It is ironic indeed and amusing to behold but it appears some friends of Raila Odinga are looking to someone they have vilified for years as an unlikely quarter for succor: the Kenya Forum is referring to the libel case of Mr Nicholas Biwott.

Articles recently published in the Daily Nation and The Nairobi Law Monthly on the subject of the on-going spat between Miguna Miguna and Prime Minister Raila Odinga have drawn parallels with a libel action taken 12 years ago by ‘Total Man’ Nicholas Biwott over allegations in a book of his involvement in the murder of Kenya’s Minister of Foreign Affairs, Dr Robert Ouko, in February 1990.

There are indeed lessons to be learned from that ground-breaking case that resulted in the largest award in damages for defamation in Kenyan legal history but they will make uncomfortable and confronting reading for some friends of Raila Odinga, many in Kenya’s ‘civil society and not a few of our journalists.

An understanding of that case and the facts behind it not only dramatically alters the perspective as to who killed Dr Ouko, or more precisely who did not, it also challenges many Kenyans as to whether they have truly come to accept the dispensation established by adoption of Kenya’s new Constitution and its Bill of Rights.

Dr Iain West’s casebook and the Nicholas Biwott libel action

In December 2000, former cabinet minister Nicholas Biwott successfully sued the British publishers and printers of a book entitled Dr Iain West’s Casebook together with two Nairobi bookshops that had distributed it.

Dr Iain West’s Casebook had been authored by a British journalist, Chester Stern (who at that time worked for the British tabloid newspaper The Daily Mail), writing in collaboration with Dr Iain West, a British pathologist who had been part of the New Scotland Yard team brought in to investigate the murder of Dr Robert Ouko in February 1990.

The book “alleged Mr Biwott’s involvement in the murder” of Dr Robert Ouko.

The result of the defamation case: Sh30 million penalty

The Kenyan defendants, the booksellers, agreed an out-of-court settlement. The British defendants however, the publishers and printers, who were served a summons in the UK, failed to make an appearance: nor did Chester Stern or Dr Iain West.

The British publishers had said they would “vigorously defend” the book and keep selling it internationally. Stern and West said they had witnesses who would “testify as to the truth” of the allegations against Biwott. Stern told a British newspaper that he would never apologise and had no intention of withdrawing the book.

Neither the publishers, printers or authors however, produced witnesses or testimony to defend themselves, nor did they do so in person.

The High Court of Kenya presided over by Justice Alnashir Visram, awarded Nicholas Biwott Sh30 million in damages, to date still the highest award for defamation made by a court in Kenya.

Nairobi Law monthly article

Jump forward 12 years and Biwott’s record-breaking libel action is featured in this month’s edition of The Nairobi Law Monthly. In an article by Jennifer Wanjiru, entitled ‘Biwott case opened a new chapter in book defamation compensation’ one of a series of articles that looks at ‘cases that changed legal practice in Kenya’.

The article is ostensibly about the Biwott libel case and the effect of the judgment on Kenyan legal practice but it is in reality more about the possible consequences that could flow from the publication of Miguna Miguna’s book, ‘Peeling Back the Mask’.

Jennifer Wanjiru begins the piece, ‘If you want to know the high price of a book defamation, ask those that have walked down that path’ and continues in the next paragraph with what looks like a warning: ‘Miguna must have done his homework well, or otherwise he should stop digging’. Wanjiru’s article thus cautions Miguna Miguna.

Rock Superstar Elton John

The award of Sh30 million was ‘criticised for being excessive’ Wanjiru wrote but later in her article gave the reasons why it was in some respects so high. Part of the the justification for the level of the award was based on a defamation case in the UK involving ‘Rock Superstar’ Elton John.

In 1996 Elton John, multi-millionaire pop performer of such songs as ‘Your song’, ‘I’m still standing’, ‘Candle in the wind’ and ‘Rocket man’, was awarded £25,000 (Sh3,275,000 at today’s exchange rate) in general damages and £50,000 (Sh6,550,000) in exemplary damages for an article which said he had a dietary disorder and that he was ‘pursuing a bizarre diet’.

