Libel case fails: court finds election was at stake and media had ‘duty to publish’

7 August 2020 · Carmel Rickard

Issues around elections continue to be heard by the courts. This time the case concerned a scandal that was brewing in 2002, about the malfunctioning IT system that was supposed to compile a national voters’ register for Uganda’s then pending election. Members of the consortium that seemed unable to sort out the register brought a defamation action against the publication that broke the story. But the court found the report was truthful and accurate and that the public needed to know the information as the success of the election was at stake.

Read judgment

A prominent businessman from Kampala and a company he founded have failed in their attempt to sue The East African newspaper over a 2002 article related to preparations for the then-pending Ugandan elections.

Frank Katusiime and Rank Consult Uganda sued the newspaper’s editor as well as the media group to which the paper belonged, for ‘aggravated/exemplary and general damages’ for libel. They wanted a conspicuously placed front page apology, interest at 25 % on all awards by the court, and legal costs.

As you would expect in a defamation case, Katusiime said the article about which he complained was false, unfounded and contained innuendo calculated to lower the high esteem in which he was regarded by society. Further, the story was aimed at increasing the paper’s circulation.

Duty

The editor of the paper, on the other hand said the story was neither false nor malicious. What was published was true, accurate and printed without malice. It was written honestly and on a matter of public interest that the paper had a duty to disclose.

So far it sounds like most defamation cases. But what was the story and why did Katusiime believe it was defamatory?

Of the two witnesses for the paper one testified that he was part of a team of IT experts called in to ‘rectify the mess that had been created by [Katusiime’s] company in preparation for a national election register. The other witness for the paper was a journalist who said the story was about a possible failed national voters’ register system that would affect the 2002 elections if not fixed. Its publication was truthful and in the public interest.

Conflict of interest

The original report mentioned that Katusiime was the head of a joint venture contracted to integrate software and hardware supplied by other companies. It said that Uganda’s official responsible for investigating corruption had examined the situation and concluded that there had been a conflict of interest involved.

The story also raised concerns about the effectiveness of the equipment that had been supplied and claimed that corruption investigation officials said that ‘conflict of interest and irregularities in tendering at the Electoral Commission were the principle reasons for the increase of the cost of the project from USD6m to more than USD17m.’

It further claimed that the voter’s register still wasn’t ready, 16 months after the consultants had been engaged and that delays in the project were partly to blame ‘for the muddled local government elections earlier that year.’

'Sabotaging'

The court continued to give details from the report: during trials of the system installed by Katusiime’s joint venture, the data processing staff of the commission discovered a high number of ‘misinterpretation of characters’ and that this was made worse by a lack of comprehensive documents detailing all aspects of the system.

The report said the consultants didn’t really know what they were doing and a government procurement officer had found none of the bidding firms was qualified. A number of other devastating criticisms were reported in the story, and it concluded with a comment from the consortium to the effect that the commission staff were ‘sabotaging’ the project.

Judge Lydia Mugambe who heard the case, said the context of the publication was important. It was 2002, elections were about to be held and preparation for the critical voters’ register was running behind schedule.

Splitting hairs

Matusiime agreed that his venture was part of the consortium that was to prepare the register, and that he was the team leader of the consortium. But, said Judge Mugambe, he was splitting hairs in his evidence. Also, he did not satisfactorily counter the evidence of the IT expert who testified on behalf of the paper and said that he had been part of a team of experts that had to rectify errors arising from the consortium’s work.

‘Put simply, the publication broke the problems and delays related to the voter register system which Ugandans and the world needed to know about in order to have timely rectification.’ After the story was published, the IT witness called by the paper, together with a team of experts, was brought in to fix the errors. The ‘scandal of a failed voter system and a resultant failed or problematic election was averted.’

The story was thus in the public interest, said the judge. On receiving the information ‘the publisher had a duty to tell it to the public.’

Irked

The content of the publication was fair and truthful, and it raised other important issues. Matusiime and his company ‘may not have wanted the story to run and indeed may have been irked by its publication. However, this is irrelevant for defamation. The legal test is more about other right-thinking members of the public who read the story.’

Judge Mugambe said she was satisfied that though the plaintiffs did not want their names to appear in such a story, with its overtones of scandal, in fact the story was based on a truthful investigation and was devoid of malice. It conveyed matters of public interest that the paper ‘had a duty to publish and the public, to receive.’

She therefore dismissed the case, and awarded legal costs in favour of the paper.

Carmel Rickard

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