A question of evidence: when excitable whistle-blowers mess up

Balancing public and private interests in whistle-blowing

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John Githongo. He was fined Sh27 million for defamation.

By NLM Team

On May 2, 2019, the High Court in Nairobi in ‘Civil Suit 446 of 2016: Christopher Ndarathi Murungaru v John Githongo [2019] eKLR’ ordered John Githongo to pay Chris Murungaru Sh20 million in general damages, Sh5 million in exemplary damages, and Sh2 million in special damages, Sh27 million in total. The anti-graft czar was also ordered to pay full interest on the award until the petitioner receives all his money, as well as bear the costs of the suit.

This ruling stemmed from a defamation suit filed by Murungaru on April 28, 2016 claiming that between 2005 and 2006, Githongo, then Principal Secretary in charge of Ethics and Governance in the office of the President, “…published or caused to be published a report and or statement which was referred to by the Print and electronic media as ‘The Githongo Dossier’”, ostensibly addressed to retired President Mwai Kibaki. In the dossier, Githongo paints Murungaru as an extremely corrupt individual who leveraged his position in government and close proximity to the Presidency to influence the Anglo-leasing transactions in his pecuniary favour. 

Murungaru averred that Githongo circulated this report, which was serialized verbatim by all the print media in Kenya and posted on the Internet in their respective websites for worldwide circulation. He also gave interviews to broadcasting stations such as British Broadcasting Corporation (BBC) as well as lectures in many parts of the world thus repeating the publication of the offensive words and statements. This resulted in the publication of a book in 2009, ‘It’s our turn to eat: the story of a Kenyan Whistle blower’, by Michela Wrong, which drew heavily from the ‘Githongo Dossier’. The cover illustration came with a portrait of the petitioner in the background of a Sh1000 note, symbolizing his alleged “eating” from public coffers. In a nutshell, Murungaru submitted, through his actions and by forwarding a letter to President Kibaki, Githongo “depicted Murungaru as the high priest of graft and the fulcrum on which Anglo-leasing contracts rotated.”

The court, in its findings, found that indeed Githongo did “author and cause defamatory information to be published about the petitioner. Justice Joseph Sergon held that there did not exist any “factual basis to assert that Murungaru was engaged in corruption,” that he acted outside his core mandate of advising the President on policy on fighting corruption, and was personally liable for his actions.

The ruling against Githongo is one that must awaken us and provide a valuable lesson on propaganda. While whistle-blowers enjoy legal protection such protection cannot be invoked when one knowingly acts against the ethics of whistle-blowing. In the present instance, it became apparent to the court that Githongo personally fed Wrong the content she used to write and publish her book, and even proofread and approved it for publication.

Githongo also did media interviews where he made comments about Murungaru – this is what, cost him the defence of qualified privilege and public interest. In other words, the court found Githongo to have been a man on a mission rather than a genuine whistle-blower interested in justice. 

Corruption, and the ostensible war on the vice, is a high stakes that, by its own nature, leaves casualties – deserving and undeserving – in its wake. In this seemingly unending war, we continue to witnessing the same kind of antics, not just by whistle-blowers but also by defence and prosecution teams who stoke passions by taking active court matters to the public gallery. Passions aside, the ruling is welcome jurisprudence and a rock in the sling of legal precedents against the use of innuendo and propaganda to push certain agenda.

‘Murungaru v Githongo’ pitted a disgraced former powerful minister in the Kibaki regime – seen as the face of State House cabals – and, for all intents, a messianic whistle-blower seen to be championing the public interest. But this is where the comparison ends. In an indefensible case of double speak and search for personal aggrandizement, Githongo leaked some very crucial documents to the media with the sole aim of painting Murungaru black. In the protracted war for power, and with Githongo alive to the fact that there was zero chance that the evidence would have consumed the Minister for Internal Security, he chose the rather unorthodox avenue of leaking documents and pushing for the publication of a shallow book wanting for facts.

Scholars and observers continue to debate on whether the Githongo Dossier qualifies as a privileged document, particularly after leaking it to media. According to lawyer Javas Bigambo, “one cannot hide behind privilege if the information being peddled is incorrect and untrue. In fact, civil servants, even State House-based PSs who interact with the president daily, do not have that privilege. As far as I know, privilege is reserved for lawyers, doctors and legislators within the precincts of Parliament.”

That there is no mention of a constitutional provision is a valid concern. It does not, however, render the judgment ‘outrageous’, neither does it (the ruling) fail the ‘constitutional test’.”

In any event, Bigambo argues, even the recording Githongo submitted as evidence of Murungaru’s guilt do not pass the admissibility test on two fronts: one, they are inaudible and therefore useless; two, they were illegally made or obtained. This is the reason Wikileaks Founder Julian Assange is in trouble with the US government despite claiming privilege and public interest – the US State Department submits that Assange handled information way above his pay grade so that, even if he were to argue the defence for whistle blowing it would not hold.