Judge Alnashir Visram’s summarising statements

So, set against the figure of nearly Sh10 million for an award to British pop star because someone wrote that he had a dietary disorder, the figure of Sh30 million for being falsely accused of killing your country’s Minister of Foreign Affairs, doesn’t seem too excessive.

Judge Alnashir Visram stated that an award for defamation “should vindicate the Plaintff’s [Biwott’s] reputation in the eyes of the public” and he quoted Lord Hailsham, as Jennifer Wanjiru noted, “that a plaintiff must be awarded a sum to which he can refer to convince others that he was wrongfully accused”.

Alnashir Visram added to this that, “The conduct of the UK defendants since the publication has not helped matters in fact they have deliberately and arrogantly announced that they will neither apologise nor withdraw the book” and that, “They have even had the audacity to say that the offending words are true…”.

The Biwott libel case: more than one lesson to learn

Jennifer Wanjiru’s Nairobi Law Monthly article is well written and in large measure balanced in its assessment of the Biwott libel case. However, it seems in part, as we have said, not only to be a warning to Miguna Miguna it also appears to be pointing to a possible route of action for Prime Minister Odinga and/or those around him who have been the subject of Miguna Miguna’s allegations – legal action to sue for defamation.

There are several problems however, and more than one lesson to learn, for anyone using the Biwott case as a guide as to how to proceed when faced with damaging allegations in a book.

Jennifer Wanjiru’s article considers the reasoning behind Judge Alnashir Visram’s award in a case that was not defended.

The defence in a libel action is that the words written were true. What’s more, the defendant’s lawyers will know that they will be able to seek full disclosure of all documents and relevant evidence.

A libel action is not like some of the commissions and parliamentary inquiries held (or staged) in Kenya in the past. The presiding judge is not like an appointed chairman of a public commission or parliamentary inquiry who can just refuse to allow an accused person, or accuser, to testify if it does not suit him, and witnesses can be cross-examined, they cannot refuse to do so once ‘put on the stand’.

What this all means in turn is that in a libel case, the Plaintiff, the person bringing the action, can also in effect be on trial.

So why did Nicholas Biwott and his lawyer Mr Desterio Oyatsi sue over ‘Dr Iain West’s Casebook’? The answer is that they knew they could prove that the story told in it (or rather in one chapter in the book) was not true.

‘Dr Iain West’s Casebook’: error ridden and littered with inaccuracies

Chester Stern’s book (because the book was essentially his work) ‘Dr Iain West’s Casebook’, or at least certainly the chapter dealing with Dr Robert Ouko’s murder, gives all the appearance of having been a hurried project, a case of just getting the words down and rush to publish.

The chapter on Ouko’s murder is also littered with inaccuracies.

Stern wrote that Ouko had disappeared from his Koru farm on February 12, it was actually in the early hours of February 13. He stated that Ouko’s body was not found for three days but Scotland Yard (and the Kenyan Police) reported the testimony of up to eight witnesses who confirmed that the body was initially found by a ‘herdsboy’ the same day as Dr Ouko disappeared, February 13. Even the spelling of Dr Ouko’s wife’s name is incorrect.

Stern resorted to two disproved theories as to why Ouko was murdered

Stern trotted out the two main theories given at the time for possible motives for Dr Ouko’s murder: that there had been a ‘row’ between Dr Ouko, Biwott and Moi on a ‘Prayer breakfast’ visit to Washington D.C., and allegations of corruption over the Kisumu Molasses Plant project in Kisumu.

Yet by 2000, the time of the libel action, both theories and some of the people behind them, had been utterly discredited.

The Washington Row theory

Chester Stern’s claim that Dr Robert Ouko ‘had been met with open arms’ by President Bush Snr on the trip to Washington D.C in late January and early February 1990, a meeting that supposedly infuriated President Moi and led to a row with Biwott and ultimately to Ouko’s murder, can be proved not to have been true because no such meeting took place.

Who says no such meeting took place?

Well, no one from the 83-man ‘Prayer breakfast’ Kenyan delegation knew of any meeting between Dr Robert Ouko and President Bush Snr or of any ‘row’. Nor did the Kenyan Ambassador in Washington, Denis Afande, who organized the visit and later issued a full statement detailing what happened and testifying to the success of the visit.

