By Walter Khobe
Sir Francis Bacon, then Lord Chancellor, wrote in 1625 that Judges Must be Lions. This was an exhortation that judges should not be too subservient to the other arms of government but should hold them accountable to the rule of law – they should avoid being ‘squeaking mice under a chair’. In the contrast between lion and mice, Justice John Muting’a Mativo deservedly earns accolade as a lion given the path-breaking judgments he has rendered since his transfer to the Constitutional and Human Rights Division of the High Court. Within this short period, he has already imprinted his stamp on Kenya’s jurisprudence. It cannot be disputed that the roar from his judgments echoes for miles. His judgments on criminal defamation and Daadab refugee camp closure have received praise in far-flung places like Australia, India, South Africa, Europe and the United States.
It is noteworthy that some of those who have praised these judgments on social media (twitter) include some of the leading constitutional and human rights theorists in the world like the distinguished scholars Cheryl Saunders, Christina Murray, and Colm O’Cinneide.
If the inspired judgments he has handed down in the short time he has sat at the Constitutional and Human Rights Division of the High Court is representative of the jurisprudence Kenyans should expect from him, then it is just a matter of time before he joins the ranks of serving judges who are receiving rave reviews from constitutional theorists around the globe for enlightened path-breaking judgments. This group of enlightened judges has the likes of Justices Edwin Cameron of South Africa and Oagile Key Dingake of Botswana. It should be recalled that way back in 1970, George H. Gadbois, Jr. in ‘Indian Judicial Behaviour’ categorised judges into four groups: Modern Liberal, Modern Conservative, Classical liberal, and Classical Conservative. This how Gadbois characterised the features of these groups:
“Modern Liberal: one whose voting behaviour reflects an antipathy towards deprivations of civil liberties, but approval of regulation of the economy.
Modern Conservative: opposite the modern liberals, these are the judges who condone restrictions on civil liberties, but who indicate opposition to economic regulations.
Classical Liberal: one whose voting behaviour corresponds to the belief in freedom of the individual in both his personal and his property rights. A century ago, these judges would have been counted among the contemporary liberals for, it will be recalled, leading liberals of the mid-nineteenth century (John Stuart Mill and Herbert Spencer, for example) rejected governmental interference with the economy no less than infringements upon civil liberties. The modern liberal shares with his ideological forebears an anathema towards sub-traction from civil freedoms, but he has come to look with favour upon governmental intrusions into the economy largely because of the pro-economic underdog character of, for example, land reform, business regulation, and the income tax. Those who demonstrate a pervasive opposition to the exercise of governmental authority, whom we are designating as classical liberals, are sometimes called simply “Libertarians” or individualists.
Classical Conservative: directly opposite the classical liberals, these are the judges whose voting behaviour suggests a predisposition to accept governmental restrictions of both personal and economic freedoms. When conflicting claims of freedom and authority are raised for resolution by the Court, these judges incline towards upholding the authority of the Government.”
Justice Mativo can be classified as a “Modern Liberal” in his jurisprudential philosophy. He follows in the legendary tradition of revered Justices Thurgood Marshall, Arthur Chaskalson, Praful N. Bhagwati, Manuel José Cepeda Espinosa, Enoch Dumbutshena and Kenya’s Frank Shields.
For his biographical sketch, Justice Mativo holds a Master of Laws and Bachelor of Laws degrees from the University of Nairobi and a Diploma in Law from Kenya School of Law. He was admitted to the Bar in 1986. Justice Muting’a practised as an advocate for 28 years with D. Njogu and Company Advocates in 1986, Mativo Kitulu and Company Advocates between 1989 and 1999 before joining Mativo and Company Advocates, 1999 as a partner. Until his appointment as judge of the High Court, Justice Muting’a was working with Mativo and Company Advocates. He was appointed as a judge of the High Court in 2015. Upon appointment, he was posted to Nyeri Law Court. Come January 2017, he was transferred to the Constitutional and Human Rights Division of the High Court-Nairobi.
Justice Mativo’s Emancipatory Jurisprudence
The adoption of the 2010 Constitution marked an attempt by Kenyans to transform their state and society along egalitarian and democratic pathway. As Said Amir Arjomand has pointed out in ‘Constitutions and the Struggle for Political Order: A Study in the Modernization of Political Traditions’, the adoption of transformative constitutions has seen the advent of a new constitutional genre, whose central goal is not to limit government but to transform the society. (See also Julian Go ‘A Globalizing Constitutionalism? Views from the Postcolony, 1945-2000’) The adoption of a transformative constitution demands the development of transformative jurisprudence. Justice Mativo has had occasion to render decisions in diverse areas of the law and a sample of his contribution to Kenya’s transformative jurisprudence follows in this commentary.
Criminal defamation laws violates the right to freedom of expression
The locus classicus on the centrality of freedom of expression in political theory is John Stuart Mill’s On Liberty where Mill expressed the idea that: “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” Similar concerns inform the explicit recognition of freedom of expression in the 2010 Constitution. Kenyans made an important choice. Having struggled so long against a repressive government, they decided that “never again” will state power be used to crush free thought, open discussion, and civil rights. Having regard to Kenya’s authoritarian past with one of the hallmarks of that era being thought control, censorship and enforced conformity to governmental theories it is important for courts to be astute to outlaw any form of thought control, however respectably dressed. Towards this end, in Jacqueline Okuta &Another v Attorney General & 2 Others, Petition 397 of 2016 Justice Mativo held that criminal defamation was not saved by Article 24 of the Constitution, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed).
On the question whether criminalising defamation was a proportionate method of protecting the rights of others, he held that it was not. To start with, the judge observed: “Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” Within this framework, the judge held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.”
On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.”
While, admittedly, these problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to Justice Mativo: “The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.”
Additionally: “The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.”
Furthermore, if proportionality in limitation of rights analysis was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. Justice Mativo held: “I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights, and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.”
Finding that this view was also in accord with international domestic comparative practice as well as the decisions of supra national human rights bodies and courts, Justice Mativo struck down criminal defamation law……….READ FULL ARTICLE ON YOUR COPY OF THE MARCH 2017 EDITION