The explosive court filings to counter Deputy President William Ruto’s defamation suit against activist Boniface Mwangi have set the stage for a dramatic case that threatens to lay open some uncomfortable details.
This comes as the documents by Mr Mwangi’s lawyers on Friday showed that they had not only filed a defence to Mr Ruto’s allegations but had also included a counter-claim against the Deputy President, which presents a tricky legal challenge.
Mr Mwangi’s counter-claim is, in effect, an independent legal suit against the Deputy President.
The law allows a party that has been sued, and which also has a claim against the plaintiff that is related to the first suit, to file counter-proceedings at the same time rather than taking out independent proceedings.
In suing Mr Mwangi, Mr Ruto states that a post on the activist’s Twitter page last month was false and malicious.
Mr Mwangi, who had linked the Deputy President to the death of businessman Jacob Juma in May and questioned his integrity, declined to delete the information and apologise.
Through lawyer Kioko Kilukumi, the Deputy President also wants the activist to be barred from ever publishing or posting on social media any defamatory material against Mr Ruto.
“We want Mwangi to be compelled to retract and delete the said tweet and apologise in all print and electronic media,” Mr Kilukumi says in court documents filed on October 7, which also seek damages for libel.
But the defence, in its filings on Friday, describes Mr Mwangi as a respected public-spirited journalist focusing on governance, human rights and social justice, who seeks to hold government officials accountable through his print, electronic and online projects.
The defence claims that as a result of his work, Mr Mwangi has been targeted by state organs including the police, militia and gangs linked to the government.
Defence lawyer Gitobu Imanyara has taken an expansive line, pointing out that the plaintiff is the Deputy President as a result of a coalition agreement between him and President Uhuru Kenyatta and that in that agreement, “he is more than merely a principal assistant to the President but an almost equal partner in the government affairs under a political instrument”.
FREEDOM OF SPEECH
Mr Mwangi points out that by virtue of his status, Mr Ruto should expect public scrutiny — and the views expressed against or about the Deputy President constitute an exercise of the democratic right to free expression.
The defence points out that Mr Ruto is subject to the onerous strictures of the Constitution including good governance, integrity, transparency and accountability.
The defence asserts that the conduct of the Deputy President ought to be “irreproachable” and that Mr Ruto “is legally and politically subject to intense scrutiny” not only from the media but also the public.
The defence says that Mr Ruto’s suit cannot be allowed in a democratic society committed to free speech since it would have a “chilling effect” on the freedom of expression.
The defence also claims that whatever Mr Mwangi said about Mr Ruto constituted “fair comment, value judgement, opinion and justification” and was, therefore, not defamatory.
As he had first claimed in the letter through his lawyer, Mr Mwangi has included a full assertion questioning Mr Ruto’s reputation.
The defence then makes the claim that “no one is entitled to a better reputation than he actually has” and “that the defendant has no reputation that a court of law should protect”.
The defence avers that Mr Ruto’s reputation is the one he has created in his public life over the years, and then proceeds to describe that reputation under nine headings.
These include the fact that Mr Ruto was charged before the International Criminal Court (ICC) for crimes committed during the 2007/2008 post-election violence.
The case in The Hague-based court against Mr Ruto and journalist Joshua Sang was terminated in April this year.
However, Mr Mwangi’s lawyers point out that the ICC found that there was sufficient evidence to establish grounds to believe that Mr Ruto may have been involved in the crimes in question.
They allege that the ICC case ended not because Mr Ruto was acquitted but because of a systematic disappearance of witnesses.
The second ground which the defence says disentitles Mr Ruto to the protection of the court is based on a claim that the Kenya Government has a reputation for extra-judicial executions and Mr Ruto is a senior member of the government.
The defence also alleges that Mr Ruto has been involved in corrupt land deals as a result of which his reputation does not deserve the protection of the court.
They cite a case in which the High Court ordered Mr Ruto to give Mr Adrian Muteshi back his 100 acres of land in Eldoret.
Another example is the Weston Hotel in Nairobi whose ownership the defence says Mr Ruto has admitted and which is built on land allegedly taken away from the Kenya Civil Aviation Authority.
There is also an allegation that Mr Ruto was adversely mentioned in the grabbing of land belonging to the Prisons Department in Nairobi and also the land on which Processional Way in Nairobi is located.
Also cited in Mr Mwangi’s filings is a criminal case in which Mr Ruto, as minister for Higher Education, was charged with grabbing Ngong Forest land.
It is claimed that the case only failed because a key witness was compromised by being given a job in the ministry of Agriculture.
The fourth set of reasons why Mr Ruto is not entitled to court protection, according to Mr Mwangi’s lawyers, is that the Deputy President has not taken steps against similar allegations made elsewhere linking him to the death of Mr Juma.
It is claimed that former Lugari MP Cyrus Jirongo twice made allegations to this effect, first during the requiem Mass for Mr Juma and during his funeral, and that the fact that Mr Ruto has not sued Mr Jirongo means he has acquiesced to these allegations.
Other grounds are an opinion poll which the defence claims showed that the Office of the Deputy President was ranked as the most corrupt in the government; a report by PricewaterhouseCoopers linking Mr Ruto to a maize scandal in 2010, and the fact that the plaintiff calls himself “hustler” — a term that has an unflattering dictionary meaning.
Finally, there is an allegation of an alleged romantic involvement between Mr Ruto and a university student.
Mr Mwangi’s counter-claim is supported by details about his own supposed good reputation, evidenced by the fact that he has been the recipient of more than 20 merit awards and training opportunities.
His lawyers claim that Mr Ruto’s assertion during a television interview last month portrayed Mr Mwangi as “alcohol dependent”.
The fact that Mr Mwangi has brought a counter-claim may have a profound effect on how the proceedings are managed.
Ordinarily, the plaintiff in a suit is keen for a hearing while the defendant might seek to delay proceedings in the hope that the plaintiff will give up and abandon the suit.
Therefore, the initiative for setting a suit down for hearing rests with the plaintiff.
Without a counter-claim, Mr Ruto would have been expected to exercise control of the speed at which the suit will move.
The fact that there is a counter-claim means that Mr Mwangi can also legitimately move to set the suit down for a hearing.
Given his busier schedule, and also the fact that the suit is not without possible political implications, Mr Ruto would have wanted a situation where he dictates the pace at which the proceedings will go — speeding things up, or slowing them down, according to where he sees the advantage.
The counter-claim gives equal opportunity to both Mr Mwangi and Mr Ruto to drive the suit.
Mr Mwangi could do so in a manner that hurts Mr Ruto’s interests.
Because the counter-claim is a suit of its own, Mr Ruto will now have to file a response to it before the suit can be ready for a hearing.
Mr Mwangi has provided a list of witnesses in which he has listed himself as the sole defence witness and indicated that other witnesses will be disclosed at the hearing.
In order to prove such an expansive defence, Mr Mwangi will have to rely on a large number of witnesses.
This means that the case is likely to drag out if it goes for hearing.
The defence has made wide-ranging allegations against Mr Ruto covering his entire career in public life.
Whatever else it is, the case begins to look like a trial of Mr Ruto, rather than Mr Mwangi.
By filing a suit against Mr Mwangi, the Deputy President has created a situation where Mr Mwangi is able to bring a counter-claim against him.
Whether relying on legal advice instead of having political considerations especially ahead of an election year in making the decision to sue Mr Mwangi is a matter that will be clear as the case progresses.