Prevention/Prosecution of Criminal Activities

Kenya – Right to Publish Information about an Ongoing Criminal Investigation

Republic vs John Kiptorus Chemweno and David Barasa Makali

The case of Republic vs John Kiptorus Chemweno and David Barasa Makali[1] concerned a police investigation into a murder in September 2003 that was of great public interest. In the midst of heated constitutional debate, Dr. Odhiambo Mbai, the Chairman of the Devolution Committee of the National Constitutional Conference at Bomas, who advocated limiting the president’s broad powers, was killed in his home. The police opened an investigation. The Standard newspaper ran a story implicating some key government people, including an MP, in the murder. John Kiptorus,  a police officer at the station that was handling the investigation, was suspected of having given a copy of the police video cassette containing information about Dr. Mbai’s death to David Makali, who was at the time the Standard’s editor and a journalist. Both of them were arrested and charged in criminal court for stealing the video cassette, the property of the Kenyan Government.

The Chief Magistrate, Aggrey Muchelule (who has since become a Judge) found that there was no theft of the transcript in question and acquitted both accused. In his ruling, the Chief Magistrate stated as follows:

This was a death that caused anxiety among the public and to the nation. The police had a duty to investigate and make the public aware of the investigations. In any case, the traits of any investigation that are in the possession of the police are not the property of the police. They are the property of the public that pays for the state to carry out the investigation.[2]

In this case the press had the duty of finding out who had killed Mbai and letting Kenyans know. The press and the police were not in competition but had a complementary role. All that was required was for the press to be accurate and fair. To find that accessing information regarding the ongoing investigations into the death of Mbai was theft of that information would, in the circumstances of this case, be an affront to the constitutional freedom of the press and the right of Kenyans to know about the affairs of their country. That would be a dangerous and scaring road on which this court would not invite the police to travel.

Noteworthy is the court’s finding that the public has the right to know about affairs of their country.[3] It should, however, be noted that in Kenya, magistrates courts are not courts of record and their judgments, which are not officially published, are considered of low precedential value.