Why court fined Githongo Sh27m for slander despite his immunity

Former anti-corruption tsar and whistleblower John Githongo had immunity from prosecution regarding his role in unearthing corruption in the government.

So why did the court rule he pays Sh27 million to former Cabinet Minister Christopher Ndarathi Murungaru for maliciously linking him to graft over 10 years ago?

Mr Githongo had told the court that he took steps as the Permanent Secretary in charge of Governance and Ethics to forward the exposé to President Mwai Kibaki and the director of the anti-corruption commission. He said that he authored the letter addressed to the president in 2005 “after I had resigned from my job and left the country in a huff for fear of my life.”

He argued before High Court Judge Joseph Sergon that where a private citizen makes a report to the anti-corruption commission or to the president as an  informer, one is immune to demands for damages and that the dossier cannot, therefore, form the basis of a defamation suit against him.

Further, that as a PS in charge of Ethics and Governance, he had a legal, moral and social duty to forward the information to the president and director of the anti-corruption body even.

Justice Sergon agreed with him but pointed out shortcomings that made him personally liable to pay the damages that Mr Murungaru sought.

The judge said there was evidence that Mr Githongo caused the letter he had sent to the President and anti-graft body to be published by media houses, both in print and electronic.

For instance, he personally gave his story to Michela Wrong and even read the manuscript of the book titled It’s Our Turn to Eat, and approved it for publication.

“Mr Githongo further republished the offensive publication when he granted interviews to various television stations.

“In the circumstances, the defences of qualified privilege and public interest are not available to him,” Mr Sergon said.

The judge added that the defence could have only been available to him had he restricted the dossier’s dissemination to the President and the anti-corruption commission director.

The publication depicted Mr Murungaru as one who engaged in corruption, lacked integrity and was dishonest.

It also portrayed him as the mastermind of the, “Anglo-Leasing type of contracts,” the judge said, adding, Mr Githongo presented no evidence linking the former minister to corruption.

“Therefore, the content of the dossier in the absence of evidence to establish their truthfulness or justification means that the publication is and was defamatory to Mr Murungaru,” the judge ruled.

In particular, Mr Githongo had admitted that he was not aware of Mr Murungaru being charged with any corruption-related cases; he was not aware of any monies being traced to Mr Murungaru’s accounts; and that he had told  President Kibaki that Mr Murungaru’s colleagues told him that the minister was corrupt, but they gave him no evidence.

“In light of Mr Githongo’s testimony, it is clear that there was no factual basis to assert that Mr Murungaru was engaged in corruption.

“It cannot be stated by any stretch of imagination that Mr Githongo’s job description as a permanent secretary mandated him to defame Mr Murungaru. Therefore, he is personally liable for his actions,” Mr Sergon ruled in a verdict dated May 2, 2019.

The judge also said there was evidence that as a result of the publication, Mr Murungaru’s supporters, business associates and friends lost confidence and faith in him.