GAZETTE NOTICE NO. 4214

the following comment: Interestingly a former internal security minister who has been facing a legal battle over the scandal, Dr. Chris Murungaru, has alleged President Kibaki was kept informed of every step of the Anglo Leasing deal before making an about turn. (emphasis supplied) Dr. Murungaru complains that the comments made about and against him were directed at portraying him as the culprit in the Anglo- Leasing scandal and that the words of the report suggested that he had cases instituted against him by the KACC. Dr. Murungaru also complains that the words alleging that 'President Kibaki was kept informed of every step of the Anglo leasing deal before making an about turn'were at no time uttered by him. Dr. Murungaru suggested that the airing of the Anglo-Leasing item was part of an agenda against his person and is evidence of un- professional, vindictive, malicious and irresponsible journalism. In his letter to the Chairman of the Media Council, Dr. Murungaru made a demand for a retraction of the story and an appropriate apology from NTV. He further demanded an undertaking that such reporting against him will not be repeated in future. Finally Dr. Murungaru sought that action should be taken against the reporter and editor who dealt with the news item. In his letter of 3 March 2009, the Chairman of the Council requested Dr. Murungaru to reduce the complaint to a formal petition in accordance with the Rules of Procedure of the Complaints Commission of the Media council of Kenya. On 11th March 2009 Dr. Murungaru submitted Form 1 together with a CD of the footage complained of. Accordingly, on 16 March 2009, the Council wrote to Mr. Wangethi Mwangi, the Editorial Director of the Nation Media Group requesting for a response to the protest by Dr. Murungaru. A follow up of correspondence did not meet Dr. Murungaru's suggested demands culminating in Dr. Murungaru filing a petition on 11 March 2009. The formal complaint in form of a petition does not differ in any material factual manner from the contents of the letter of February 18 2009 and we need not reiterate the details. Briefly however, the petition crystallizes Dr. Murungaru's grievance to the effect that the NTV's news item was calculated to perpetuate a perception that he has been investigated and indicted for THE KENYA GAZETTE 15th April, 2011 the now famously labelled Aglo-Leasing scandal. The respondent was served with Dr. Murungaru's complaint but did not file a defence to it. After two false starts in which Dr. Murungaru appeared without his Counsel Mr. Kioko Kilukumi the hearing of this matter eventually commenced on 22nd July, 2009 under a panel consisting of Ken Nyaundi (Chairman of the Media Complaints Commission), Murej MakOchieng "and Peter Mwaura (members of the Commission). The Nation was represented by Mr. Owino. Mr. Kioko Kilukumi appeared for the complainant. The viva-voce evidence of the petitioner reiterates the grievance contained in both the letter of 18 February, 2009 and the formal complaint filed on 11 March, 2009. It is the petitioner's evidence that the news item which forms the subject of this protest was not accurate, not fair and was laced with considerable malice. The Commission had the advantage of viewing the copy of tape complained of and both counsels confirmed that it is a true copy of the alleged scandalous remarks. More importantly, both counsels confirmed that Dr. Murungaru did not utter the words ascribed to him by Mr. Robert Nagila. Dr. Murungaru served in the NARC government as a minister in charge of internal security. In that role he handled a number of security contracts amongst them the now public and much maligned Anglo- Leasing contracts. Whilst the history of the complaint is tied up with these contracts it is important to point out that the Commission is not sitting in trial of who was to blame in the obviously multi-faceted and multifarious string of indentures that have attracted much open disapproval and odium. The commission is not required to make a finding on and would in any event not be able to pronounce judgement of who was responsible for the alleged loss to the Kenyan tax payer. We are called upon to decide whether the news item aired at 9 p.m. on 5 February, 2009 was an accurate statement of facts and whether the words attributed to Dr. Murungaru were actually his own. Further, it is crucial to come to a decision as to whether the story which NTV ran would have been different if the comments of Dr. Murungaru had been sought and obtained. Was the story actuated by malice and mischief as Dr. Murungaru alleges? Dr. Murungaru's evidence shows that he has spent considerable time and energy trying to distance himself from the failings that led to the loss of public funds, if at all, in the Anglo Leasing contracts. In these attempts, Dr. Murungaru has filed cases against a number of entities both within Kenya and out of jurisdiction. Dr. Murungaru has filed cases in the Civil Division of the