy, transparency, and accountability.

The motive behind SLAPP is to deter citizens from exercising their political rights or punish them for doing so. SLAPP sends a clear message that there is a price for speaking out politically. The price is a multimillion-shilling lawsuit and the expenses, lost resources, and emotional stress such litigation brings. 

SLAPPs negatively impact the country’s internal environment and the rule of law because they limit the scrutiny of issues of public interest, whether they are of economic or political relevance. Although there are many different reasons for a SLAPP complaint, defamation is the most common litigation of SLAPP.

Historically

Before the promulgation of the 2010 Kenyan Constitution, incumbent governments were uneasy with the media houses, journalists, civil society groups, and individuals who had been critical of them. Then, the government’s response to such was bans, suspensions of publications and stories, and arrests coupled with prosecution. 

However, since the return of the multiparty system in 1991, the practice of using defamation lawsuits to control a rogue press, and critical individuals gained ground. The media has been viewed as less sensational in articulating issues after promulgating the Constitution. 

This could be attributed to fear of potential repercussions in the event of misrepresentation of facts. The sources of information could also be reluctant to give information due to tracking people. Strategic litigation has been central to global human rights activism for decades at domestic and international courts.

Despite robust constitutional and legal frameworks, media actors, alongside public-spirited citizens and civil society organisations, have faced challenges from various orders issued by courts and punitive costs when exercising their freedom of expression through the various defamation or libel suits filed by individuals and corporations seeking to stop the public from receiving information.  

Findings

According to a report launched and disseminated by Mzalendo Trust titled “The Effects of Strategic Lawsuits Against Public Participation (SLAPP) on Freedom of Expression and Citizen Participation in Public Dialogue in Kenya”, the defamation suits are shrinking and threatening the freedom of expression space, as they are silencing those who expose corruption and abuse of office.  

The findings reveal that, often, the direct impact of defamation suits on individuals affected is untold. But the cost to their mental health, social interaction and economic opportunities are heavily influenced.

Those interviewed reported experiencing panic attacks, anxiety, feelings of distress and loss of jobs. Some have sought professional counselling, and others find solace in their children, family, and friends. 

Recommendations  

Media Council of Kenya (MCK), Media Houses, and Owners

They should train media professionals on defamation and the Code of Ethics for the practice of journalism to enable them to avoid defamatory content and also ensure they have evidence for defence when sued.

There is a need to develop mechanisms and procedures to safeguard media professionals and human rights defenders. The mechanisms should be appropriate and free from manipulation. They should also collaborate with parliament to create laws that advance the freedom of media and protect media professionals from unnecessary defamation suits and excessive damages. 

In addition, they should engage with the judiciary to establish procedures for filing defamation suits to eliminate frivolous charges against media professionals and media houses, and create proper structures for defamation cases, including covering the media professionals’ legal costs. 

Judiciary

The report recommends a review of all laws regulating freedom of media and freedom of expression to remove provisions that defy the spirit of the Constitution. It further recommends that refresher courses for judicial officers and access to justice stakeholders on defamation laws will enable them to deal more effectively with cases brought against media professionals and human rights defenders. These would include conferences, colloquiums, and Continuous Professional Development (CPDs) under the auspices of the Judiciary Training Institute and the Kenya School of Law (KSL). 

Parliament

The report recommends the review of all laws relating to freedom of expression and the media to ensure they align with the Constitution. The legislator should also define more effective policies and procedures for detecting and penalising frivolous defamation claims. 

Additionally, legislative amendments and policy formulations, particularly anti-SLAPP legislation, are essential for combating unjustifiable cases that stifle public participation and free speech. Parliament should also establish a pro bono legal representation system to assist individuals targeted by SLAPP lawsuits.  

Human Rights Organisations

The report calls upon human rights organisations to reinforce the call to end frivolous charges meant to silence individuals for speaking against societal injustices and ills. This should be done in partnership with journalists, news organisations, and researchers to monitor and report human rights violations. 

It further calls for awareness raising and educating the public on the importance of freedom of expression and freedom of the media. “They should join hands with unions, media organisations, and the Law Society of Kenya (LSK) to tackle SLAPP issues in a more visible and coordinated way.”

Additionally, more attention and support to Women Human Rights Defenders (WHRDs) and journalists affected by SLAPPs. “Initiate a study or review existing studies focusing on the SLAPP cases at the timing, contexts, and trends and understanding the rulings and judgments taken.”

The organisations should ensure comprehensive sensitisation programmes are implemented to educate politicians and businesspeople about the appropriate procedures to follow when facing grievances. Emphasis should be placed on distinguishing between civil and criminal cases, ensuring that disputes are handled through the proper legal channels. 

In addition, they should promote the development of communication strategies targeting individuals who are considering or have opted for SLAPP suits. These strategies should aim to educate and inform these individuals about the negative impacts of SLAPP suits on freedom of speech, public participation, and democratic processes.

The report further states that there is a need to diversify the risk faced by public-spirited individuals who may be vulnerable to SLAPP by encouraging them to form coalitions or alliances with like-minded individuals, organisations, and communities to collectively advocate for common causes and share the burden of legal risks.