Similarly, Githongo, in his capacity as PS and revelling in his informal role as chief spy master, recording privileged conversations with seniors and distributed one-sided innuendo to media houses and interviewed with local and international media. Through his own fault, Githongo unwittingly cast himself as the archetypal  example of a corruption apologist who oftentimes chooses to fight sensitive wars in the columns of newspapers rather than litigate these cases in courts of law for issuance of binding judgments. 

In a bid to cripple the ensuing embarrassment, Githongo has insisted that he will appeal Justice Sergon’s decision. The irony here is that it is Githongo who is crying wolf in spite of the fact that he is author of his ‘dossier.’ While he has the right to appeal the Court’s decision, he surely must also be familiar with the principle that appeals are anchored only as matters of law, not fact. He cannot hope to cure the defective facts in the defamation suit against him.

Now, while many may view this case as a setback in the fight against corruption, they must also appreciate the fact that it is also a shot in the arm in the war against defamation. That a man of Githongo’s stature could have been allowed to get way with so much spewed bile for such long time is something to be pondered. 

And when we are done celebrating the court’s decision, we must take a step back and ask why such a straightforward matter took 13 years – and several judges – to settle. At the very least, it is an indictment of the Judiciary’s lukewarm approach to addressing and fighting impunity.

Reflection

The plunder of public resources has accelerated to unprecedented levels and the ruling also offers Kenyans a chance to rethink graft-fighting strategy. The current crop of anti-graft crusaders are engaged in an all-out social media-propelled war that is centred around spewing vulgar epithets online that do little to nothing by way of fighting impunity to the war. Often, netizens author long, winding, unimaginative and superficial views that neither capture the facts nor have regard to the sound principles of law that are central to this war. They can never confront their alleged suspects for they lack the grit to conduct tangible investigations or engage in helpful fact-finding to unravel the truth; at best, their exercise merely qualifies as reactionary opinions of a fatigued, disillusioned populace.

This editorial is not meant to pour cold water on the fight against graft but to re-engineer the public’s thoughts towards our seemingly failing methods of combating graft, for it is a war the country cannot hope to win using the methods it currently employs. 

The awarding of the hefty fine against Githongo seeks to send a clear message to those who might be inclined to report corruption or wrongdoing within government: to undertake it with the benefit of irrefutable evidence and fact, not on the basis of rumour and innuendo.

The case has and will continue to elicit diverse opinion and reactions from civil society, with which Githongo identifies, and legal practitioners at large. Author Rasna Warahhighlights the concerns of some by asking whether court decisions are being made without due reference to constitutionally-protected rights and freedoms, and whether Kenya’s judiciary has been “captured” by the State. She cautions – understandably so – that the case might be used as a tool to instil fear on would-be whistle-blowers.

But, far from it, and contrary to the opinion of a raft of activists, this case was not about isolating Githongo and exposing him financially. More than anything, it was about tracking down the need to rein in on anti-graft crusaders who seek to malign suspects names without tangible evidence to adduce.

Criticism

In regard to the amount, suffice it to say that he who commits a crime must be willing to do the time. The amount of loss, physical and psychological, occasioned to Murungaru both as a former state officer and as a private citizen, including loss of travel visas to several countries, subsequent unseating from his Kieni parliamentary seat as well as the loss of his powerful ministerial position in the Kibaki government, warrants it. 

That there is no mention of a constitutional provision is, rightly, a valid concern as raised by lawyer Wachira Maina. It does not, however, render the judgment ‘outrageous’, neither does it (the ruling) fail the ‘constitutional test’. Justice Sergon was not only expected to apply the constitution but also to interpret the law accordingly to uphold the rights of Murungaru to dignity.

Core issue

Importantly, the core issue in the ‘Murungaru v Githongo’ seems to be the place of public over private interest in the publication of the Githongo Dossier in 2006, and it’s documentation in Wrong’s book. Even though the public had a right to know about the people and events that constituted the Anglo Leasing scandal, it is the mode of dissemination of information and the authenticity thereof that was in contest. Public interest cannot be invoked at the expense of an individual’s right to privacy and dignity. 

In exercising its power, Justice Sergon invoked the court’s inherent power to make decisions and chose to protect Murungaru’s dignity while at the same time balancing the need for public interest. His judgment justly questions the authenticity of the information in the dossier as it fails to link Murungaru to any of the corrupt practices he is accused of. The lack of evidence in the contents of the dossier to establish their veracity or justify Githongo’s claims is defamation as the court rightly found.

In sum, the consequences of the present decision will reverberate wide and far. Freedom of expression is a powerful tool, one that can bring down cartels and corruption networks. But there must be evidence to back the talk. This judgment serves as the perfect wake up call to the legislature to finally properly debate and strengthen whistle-blower protection policy to remove ambiguities about privilege, as well as deter any such future cases.  

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