Miguna's Book: Whos' to Blame? Fighting Words, the Constitution or Political Thuggery?
Miguna’s fact finding mission to relate the contents of his book to the masses is fundamentally protected by both old and new constitutions. But arbitrary beatings, harassments, mock burial, intimidation shows that we have a long way to go as we see thugs hired and cult followers of some individual with minimal police protection cannot go unquestioned. The right to freedom of expression is not an absolute right to say or to do anything that one desires. Rather, the interests of the government in regulating such expression must be balanced against the very strong interests in which this right is based. Miguna is a lawyer of high standing in two jurisdiction Kenya and Canada. He has written a book - Peeling the Mask, and while writing, he preempted it by asserting allegations against his employer Raila Odinga the Prime Minister. People had a moral expectation. The government had legitimate expectation as the intended book carried what was described as business as usual in the PM’s office. One wonders what would have happened had the script been authored before Miguna was fired.
We now begin by seeking some answers: While we know that the rational behind freedom of speech leads to the discovery of the truth and better ideas through the competition of different viewpoints, Miguna’s speech as expressed in his book such speech and action is a necessity for a free society that is to be governed by democratic principles. It allows people to bring about changes through non violent expressions. Miguna’s beef is not with the government. His beef is with the prime minister and his kitchen cabinet.
The rule of law protects speech as a human right. Even though the rule applies to restrictions on expression, freedom of speech is an important interest that cannot be restricted unless the government has a clear overriding interest. Did Miguna’s words amount to fighting words provoking a hostile response? Was he right when he said that “Luo’s vote like robots?” Did he provoke some members of the public by uttering such words? Were these words capable of inciting the masses? Was his own presence amount to clear and present danger? The law is clear that certain types of expression may be punished as criminal acts. For example a riot may constitute an expression of dissent, but damaging property is a criminal act so is digging a mock grave in Miguna’s home. Speech that is likely to produce illegal activity may itself be illegal. First, there was a speech by Miguna through his book. The Prime Minister came to his own defense through proxy Sara Elderkin. And before that, there was an unruly crowd in Nyando, the author’s home, where trees were destroyed and an illegal grave dug in his home while in full view of the media and the police. Whether this was within the prescribed methods of freedom of speech, it is up to the reader to make an informed mind. Then the Prime minister chose not to sue but admitted that Miguna ran away with the PM’s clothes while the PM was in a shower prompting him to buy new clothes. Perhaps the cloth seller has to tell us more about a naked figure walking with his hands covering the unusual segmentation in plain view.
Raila is an important government official and the government can or may outlaw speech that presents a clear and present danger. But this is only when harmful objects are thrown at him excluding eggs. The courts in Schenck v. United States affirmed that the right of free expression is not an absolute but varies with the circumstances e.g. a man is not free to falsely yell “fire” in a crowded theater. Miguna prescription is not within this category but however, he does not mete being abused by the usual stone throwers when the politicians involved stay silent probably as an admission of guilt. But Miguna ought to have solid advisers that sometimes, silence is gold whereas talking is silver. I would myself go for gold as is my usual character.
Coming to hecklers and beaters of Miguna in full view of the police and media, the basic rule is that free speech does not include the right to disrupt the community or anyone’s meetings. Fighting words are not protected, but an unfavorable response by the audience is not necessarily enough to render the speech unprotected. Calling the Prime Minister a thief, Luo’s voting robots (READ: Fury in Kisumu as Miguna Miguna Calls Luos "Voting Robots"), and other allegations could to some extent cross line of free speech prompting a reactionary audience. In Terminiello v. Chicago, 337 U.S. 1 (1949), the court held unconstitutional a breach of the peace statute that included a restriction on speech that stirs the public to anger, invites dispute, or causes unrest.
One of the functions of free speech is the invitation to dispute; free speech is often provocative or challenging. At this stage, one would pose: “May public expression, offensive to some but not personally abusive, which does not result in a clear and present danger to a substantial state interest be punished as a breach of the peace?" I would say no since, Miguna has not been punished by the government. But strict scrutiny would hold the government responsible since the footage shows that injustice was meted on Miguna in full view of the police who intervened too late. Moreover, Miguna’s meeting was in a public hotel where members were invited and police informed in advance. The police on the other hand could have applied protective suppression (Fiener v. New York, 340 U.S. 315 (1951)). The findings in this case would empower the police to suppress Miguna’s speech if in their judgment it was likely to cause a breach of the speech. The difficulty with this hypothesis is that it may have resulted in the restraint of speech as prior disclosure of the speech contents to the licensing authorities would have been considered unconstitutional.
In conclusion, public opinion is divided over Miguna’s book. Politicians are using the book to settle scores. The prime minister has refused to go legal. Miguna has fundamental rights to speak his mind. Those that caused mayhem ought to be brought to justice as we grow our constitution. Constructive criticism isn’t a bad idea but Miguna should read the mood in some regions and act cautiously.
By Prof George Luchiri Wajackoyah. Prof Wajackoyah doubles as an Adjunct Professor of Law and Kenya Presidential Candidate in 2013.
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