Showing posts with label Kenya. Show all posts
Showing posts with label Kenya. Show all posts

Sunday, January 10, 2021

What goes around comes around: U.S. election cycle, Capitol riot draw 'banana republic' gibes

Seth Doane has an excellent piece out today (Facebook, YouTube, and embed below) on foreign perspectives on the Capitol riot, insurrection, whatever: rebellion to be named later.  The story mentions the Kenyan headline, "Who's the banana republic now?"  I wish only to add that it's not the first time for such cheekiness, recalling Colombia's Publimetro cover from November 6 (Guardian).  I've no doubt that there are plenty of "s***hole" gibes going on in Africa, too.

Publimetro, Nov. 6, 2020, via Pressreader (Colombia); Nation, Jan. 8, 2021, via Internet Archive (Kenya).


"What They See," CBS Sunday Morning, Jan. 10, 2021, via YouTube.

Thursday, January 31, 2019

Research examines accountability through journalism and right to information in India

I've published a research article (available on SSRN), "Accountability in the Private Sector: African Ambition for Right to Information in India," in the latest volume (25:3) of the Panjab University Research Journal Social Sciences.  Here is the abstract:

The right to information (RTI) has come to recognition as a human right in international law. Conventionally, RTI is a means for a person to demand information from a public body. RTI has proven especially potent in the hands of journalists, who seek information on behalf of the electorate to hold public institutions accountable. But in the recent decades in which RTI has attained human rights stature, power in society has shifted in substantial measure from public to private sector. Journalistic inquiry is frustrated by the inapplicability of access laws to private bodies. In India, direct access to the private sector through RTI law was considered and rejected in the 1990s; however, the 2005 RTI Act allows a generous measure of access to non-governmental actors with public ties. A legal movement has been gaining steam in Africa to push past the public-private divide and recognise the importance of RTI to protect human rights regardless of the public or private character of the respondent. Different approaches are emerging with respect to journalist access in the African model. Amid trending privatisation and burgeoning private power, the time might be coming for India to reconsider the road not taken.

The Research Journal Social Sciences is a peer-reviewed publication of Panjab University in union-administered Chandigarh, India.  Panjab is a public university on 550 acres, enrolling 17,000 students in 78 departments and 15 centers for teaching and research, including a law school.  More than 250,000 more students are enrolled in 198 constituent and affiliated colleges and centers throughout the region.  Founded in 1882, Panjab was split in the 1947 partition of India from the University of Punjab, now in Pakistan.

Dr. Verma
This issue of the journal is dedicated to development and mass communication.  I was fortunate to be invited to contribute by the special editor of the issue, Dr. Manish Verma (LinkedIn), who serves as director of international affairs and director of the School of Media at Amity University Jaipur in Rajasthan.  Dr. Verma is a Ph.D. graduate of Panjab University and an alumnus of the Executive Program in Management and Leadership in Education at Harvard University.  He's also a top-shelf colleague.

Friday, February 10, 2017

Kenya knows best: Let's not "open up" criminal libel

In one campaign-trail declaration, President Trump said he would “open up” defamation law, increasing media liability exposure.  The Trumps know a thing or two about defamation law.  Just this past week, Melania Trump favorably settled a claim against a blogger who had written that she worked as an escort.

With President Trump continuing to denounce “dishonest” media, there has been much hand-wringing in the media defense bar over the vitality of defensive legal doctrines in civil defamation.  There has been less talk about the possibility of a criminal defamation revival.  Criminal defamation was at issue in a decision of the High Court of Kenya on February 7.  The court threw out a criminal conviction for defamation, ruling the applicable penal statute incompatible with the freedom of expression.  The decision can be downloaded from Live Law India.

Commentators have aptly pointed out that defamation law is state tort law, so the President of our federation of states has limited power to effect civil defamation reform.  But often overlooked is the possibility “to open up” criminal defamation law at both state and federal levels.  Criminal defamation imposes the threat of arrest and prosecution for the same libel or slander against a person that civil defamation means to redress.  Because the “plaintiff” in a criminal case is the state, or the people, rather than the individual claiming injury, criminal defamation is highly disproportionately invoked when the alleged victim is a public official.

Because criminal defamation implicates the power of the state to condemn spoken or written words, the First Amendment freedom of expression is powerfully implicated.  The use of criminal defamation law disproportionately to silence criticism of public officials implicates freedom of expression all the more, because core political speech is placed at risk.  For this reason, human rights law around the world strongly disfavors criminal defamation.  NGOs from the Reporters Committee for Freedom of the Press in the United States to the global Committee to Protect Journalists and International Press Institute maintain flatly that criminal defamation is irreconcilable with the freedom of expression.

The U.S. Supreme Court has not gone so far, but has extended to criminal defamation defendants the same substantial constitutional advantages that First Amendment law affords to defendants in civil actions.  Criminal defamation has been rejected in many states, whether by state constitutional ruling, statutory repeal, or just failure to prosecute.

A problem with criminal defamation at the federal level is that when the alleged victim of defamation is a high-ranking federal official—such as the President of the United States—there is only a fuzzy line between criminal defamation and sedition.  The regulation of sedition is the province of the federal government, and federal law against sedition dates back to the Congress of 1798.  Like regulation of criminal defamation, the criminalization of seditious expression is limited by the First Amendment, with standards such as the not-precisely-named “clear and present danger” doctrine.  Also like regulation of criminal defamation, the criminalization of seditious expression is not unconstitutional per se.  Fuzzy First Amendment limitations leave room for interpretation.  If criminal defamation is viewed interchangeably with sedition, based on the identity of the victim, there might be room to expand criminal prosecution of either.

The decision in Kenya is a reminder that criminal defamation is out of step with contemporary human rights norms, especially when the machinery of the state is used to protect public officials and their powerful allies.  The prosecutions in Kenya arose over a long running feud between the defendants and a complainant-lawyer.  Rightly or wrongly, the defendants impugned the integrity of the lawyer, who brought civil suit.  The defendants defied a judicial restraining order.  Ultimately the lawyer complained to police.  

The penal statute on defamation authorized imprisonment for up to two years.  Referencing the European human rights principle of proportionality, the High Court held in essence that criminal sanction is a disproportionate response to injurious expression.  Civil remedies are instead appropriate to protect reputation.  Criminal sanction, the court concluded, should be reserved for war propaganda, incitement to violence, hate speech, or advocacy of hatred based on ethnicity.  The result should not be read to condone the defendants’ conduct, nor to condemn the complainant.

Whether or not we need “to open up” defamation liability, there is a case to be made that the defense-friendly developments in U.S. defamation law in the late 20th century were excessive.  Our constitutional norms over-protect free expression, well beyond the proportionality principle, to the diminution of competing personal rights.

But the imposition of criminal sanction for speech is another matter.  Criminal defamation cases in the United States often implicate the reputations of police officers, politicians, or other persons of power or high profile, indicating that criminal defamation is a power too readily perverted to authoritarian ends.