Book ban lifted!

Kenyan court grants temporary stay, pending hearing of certiorari application

Kenneth Matiba v The Attorney General
Civil Appeal No. 42 of 1994
Kenya Court of Appeal at Nairobi
13 November 1998

THE Kenya Court of Appeal has lifted the ban imposed on a book by one of Kenya's leading politicians and a vociferous critic of the government, Kenneth Matiba, pending the full hearing of the author's substantive application for the banning order to be permanently quashed on the grounds that it violates the author's freedom of expression guarantees in the Kenyan Constitution. The Court found that the High Court, which had refused to grant a stay, did so without affording counsel for the appellant an opportunity to be heard and in violation of the rules of natural justice.

Facts

In early 1993, the appellant authored and published a book, Kenya: Return to Reason, which critiqued the recent performance of the Kenyan govern-ment. It contained a concise record of Kenya's political and economic history as well as human rights. It also carried various materials previously published in the print media.

On 14 January 1994, in exercise of powers conferred by s 52 of the Penal Code (Chapter 63 of the Laws of Kenya) the Minister of State in the President's office, through a gazette notice, declared the book a prohibited publication. In the High Court, the Appellant sought leave to apply for an order of certiorari to quash the prohibition order. He also applied for the grant of leave to act as a stay of the said order until the determination of the application for the order of certiorari.

President Moi (right). Criticism of his government led to book ban.

The appellant submitted that that at no time prior to the prohibition of the book was any notification of the intended action given to him nor was he called upon to show cause why his book should be declared a prohibited publication. He stated that he was not afforded any opportunity to be heard or to make representations upon the prohibition of the book. He further submitted that the prohibition was not reasonably justifiable in a democratic society and argued that the prohibition order was made in violation of his right to freedom of expression as guaranteed by s 79 of the Constitution and was in breach of the rules of natural justice.

The High Court, Pall J presiding, granted leave but directed that the order would not operate as a stay on the prohibition. Counsel for the appellant appealed the refusal of the court to order a stay saying that the learned judge had not afforded him an opportunity to address him on the application and in particular on the prayer for stay in respect of which he proceeded to deny the appellant without any representations being made to him.

ecision

The Court of Appeal (Gicheru, Tonui, and Lakha JJA), found that on the face of the record of proceedings in the court below, it appeared that the counsel for the appellant had indeed made no submissions. The fact that there was an order recorded but no record of submissions strongly suggested to the court that the order "was made by the learned Judge in the presence of (counsel for the appellant) but without affording him an opportunity to address the learned Judge."

The court pointed out that the rule that no person should be condemned unless they had been given a fair opportunity to be heard was a cardinal principle of natural justice, and as it had been breached in this instance, the court could not sustain an order that "flowed from such a fundamental breach." Without having to consider other grounds of appeal, which the court also found to be "particularly persuasive", the court allowed the appeal and ordered that the minister's order prohibiting the appellant's book be stayed pending the hearing and disposal of the application for the order of certiorari in the High Court. The court awarded the costs of the appeal to the appellant.

Njonjo Mue, Article 19
With Gichinga Ndirangu in Nairobi.