Meanwhile there was plenty of evidence that Biwott and Ouko stayed at the same hotels and shared a car together in London and Washington. They also shared the same flights (Stern wrote that Ouko had been sent home on a different flight) as eye witnesses confirmed, a fact supported by photographs from newspaper archives showing Dr Ouko landing back in Nairobi with the delegation and walking beside President Moi.

US sources say there was no meeting between Robert Ouko and George Bush Snr

Don’t believe the Kenyan delegation? Who else says that Bush Snr and Dr Ouko did not meet on the Washington trip?

President Bush’s official library released his official diary and said in effect that there was no meeting with Ouko on that trip. Bush’s lawyer confirmed this, in writing, as being an accurate record of what did and did not occur, and we now know that the then US Ambassador in Nairobi, Smith-Hempstone, sent a telex to the US State Department stating that no meeting took place.

President Geroge Bush Snr and Dr Robert Ouko did not meet during the Washington trip of early 1990. The reason given for the so-called ‘row’ never took place.

The source of the Washington row theory

Who said they did meet and that there was a row?

The origin of the ‘row’ theory came from Dr Ouko’s brother, Barrack Mbajah, who had not been on the Washington trip and testified in a long written statement to Scotland Yard at the time that he did not speak to his brother from the time he left for Washington and the day he was murdered.

Ouko sacked and banished?

Chester Stern also trotted out Barrack Mbajah’s allegations made one-and-a-half years after his brother’s murder (by which time Barrack Mbajah had fled to the United States) that Dr Ouko had been sacked, banished, his passport removed, and his bodyguard and driver withdrawn from duty.

These allegations have also been shown to be nonsense.

Mrs Christabel Okuo, Dr Ouko’s wife, handed over his passport to Scotland Yard and signed a statement confirming that she had done so. Ouko met with Moi and his departmental colleagues and continued to liaise with the latter until the day before he died. He also traveled to his Koru country home with his driver and his bodyguard and arranged for the latter to be ready to meet him prior to his next official visit to The Gambia due to begin on the 14 February. These facts were testified to in Scotland Yard’s ‘final report’.

The Kisumu Molasses plant corruption theory

The second theory as to a motive for Dr Ouko’s murder which Stern referred to, that Biwott was involved in corruption over the Kisumu ‘Molasses Project’ and was the subject of a ‘corruption report’ supposedly being written by Dr Ouko at the time of his murder (which Biwott wanted to suppress), had also been totally discredited.

Enter Ms Marianne Briner-Mattern

The source for the Molasses Project corruption theory was a Ms Marianne Briner Mattern, who together with her business partner, a Domenico Airaghi, were two Italian-Swiss nationals who said they ran ‘BAK’, a company that tendered to help re-start the Kisumu Molasses plant.

[Stern referred to the same allegation made by Dr Ouko’s sister Mrs Dorothy Randiak but Randiak only made that claim in her third statement to Scotland Yard, did not mention it in her first two lengthy statements, and later agreed that the allegation could not have been true.]

Detective Superintendent John Troon who headed the Scotland Yard team investigating Ouko’s murder, said he accepted Briner-Mattern’s testimony, which was only in part supported by Airaghi’s testimony, because they were ‘honest’ people who ran a ‘reliable’ company with a reputation to defend.

Convicted fraudster

The proven reality was that throughout all the time he was dealing with the Kenyan government and later Troon’s investigation, Airgahi was out on bail from a Milan court, convicted of fraud and extortion(a conviction that was upheld).

The main witness in Airgahi’s defence and his partner in crime was none other than Marianne Briner Mattern. Briner-Mattern. The Italian judge described Briner-Mattern as being an ‘unreliable’ witness and said that it would be better to “draw a discreet veil over her testimony”.

Fake Company

As for their ‘reputable’ company, BAK, it had never traded or been formally incorporated. A version of it was only finally incorporated as a company on February 13^th, 1990, the day Dr Ouko was murdered – quite a coincidence.

After that Briner-Mattern’s claim for compensation from the Kenyan Government over the failed Molasses Project rose from $150,000 to $5,975,000.

Two Italian companies

Of Briner-Mattern’s corruption allegation that Biwott and others had asked for bribes for an Italian company to win the Molasses Project refurbishment contract, that too was proven to be a lie.

