The huge financial awards could potentially limit the ability of the media to exercise their traditional roles as watchdogs.
By Tonny Raymond Kirabira
Several high-profile Ugandans are embroiled in defamation cases against journalists and media houses. Often times, these are concluded with multimillion shilling awards against the publishers. Most notably, the highest beneficiaries of the court awards include members of the Judiciary, Executive and Parliament.
Recently, Supreme Court judge Esther Kitimbo Kisaakye filed a lawsuit seeking damages (compensation) against retired Supreme Court judge George William Kanyeihamba in relation to a book that he published.
This is only an escalation of a growing trend of multimillion cases in defamation. An analysis of the jurisprudence reveals a host of cases, where high-level public servants have been awarded huge sums in damages and other injunctive awards, against media houses and private individuals.
More recently, Kahinda Otafiire was awarded sh200m in a lawsuit against New Vision Printing and Publishing Company Limited, which also involved former deputy Attorney General Mwesigwa Rukutana as a witness. According to the court, Hon. Otafiire deserved the huge sum of money given his personality as a retired UPDF General, a Cabinet minister and Minister of Justice and Constitutional Affairs, among other factors.
A historical analysis of the cases suggests an increasing legal liability for publishers. Former High Court Judge Sempa Lugayizi successfully sued Teddy Ssezi-Cheeye in 2003, while former principal judge Ntagoba Herbert was awarded sh30m in a case against New Vision.
In 2012, court awarded Justice Peter Onega general damages worth sh20m, while former Chief Justice Samuel William Wako Wambuzi was awarded over sh400m in a case of defamation against Red Pepper Publications in 2017. In the same year, Supreme Court judge Esther Kitimbo Kisaakye was awarded sh25m.
Besides judges, Members of Parliament often sue media houses in relation to stories, where they are claiming huge sums in damages. In 2016, the High Court directed the Red Pepper Publications to pay the Speaker of Parliament Rebecca Kadaga, sh120m in damages for defamation. In December 2019, the High Court awarded Bugweri County MP Abdul Katuntu sh90m in a case against the same publication.
The focus of this article is not to delve into the facts or merits of the cases, but the impact created by this incredible litigation, moreover by people exercising pubic functions. Firstly, the huge financial awards could potentially limit the ability of media to exercise their traditional roles as watchdogs.
Apart from the high costs incurred in legal fees, most media houses do not have the finances to pay the excessive amounts decreed in court awards. Due to the fear of litigation, stories relating to public accountability are often shelved by editors.
Secondly, there is no consistency by judicial officers when making awards in such cases, often referring to the social profile of the claimants. As a result, lawyers often justify their arguments on the basis of previous court awards, referred to as precedent. The judges are then faced with the difficult, yet the discretionary task of contrasting the different cases, to make appropriate awards.
In the case of Rebecca Kadaga against Red Pepper Publications, the court held that; "the Plaintiff, being a third-ranking citizen of this country an award of sh80m is appropriate as general damages to compensate her for the damage caused to her reputation".
Besides the members of the three arms of government, other high-profile people are drawn into defamation cases, where courts refer to previous awards. In 2018, Dr Wandira Kazibwe was awarded over sh200m against the Independent Publications, while Toro Queen Mother Best Kemigisa was awarded sh83m against Red Pepper Publications in March 2020.
Theoretically, defamation is the act of harming the reputation of another by making a statement to a third person, through the publication of false and defamatory statements concerning another person without justification, according to Black's Law Dictionary. The test used to determine whether a statement is capable of giving defamatory meaning is whether the words tend to lower the person in the estimation of the right-thinking members of society. There is no specific law or code which provides for defamation within Ugandan laws. As a result, judges rely on persuasive precedents and textbooks from countries with similar common law, like the UK.
However, in any fair, just, and independent legal system, the courts critically balance the claimants' interests against public interest in the publications, before making awards in defamation cases. The threshold is even higher for people that work in public interest positions. For example, in the UK, the Defamation Act of 2013 significantly changed the law by introducing an "additional test" to people who sue for defamation. This means that they must produce evidence that actual serious harm has been caused to their reputation.
In line with these developments, judges need to be more cautious when adjudicating defamation cases involving fellow judges, or members from the other arms of government. In his Commentaries on Law, Politics and Governance, published by Law Africa Publishing Ltd 2010, former Supreme Court judge George W. Kanyeihamba affirms the role of courts to function impartially. He asserts that "they must treat all parties, be they individuals, organizations, government or the state, equally".
Otherwise, the chain of court cases by judges and other public servants against media presents a worrisome dimension in Uganda's defamation law. We are likely to see more everyday Ugandans like bloggers and social media publishers getting caught in defamation cases.
The writer is an advocate and legal researcher