High Court in Nairobi, the Constitutional Division of the High Court and the Court of Appeal in Nairobi. He has also instituted petitions in the High Court of Justice, Queen's Bench Division, UK. Again the details of these cases are not entirely essential for the purposes of our decision in the matter before us except that in all the suits it is Dr. Murungaru who has petitioned the courts. In none of the cases is the complainant either an accused person or a respondent. This observation sits in line with Dr. Murungaru's snivel that while no prosecution authority has put him on the dock the media has tried and sentenced him in the Anglo- Leasing matter. It is not lost to the Commission that the picture of Dr. Murungaru used in the news item complained of showed him coming out of the High Court after attending a matter in which he had brought a challenge against the Kenya Anti-Corruption Commission's demand for him to declare his wealth. It is not a picture of Dr. Murungaru walking out of Court after attending to answer charges brought against him by any prosecution authority. Who, the Commission sought to know from counsels, is facing a legal battle? Does the reference apply to a party who is, so to speak, on the receiving end or may it also apply to a party who has instituted the trial? Dr. Murungaru suggests that the footage used to show him outside a courtroom was meant to suggest that he was in court as a culprit, an offender, a wrong doer and yet he had attended court to protect his lawful interests. In x-exam by Mr. Owino for the respondent, Dr. Murungaru stated that Mr. Nagila had 'put words in my mouth' reflecting perhaps on his evidence in chief that the words used by Mr. Nagila were not spoken by him. In good measure, Mr. Owino sought to get out a pound of flesh in Dr. Murungaru's refusal to answer a question as to whether the word Kenya Anti-Corruption Commission is used in the footage complained of. In his final submissions Mr. Owino made out an observation that because the complainant had declined to answer his question there would have been no need to seek his response to the Nagila story because he would have similarly refused to answer. I do not share this view. Under section 27 (1) of the Media Act, read together with Rule 20 of the Media (Complaints Commission) Rules 2009, the party against whom a complaint is made is required to respond in writing (by way of a defense) and to attend the Commission during the proceedings. The Commission has noted that although Mr. Linus Kaikai attended the proceedings on behalf of the respondents the respondents did not file a defense to the petition. No evidence was tendered to rebut the facts of this matter as set out by the complainant. This Commission is set up under section 23 of the Media Act. Under section 24 (1) of the Act, the Commission is empowered to establish an Arbitration Panel consisting of not less than three members to deal with any matter before it. This panel, as presently constituted, is an arbitral panel in exercise of powers donated under section 24(2) of the Act. The panel's jurisdiction is set out under section 26 (1) of the Act. With respect to the present complaint we are limited to section 26 (1) (a) of the Act. Under section 27 (2) of the Act, the Commission (or any of its panels) may, [H]aving heard the matter in issue, make a report, issue any decision as it deems appropriate and give directions in connection with the complainant, and shall publish its findings if it considers it in the public interest to do so. The boundaries of the Commission's powers are further enlarged under section 29 (1) which empowers the panel if it considers it appropriate, to order an offending party to publish an apology and correction in such a manner as the Council (emphasis added) may specify. It is instructive that the Act suggests that the mode and method to be followed by the apology is subject to the specifications of the council. We interpret this clause to mean that having heard a complaint the Commission may make an order for apology and correction in such terms as the council may stipulate or indicate. I shall return to this matter later in this ruling. What does the complainant require of this panel? He prays that the commission makes an order for a retraction of the story; an appropriate apology and undertaking that the same will not be repeated in future. The complainant's basis for his prayers is that the news item complained of violates section 1 (a), 1 (b) and 1 (c) of the Second Schedule to the Media Act and sections 3 and 20 of the same schedule (Code of Conduct for the Practice of Journalism). These sections deal with accuracy and fairness, as well as integrity and use of pictures and names in a story. I do not consider it necessary to set out the words of these sections herein. How does the complainant's evidence abide with the law on which he seeks to rely on for his prayers? It is the complainant's evidence that the respondent did not seek his comments