The two Italian companies concerned had both been introduced to the Kenyan government by Briner-Mattern’s partner Domenico Airgahi and not one of them by Biwott as she had claimed, and both were part of the same multinational group.

It was therefore impossible to see how a ‘kickback’ could be offered or asked for a company to win a contract against itself. Both Dr Ouko’s sister Dorothy Randiak and the British detective Troon accepted this fact under cross-examination during the Gicheru Commission hearings in 1991.

The corruption file

The ‘corruption file’ that only Marianne Briner Mattern said existed was never produced. In front of Gor Sunguh’s Parliamentary Inquiry into Dr Ouko’s murder Briner-Mattern said that then files she had to prove the allegation had been stolen, taken out to sea and dumped off the coast of Tanzania.

‘By any measure you want to take given all the evidence now known about the case, Nicholas Biwott, whatever else we may think of him, was and is innocent of any involvement in the murder of Dr Robert Ouko’

[See also the documentary, Murder at Got Alila: Who Killed Dr Robert Ouko and Why [Episode 6]?

Biwott would have won

With Biwott’s lawyer armed with this information and confident that the sources for the accusations against him over the Ouko murder, the brother Barrack Mbajah and Biwott’s principal accuser Marianne Briner-Mattern, would find their allegations torn to shreds under cross-examination (to this day neither have faced cross-examination) the result of any contested libel action over the publication of Dr Iain West’s Casebook would never have been in doubt: Biwott would have won.

[It is hard for many Kenyans to accept, they have been told another story for over two decades, but by any measure you want to take given all the evidence now known about the case, Nicholas Biwott, whatever else we may think of him, was and is innocent of any involvement in the murder of Dr Robert Ouko.]

Searching questions over possible Miguna defamation case

If Jennifer Wanjiru’s article in the Nairobi Law Monthly was a pointer for Raila Odinga or those around him to sue Miguna Miguna for defamation over the very serious allegations he has made in ‘Peeling Back the Mask’ based on the example of the Nicholas Biwott libel case then they will have to ask themselves some searching questions (and seek legal advice).

Raila Odinga and his ‘close circle’

The Prime Minister Raila Odinga and others in his close circle who were adversely mentioned by Miguna Miguna will have to assess whether they have the evidence to their fingertips that the level that Nicholas Biwott and his lawyers had when he sued over Dr Iain West’s Casebook in 2000.

They will have to take into consideration as well that if one or more of them sues Miguna Miguna, they too will in essence be on trial and that Miguna’s lawyer will have the opportunity to demand information from the plaintiffs and call witnesses in his defence.

The question is, do they feel as confident as Nicholas Biwott did in 2000?

Miguna Miguna

Miguna Miguna meanwhile should ponder (although it’s a bit late now) whether he can substantiate his allegations and remember that if he were not to defend himself in any defamation suit over ‘Peeling Back the Mask’, and especially if he were to continue his bellicose public statements, the costs and consequences for him could be severe.

Miguna Miguna will have to decide whether it is to be ‘Come Baby Come’ or ‘Run Baby Run’.

As Peter Mwaura pointed out in an article in the Saturday Nation recently, ‘the law of libel has become internationalised’: Miguna Miguna could be sued in the UK or Canada and if he were to lose the damages awarded would still be likely to be more than would be the case in Kenya.

The Biwott Precedent

In an otherwise thoughtful and confronting article published last month (which the Forum recommends to its readers) on the subject of the response to Miguna Miguna’s allegations,  The Daily Nation’s Managing Editor Mutuma Mathiu suggested that taking court action to shut people up was ‘the icing on the cake’ and ‘the Nicholas Biwott template’. In this he was wrong.

A successful libel action requires the plaintiff to be confident of his or her innocence and to have the evidence to support the fact. If successful it should help confirm innocence, if unsuccessful, confer guilt. For the alleged defamer the consequences of defeat should be severe.

Judge Alnashir Visram quite rightly set the precedent over 12 years ago.

*Referred to in Raila Odinga’s autobiography ‘the Flame of Freedom’ as ‘Brenda Brimmer-Martens’ (Book ‘written with Sarah Elderkin’).

TAGS