MUTUA: Physical attacks on Miguna Miguna are barbaric

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By MAKAU MUTUA
Posted  Saturday, September 1  2012 at  19:20

IN SUMMARY

• There can’t be any excuse for a physical attack on any person because of their speech. This is an open and shut case – it’s totally unarguable.
• It doesn’t justify any physical attacks on him, but I would urge him not to insult the intelligence of Kenyans as he promotes his book. Keep it clean, Mr Miguna.
• Those upset by Mr Miguna’s book should take a leaf from me. Mr Miguna devotes more than 10 pages on me in his book. He doesn’t have a single kind word to say about me.

I know some people think he’s “getting his just desserts”. I am not one of them.

I was shocked to see TV footage of the man with the “same name twice” – Miguna Miguna – in “full flight” from a bunch of thugs.

In the indignity of the melee, Mr Miguna lost his trademark Muslim cap revealing a nearly bald pate. Also gone were his eyeglasses and a shoe.

It was Mr Miguna like the public hasn’t seen him before. I thought I was watching a movie – only it was all too painfully real.

Let me state the bottom line up front – such barbaric conduct is impermissible in a civilised society. Mr Miguna has every right to promote his book unmolested.

DPP Keriako Tobiko must order the arrest and prosecution of Mr Miguna’s attackers pronto. He can’t claim to lack evidence because it was all caught on tape.

In one chilling video clip, a particularly aggressive man wearing a sports shirt emblazoned “Destroyer” is seen upsetting chairs and tables while charging at Mr Miguna. He 
shouldn’t be too hard to locate and put in custody.

He and his gang of thugs acted with impunity. It doesn’t matter what Mr Miguna wrote in his book, or says in public.

There can’t be any excuse for a physical attack on any person because of their speech. This is an open and shut case – it’s totally unarguable. There are no rebuttals, or 
counter-arguments.

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Mr Miguna’s book, Peeling Back the Mask, has upset many people. This is also unarguable. But the answer to the book isn’t physical violence against his person.

In a democracy, the answer to “bad speech” is “more speech”. That’s why I supported the Nyando villagers when they demonstrated against Mr Miguna.

They burnt his effigy and buried him in a mock funeral. Mr Miguna was wrong to attack the villagers for exercising their constitutional rights.

That’s permissible free speech – so long as they don’t cross a line and resort to physical violence against anyone, or any private or public property. Nor should he, or his 
relatives and friends, be menaced or threatened.

Speech – whether abusive or not – is permissible. It’s true there are certain limits to free speech in a democracy. But those limits are so narrowly carved that the benefit of the doubt lies with the speaker, not the censor.

Clearly, defamation – slander and libel – laws are one limitation on speech. But even here, the legal standard of scrutiny is very high.

“Malice” is often required as proof of defamation, while “truth” is a complete defence. The public’s interest to know sets a high bar for claims of defamation by public figures.

Even when a false claim is made against a public figure, the plaintiff must show that it’s dishonestly made. That’s why it’s difficult to sue Mr Miguna for alleged defamation in Peeling Back the Mask.

I am sure these legal niceties are lost on the goons attacking Mr Miguna. That’s why Mr Tobiko must sue them to remind them they don’t live in a lawless society.

There have been claims in some quarters – unsubstantiated – that those attacking Mr Miguna are ODM hirelings.

I think this is a preposterous charge. But for the avoidance of doubt, I think ODM should condemn – without equivocation – any attacks on Mr Miguna.

The party must publicly affirm Mr Miguna’s right to criticise it and PM Raila Odinga. It must denounce the attackers – if any – who are connected to, or are sympathetic, to ODM or Mr Odinga.

Silence on the part of ODM is not an option on this issue. It’s true that Mr Miguna’s book is a cheap political screed. It was written out of pique and anger. I believe he meant to settle scores with Mr Odinga when he was given the boot.

Mr Miguna exhibits ungoverned anger when he speaks about Mr Odinga and his supporters. In Kisumu last week, he had to be rescued by police after he called Luos “robotic voters” for supporting Mr Odinga.

This is very close to shouting “fire!” in a crowded theatre. False bravado and braggadocio can only bring him grief.

It doesn’t justify any physical attacks on him, but I would urge him not to insult the intelligence of Kenyans as he promotes his book. Keep it clean, Mr Miguna.

Those upset by Mr Miguna’s book should take a leaf from me. Mr Miguna devotes more than 10 pages on me in his book.

He doesn’t have a single kind word to say about me. His language is over-the-top and egotistical. He is pure, all-knowing, and all-seeing.

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I think he’s wrong and deeply conceited, if not pathologically insecure. But I have no desire, or inclination, to wish him ill.

Quite the contrary, I found some of the things he wrote about me comical, even entertaining. But even if I was upset, I wouldn’t feel inclined to hurt him.

I wouldn’t even sue him. I think public figures in a democracy must learn to accept criticism, whether fair, true, hurtful, or not.

I end where I started. The attacks on Mr Miguna must stop. Those responsible must be prosecuted. I think Mr Miguna’s book – and the violent responses to him – has exposed a large democratic deficit in Kenya. I find Mr Miguna’s book very useful and timely in this sense.

What does it say about a society that can’t handle a sensational political screed? Will Kenyans be able to handle a more serious matter, like the outcome of the next polls? Let’s take this as an object lesson.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.