If you have ever watched any legal drama on any television show from any part of the world, you will have come across that moment when one of the lawyers shoots up with their mouth open and words spitting out the now familiar term hearsay! The dramatics of the moment are almost always contrasted by the stern judge who motions to the other lawyer to reframe the question or to ‘manage’ the witness before instructing the jury to strike out the words from the record.
Dramatic? Absolutely. Necessary? Absolutely, yes again.
If I were to describe hearsay to a layman, I would call it the learned word that lawyers and fancy speakers use when they don’t want to use the more familiar, street-kitchen-pulpit word we non-legal types call gossip. Technically, hearsay happens when person A says they heard something from person B who may have heard or seen the thing happening and, because of being summoned in court, person A ends up retelling the court what happened.
The reason you see the lawyer on the other side of the table standing up and shouting “hearsay your honour”! is because person A is not telling the court what happened, but technically, what they heard happened. Therefore, even if what happened is what they say happened, person A was not there when the thing happened and has no way of confirming whether the thing they say happened as it happened because that person was not a witness to the matter.
Person A, therefore, cannot say the thing happened because they did not see it happening and are therefore, not a witness to the matter. The point being that no matter how well informed they were, this is simply gossip after the fact. No matter how well they may trust the person who said it or in fact, how fast the information was relayed to them – even in real time – by this trusted person, the person is still passing gossip and it is not evidence. Evidence needs to be an account by those who saw or a recording of the incident in either video or writing (for documents), e.t.c.
The problem with hearsay is that someone can be coached on what to say. This could be a deliberate decision by the coach to get the reliable ‘witness’ who for some reason is more trusted to offer this evidence or it could be out of ignorance by both parties. SInce the court is not interested in all that drama that comes with a backstory about who did this and that and said when and where, they shut that thing down with the famous learned word we all know as hearsay!
When it comes to hearsay, no matter how good and reliable a witness who shared the details to the one who heard the story in order to relay it to court had been, is that in court evidence is critical and if one is a witness, one is a witness. Not a reporter after the fact. Even when reporting, once must provide evidence of sorts; something to collaborate their story.
The reason why hearsay is a hard concept to relate to is because most people rely on hearsay in real life. It is how we resolve our disputes and spread information; a system that has worked since forever and is now fueling social media and media and every form of communication.
It is also for this reason why hearsay happens so frequently on television and in movies: humans will always try to create witnesses and will always try to find a ‘witness’ to help them in legal matters and in a legal battle, any weapon will be deployed. It is up to the other side to point out that the person is not in fact a witness.
At the same time, the presiding judges are always ready to automatically shut down the witness because it prevents contamination of the evidence by gossip. In fact, these incidents almost always end with the requisite side eye to the ‘hearsayer’s’ legal counsel for trying to pass street-level gossip in court. The lawyer is usually advised to produce a proper witness or forget that line of questioning or witnessing.
So simple and easy.
When Senior Counsel Gitobu Imanyara objected to an instance of hearsay during a defamation case hearing that was held at the Siaya High Court, Justice Roselyne Aburili, who was the presiding on the case did not even give the requisite legal side-eye to the opposing counsel. In fact, not only was this evidence accepted and used in the Decision, but another, um, witness was allowed to tell what they heard about the case!
In this unique case, the drama came from Justice Aburili who, resulted in correcting the contradiction as she wrote the judgement. Normally, these things are clarified during the proceedings where the witnesses clarify this and that; something that any real witness will do. However, having relied on the testimony from witnesses who had been objected to by the Senior Counsel for giving hearsay testimony, the justice did the job for the plaintiff in order to cross the T’s and complete the narrative for his case.
The case, as mentioned, was a defamation suit that had been filled by the Gem Member of Parliament, Hon. Elisha Odhiambo against one Booker Ngesa. Booker is the National Vice-Chairperson of the Communist Party of Kenya, (CPK) and a constituent of Gem constituency. The two had been fighting with each other after Booker called out the MP for brazen theft of NGCDF funds in Gem Constituency in 2020.
