String of multimillion shilling court awards against media houses worrying

Jun 16, 2020

Recently, Kahinda Otafiire was awarded sh200m in a lawsuit against New Vision. The suit also involved former Deputy Attorney General Mwesigwa Rukutana as his witness.

OPINION

Several high-level public Ugandans are embroiled in defamation cases against journalists and media houses. Often times, these are concluded with multi-million shilling awards against the publishers. Most notably, the highest beneficiaries of the court awards include members of the Judiciary, Executive and Parliament.

Recently, Kahinda Otafiire was awarded sh200m in a lawsuit against New Vision, which also involved former Deputy Attorney General Mwesigwa Rukutana as a witness. According to court, 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. 

This is only an escalation of a growing trend of multi-million 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.

An 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 against Red Pepper Publications in 2017.

In 2016, the High Court directed Red Pepper Publications to pay the Speaker of Parliament, Rebecca Kadaga, sh120m in damages for defamation. In December 2019, the High Court awarded 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 public 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, apart from 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 discretionary task of contrasting the different cases, to make appropriate awards.

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, organisations, 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. 

The writer is an Advocate and Legal Researcher
tonny.kirabira@myport.ac.uk

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