Serious questions raised as editor is jailed for contempt

Vindictive trial a clear manipulation of the judiciary by the AG

THE KENYAN COURT of appeal, sitting as a court of first instance, recently jailed an editor and publisher for six months without the option of a fine, and fined his publication KShs. 1 Million (approx. US$14, 000) for contempt of court following the publication of allegations of high level corruption in the Kenyan judiciary. Tony Gachoka, editor and publisher of The Post on Sunday magazine published two articles in January and February this year alleging that the then Chief Justice Zaccheus Chesoni (now deceased) had received a 30 Million (Approx. US$ 410, 000) shilling bribe to ensure that the courts ruled in favour of one of the litigants in a case where the ownership of the Kenya Duty Free shops was in dispute.

The charge against Gachoka was that the publications were sub judice and that they were a scurrilous and unjustified attack upon the court which were calculated to bring into disrepute and contempt the administration of justice in Kenya. Kenya's Attorney General, Amos Wako, brought charges against Gachoka before a 7-judge bench of the Court of Appeal, Kenya's highest court. Six of the seven judges returned a verdict of guilty and Gachoka was sentenced to the maximum sentence for contempt - six months without the option of a fine. His publication, The Post on Sunday, was also fined KShs. 1 Million with an order that it was not to be published until the fine was paid. This effectively closed down the publication.

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Freedom of Expression activists, including ARTICLE 19, have raised questions over the Gachoka case and its implications on media freedom and the fight against corruption. In a letter to Kenya's President Daniel Arap Moi, ARTICLE 19 expressed grave concern about the jail sentence imposed on the editor. Executive Director Andrew Pudephatt said that ARTICLE 19 believes that custodial sentences are disproportionate punishment for content-related offences such as that which Tony Gachoka was alleged to have committed.

He also said that the fine of Ksh 1 Million which accompanied the custodial sentence was excessive in the extreme. The scale of the fine would also have a major "chilling effect" on freedom of expression. Three of the judges who handed out the sentence of imprisonment in the Court of Appeal had been named in the articles for which the editor was charged with contempt of court. The articles alleged that several judges had received bribes in connection with the Goldenberg scandal. To have the three in the panel violated one of the most cardinal principles of natural justice that no person should be judge in their own cause.

Further, the editor was refused an opportunity to tender oral evidence or call witnesses in his own defence despite having expressly asked to do so. Gicheru J., the single dissenting judge in the trial expressed concern about this lapse: "…failure to allow (the editor) to give oral evidence on his own behalf after having expressed his wish to do so would amount to a breach of one of the rules of procedure under which the said application (for contempt) was brought to this court," said Gicheru J. "I shudder at the thought that with clear provisions of the law entitling (the editor) to give oral evidence on his own behalf after he has expressed his wish to do so, the court would be blind to the obvious miscarriage of justice."

It is also open to question whether the Court of Appeal has jurisdiction to try contempt cases, which power is normally vested in a court of first instance. All of these factors raised grave doubts as to whether Tony Gachoka can be considered to have had a fair hearing. It is impossible to avoid concluding that his imprisonment was politically-motivated.

The case of Tony Gachoka is not the first example of the use of the 1964 Contempt of Court Act to unduly restrict freedom of expression in Kenya. Following on from its use against two journalists working for The People newspaper in 1994, who were imprisoned for several months concern has been expressed that this legislation may increasingly come to be used to silence critical media voices in a context where other options, such as sedition or arbitrary banning orders, were no longer available in law.

Such charges have a debilitating effect on media houses and individual media workers because of the financial pressures of a trial, mounting legal costs and fears on the part of businesses about continuing to place advertisements in an affected publication. In these circumstances, ARTICLE 19 has called for the immediate and unconditional release of Tony Gachoka, the cancellation of the fine, and for the Post on Sunday to be allowed to resume publication.