All of this started when one day, Hon. Elisha took to Facebook and congratulated himself and the NGCDF team for completing the construction of an administration block in Masinde primary school in Gem. This project, according to the MP, had cost Ksh 1,000,000 of taxpayers’ money and it was one more thing that had been done to complete his political campaign promises.
Unfortunately, Booker refuted the MP’s claims and reiterated that it was Booker himself who had funded the project for a cost of KES 1.5million back in 2014 as part of his corporate social responsibility and community projects.
The matter came to a head as the two battled it out with accusations of theft being lobbed at the MP as Booker made demands for the public funds to be returned. The spat also attracted the local community who had been witnesses to the construction taking place. A people’s march was held and there were demands for the MP to return the public funds because, well, because the administration block had been built!
With his reputation taking a hit, the MP accused Booker of defaming him and went to court to file charges; which is where we meet the aforementioned Justice Aburili and the two contradicting at the Siaya High Court.
The case before the Justice went in favour of Elisha Odhiambo, who was awarded Ksh 6,000,000 in damages and beyond that, Booker was permanently stopped from making any pronouncements concerning Masinde primary school.
The irony is that, thanks to the community-led activism, the case is currently being heard at the EACC court in Kisumu! The original accusations of corruption, having never been refuted or proven false and with Booker having actually used his own money to construct the administration block and provided evidence to the matter, the case warrants to be heard.
That is why this single case and the ruling by Justice Aburili has created a bit of a mini-furor in the legal community. The reason for this interest is twofold: one, there is an existing precedent on how to manage cases of defamation involving public office holders. The MP being a public official is expected to respond to these questions as is the rights of any Kenyan and any accusations require a form of scrutiny to arrive at the facts of the matter. Otherwise, no public official would ever be held to account for their actions as any accusations would lead to a legal-gag that would shut any public debate or discussions on the matter.
It is the merit of the case and substance of the allegations that have seen this case moving to the EACC. The Ethics and Anti-Corruption Commission is best placed to investigate these matters, just as they are doing at the moment. Therefore, stopping Booker from discussing the case would be deemed premature; and it is deemed premature according to existing precedent that allows matters of public interest to be considered in that light.
Because of the special circumstances around this case – being the matter of public interest in the case to the point that the matter is before the EACC – the law provides for the judge to consider those special circumstances. Notwithstanding the procedural weaknesses and technicalities in the case, the court should have exercised with the greatest effort to protect public interest in this matter before issuing a ruling against the defendant.
The second reason why this issue has gained national interest is because the 28th July 2021 ruling threatens not just the constitutional rights of Kenyan citizens particularly with regard to fulfilling article 33 on the right to freedom of expression. The judgement also jeopardises the ability of Kenyans to ensure that state officers uphold national values and principles of governance, as well the integrity standards as stipulated under articles 10 and chapter six of the Constitution respectively.
In other words, if Booker does not appeal this decision, other state officials may in the future rely on this binding judgment with an aim of silencing any demands for accountability from the general public.
It is important that members of the civil society and legal community pay keen attention to this decision in the interest of the public lest it leads us to the dark days of nyayoism where courts were used to curtail the rights of Kenyans. Weaponizing the judiciary against citizens threatens to stop discussions about the issues of corruption and the corruptions of those who may feel emboldened to indulge in the theft of public resources because, coincidentally, they are in possession of lots of money to use to drag any whistleblowers or accusers from bringing the matter to the attention of the public.
In light of this legal tussle between an MP and a political activist in Siaya, the play is setting up to become either a watershed moment in the future of leadership and ethics in Kenya or it could become a reboot that sees this race to the bottom and political prosecution stopped before it becomes normalized; when the case gets to the court of Appeal.
Unlike a televised drama, this is playing out in real life. The legal and other activist onlookers need to adopt a more active role to pause the slide towards a weaponized judicial system. More than that, Kenyans must be ready for the fall-out if the judgement remains because then, their ability to call out corruption or demand investigation into questionable activities by public officials might be cancelled; unleashing a new era of corruption and zero-accountability.
For now, the show continues as the Senior Counsel and his client have made it clear to the people of Gem and the civil society movement in Kenya that the appeal will go on — and have asked for more players to join them in solidarity.