By Kodi Barth

Believe it or not, the courts may not stop the Press from publishing whatever it wishes to; not without the action threatening freedom of the Press.

Drama is looming, therefore, following a move by Nakumatt’s lawyers to court last Tuesday to stop The Standard Group and the Nation Media Group from publishing "defamatory articles" about Kariuki Muigua & Co Advocates, who represent the embattled supermarket chain.

The case was not thrown out. Neither was it settled. In a story, "Attempt to gag media thwarted", The Standard wrote on Wednesday that Nairobi Judge Alnasir Visram declined to rule "ex parte", without notice to or challenge by the two accused news groups. That is why there is likely to be drama on July 11, when the judge ruled that the case should be heard.

This comes in the wake of recent damaging revelations in Parliament that Nakumatt, the country’s leading supermarket chain, with others unnamed, may be embroiled in colossal tax evasion.

The Standard Group is alleged to have obtained the damaging report before it was tabled in Parliament. It is this report and apparently any other damaging publicity that Nakumatt’s law firm seems determined to stop in its tracks.

This is not a trivial case. By merely attempting to stop the Press from publishing something, Muigua has put in motion a case whose ruling could irrevocably change the way the Press operates. And Judge Visram will be on the spot.

Should he rule in favour of the plaintiff, it would set a startling precedent. It would shake the very foundations on which a free Press is built. Forget the Government’s illegal, barbaric night raid on The Standard Group last March, when Internal Security Minister John Michuki charged that the news group threatened national security. Henceforth, it would be okay for any magistrate to issue an order stopping the Press from publishing whatever any bloke from the streets claimed threatening.

Such a ruling would effectively kill the operation of any independent Press here. And it would reverse the spirit of Section 79 of the Constitution, which expressly gives the Press freedom to "communicate ideas and information without interference".

Besides, Article 19 of the Universal Declaration of Human Rights, to which Kenya appended its signature, claims the right to freedom of expression. It envisages not just the right to receive, but also the right to impart information and ideas.

The very concept of Press freedom is pegged on the culture of "no prior restraint". In countries with long traditions of a free Press, the doctrine of Prior Restraint, as it is known, already drew a consensus. It is the understanding that where courts may seek to enforce a gag order before publication, the Constitution has a heavy presumption in favour of Press freedom.

The International Centre for the Legal Protection of Human Rights broadly outlines how these Western democracies practically forbidden prior restraint, even if they may differ in its application. They dread a violation of their constitutional rights to free speech. For whatever reason, enlightenment and prosperity appear to follow this celebrated freedom.

So, should society blindly trust journalists to be unswervingly level headed? Certainly not! Freedom of the Press, however celebrated, cannot be absolute. It stops at the law. Such a law would be unanimously interpreted as protecting of a higher good. And, yes, where a higher good is in immediate threat, the courts may hand down a prior restraint order. Even then, it must be an absolute rarity, only temporary and in extraordinary circumstances.

And before prior restraint is imposed by a court, there must be an imminent, not merely likely, threat to the administration of justice. The danger must not be remote or even probable, as Muigua’s argument sounded this week. The danger must be immediate. It is the only way to protect this fundamental freedom from an overzealous Government, powerful institutions and ruthless powerbrokers. Perhaps this should be spelt out in law?

bkodi@usiu.ac.ke