Democracy requires that everyone in a state has the opportunity to exercise public participation in governance and enjoy rights and fundamental freedoms.
The participation of the people features prominently in our Constitution. Article 10( 2 )(a) makes it a national value and principle of good governance that everyone interpreting or applying the Constitution, or law, or making or applying policy must respect. It is also an obligation regarding the environment under Article 69( 1 )(d).
Both Parliament (Article 118( 1 )(b)) and County Assemblies (Article 196( 1 )(b) must facilitate public participation in carrying out their legislative and other functions.
Participation of the people is an objective of devolution in Article 174(c) and Article 201 makes participation a principle of public finance.
Another form of public participation is going to court about an alleged violation of the Constitution, generally (Article 258 ), or specifically on human rights (Article 22 ), on behalf of others or in the public interest.
The constitution guarantees certain rights closely connected with public participation such as freedom of expression, association and assembly.
These three rights, like most others, are not absolute, meaning they can be limited in accordance with Article 24 of the Constitution. This requires that any limitation be by law.
There must be a legitimate purpose for limiting the right – such as a policy need – and the limitation must be necessary achieve that purpose.
If there is a less rights-restrictive means to achieve the legitimate aim, the law does not satisfy Article 24. These provisions are relevant to the possibility of expressing criticism of government and others, and facilitating the general expression of public opinions.
This is why the possibility of these rights being exercised may be obstructed by SLAPPS – strategic litigation against public participation, though SLAPP suits may target other rights also.
Although we have a progressive and transformative constitution and legislation, the practice is often different.
The state and private persons have attempted to use law to place an economic burden on, or even criminalise those who seek to exercise their rights and duties.
For example, during the Gen Z movement in 2024, it was alleged that – apart from the illegal enforced disappearance (or even killings) of those who were vocal on social media – many who assembled peacefully were arrested and charged with criminal offences.
The Director of Public Prosecutions later dropped many of these cases. The effect of these state actions has been a ‘chilling effect’ – a potent discouragement of individuals hoping to raise their voices against an unconstitutional state of affairs. Criminal prosecution is a state strategy.
A private strategy is to sue, including for defamation – damage to reputation – which may lead to substantial damages.
‘SLAPP suits’ is a term coined in the 1980s in the United States and Canada, referring particularly to powerful companies going after individuals or organisations that were vocal against alleged environmental degradation by the companies.
A useful analysis was in the 2022 South African Constitutional Court case of Mineral Sands Resources v Reddell [ 2022 ] ZACC 37. This involved appeals in cases brought by mining companies against environmental defenders and lawyers for alleged defamation for things said in lectures at academic institutions or in media interviews.
The Constitutional Court said: “[l]awsuits of this kind are usually brought for the purpose of preventing or discouraging political expression and comment on public issues.
Their objective is to limit protest and dissuade individuals, citizens and activists from political participation…SLAPP suits are frequently brought as defamation claims, abuse of process, malicious prosecution… cases.
Their aim is to intimidate and scare a litigant who may previously have brought to light matters of public concern.”
The court noted that such suits often do not have merit and the aim of those who sue is to have their critics, whom they sue, tied up with paperwork or bankrupted with legal costs, so that they abandon their campaigns against those who have filed the suits.
Resistance to the implementation of the constitutional right to information by challenging in court the order of the Commission on Administrative Justice (Office of the Ombudsman) is arguably a form of SLAPP – and will be heard in the High Court soon.
You may have read shocking news of Greenpeace entities in the US being found liable for more than $660 million (about Sh85.2 billion) damages in a case filed by Energy Transfer following protests against the construction of a pipeline, because of risks the pipeline posed for tribal lands in North Dakota. This is one of the highest recorded awards globally against an organisation acting in support of public interest.
COSTS In Kenya, one of the concerns frequently raised in the context of SLAPP suits is the cost implications: when the losing party has to pay the cost of litigating of the winning party.
This is mostly in civil cases, such as defamations cases, more rarely in constitutional cases. Under court rules for human rights cases, a court has discretion about costs, and the court must take appropriate measures to ensure that every person has access to the court to determine their rights and fundamental freedoms. This has led to the Supreme Court holding that in public interest matters, each party will bear its own costs.
The winner does not take it all. This is in stark contrast to South Africa, where, if an individual wins a case against the government, the government must cater for the legal costs of both sides. However, if the person loses against the government, each party will bear its own costs.
WHAT CAN BE DONE?
We need more restraint in the prosecuting agencies. They are supposed to be independent, and they should not use their ability to prosecute to shield the government from criticism.
The shield of the constitution ought to be applied more often. Fortunately, the court declared the crime of defamation unconstitutional as an unjustified limitation of the right to freedom of expression in Jacqueline Okuta v Attorney General [ 2017 ] KEHC 8382 (KLR).
However, the Cyber Crimes and Computer Misuse Act includes offences that are, in effect, criminal Defamation in that particular context, and are used against human rights defenders for expressions on social media, and courts have rejected the argument of unconstitutionality.
The use of the civil law of defamation for SLAPP purposes is damaging to media (and there are many cases settled between media and public figures without ever going to court, and considerable sums paid).
Arguments about unconstitutionality have not been made as often or as strongly as possible, and have been unsuccessful. Damages often awarded are also unduly high.
The European Union recently took an important step by issuing a directive against SLAPPs. A person sued can request the Court for early dismissal of the case on the basis of its being SLAPP.
Claimants who have brought abusive court proceedings against public participation could be ordered to pay costs and other punitive damages. This is a progressive step to protect the exercise of Public Participation, but needs more spelling out at national level, human rights organisations have said.
Green Peace International has filed a case in the Dutch courts against Energy Transfer on the basis of that Directive. This case is one to watch. There is also anti-SLAPP law in many US states and some Canadian provinces.
In Kenya, the constitution promotes public participation and realisation of rights, and all, including commercial concerns, not just the state, must respect rights.
However, we must all be vigilant to ensure that neither the state nor private actors cause a chilling effect and silence persons seeking to exercise their rights.
Enacting laws to protect the public against SLAPP suits could be a valuable contribution.
The author is
Head of Strategic
Litigation, Katiba
Institute