before the story was aired; that he was not treated with respect and dignity and that the respondent did not apply caution in the use of the photographs which accompanied the story complained of. The competing interests in this matter are freedom of the media (the right of the media to inform the public on a matter of general interest) and privacy of the citizen (right not to be projected in a negative light without justification). The right to privacy is invaded and violated when a complainant is given publicity that unreasonably places him in a false light before the public. This is why the code of conduct requires that journalists be objective and write stories that are fair, accurate and un-biased on matters of public interest. At the heart of the right to privacy is what America's Supreme Court Justice Louis Branders (before he became Judge) loosely referred to as "the right to be left alone/' We remind ourselves that the complaint before us is not one of defamation. Defamation falls on its face when only the complainant testifies; for it is not to the complainant's opinion of himself which is at issue but that of the other persons. 15th April, 2011 THE KENYA GAZETTE 1137 The requirement that a TV journalist presents an accurate and fair story is part of the historical developments in the free press. A journalist has to constrain himself against personal biases and prejudices. In the media profession, it is critical that a journalist presents un-biased information to the public. This is part of a contractual duty the media owe to the public. This duty is primary and in our view perhaps over-rides the complaint of any person such as the petitioner before us. For the journalist, the reputation and credibility of his news house rests on presentation of news without preconceived notions, partiality, favouritism or prejudice. It is widely agreed that a reporter must differentiate fact from opinion. This Commission is awake to the need to grow, uphold and maintain a respect for media freedom. Freedom of the media is at the heart of a progressive society. It informs development in all spheres of public discourse. It checks the actions of public officers. It holds them back from un-restrained actions and waste. It is the public's safeguard to wanton bureaucratic behaviour. On the other hand, every citizen has a legitimate expectation that his privacy will not be violated without justification. The question before us is whether on the evidence the news item complained of though making comments on a matter of public interest strayed beyond the boundaries of permissive conduct and thereby contravened Dr. Murungaru's fundamental rights to privacy. With respect to the news item we ask; was the news item factual? With respect to the specific complaints raised by Dr. Murungaru; were the words attributed to Dr. Murungaru actually uttered by him? If the words ascribed to Dr. Murungaru had been uttered by him I would have had no hesitation in dismissing his complaint. I am in the present circumstances unable to do so because Mr. Nagila moved beyond acceptable limits of accurate and fair reporting. Further, I do not agree with him that Dr. Murungaru is facing a legal battle. I think he has waged a legal battle. The import of these two situations is different; in the former Dr. Murungaru is on his defence; in the latter, he is the aggressor. In the public eye, a person who has filed a suit occupies a different position from one who is charged. The perception is that the first is protecting a right, the other defending an accusation. In the untrained eye, the first stands justified; the second walks on the brink of censure, even condemnation. I have no doubt that the public has a right to know who conceived, perpetuated and benefited from the Anglo leasing contracts. Such knowledge must be based on facts, not innuendo; truth, not pieces of information pieced together in an attempt to create reality. On the twin basis that the news report was not fair and accurate and that a citizen's right to privacy should not be violated on insinuation and allusions, I find for the complainant. I order and direct that the respondent retracts the story and offers an apology. I shall not make an order for an undertaking not to run similar stories in the future. Tomorrow shall govern itself. Accordingly I order that counsels for the parties do agree on a draft statement retracting the offending story and offering an apology to the complainant within 14 days of today's date and further to agree on a date for publication of the statement within 21 day's hereof. In the event of failure this matter to be mentioned before the Commission for further orders. Either party is at liberty to apply. It is so ordered. Dated, signed and delivered at Nairobi this 1st day of March, 2011. NANCY BARAZA, Chairperson PETER MWAURA, MUREJ MAK‘OCHIENG, Members. In the presence of— Ms. Tuge holding brief for Mr Kioko Kilukumi for the complainant. Mr. Sekoue Owino for the respondents.