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06NAIROBI3726 2006-08-24 14:48:00 CONFIDENTIAL Embassy Nairobi
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1. (C) Summary: An almost one-year old legal case against
two journalists charged with publishing an "alarming" article
has been quietly dropped by the government of Kenya (GOK).
But the GOK is pursuing another legal case against other
journalists under the same law, despite the risk of negative
publicity associated with the related raid on the Standard
newspaper. According to a journalist whose case was dropped,
that action was part of a deal in which he in turn dropped
his false arrest suit against the government. This case and
the raid on the "Standard" in March 2006 were disturbing
attacks on press freedom. End Summary.

2. (U) Without explanation, the Kenyan prosecutor announced
on August 16 that he had been instructed by the Attorney
General to withdraw the case against two journalists from the
daily "Kenya Times," who were charged with publishing an
"alarming" article. The withdrawal of the case was reported
by Reuters and the local press.



3. (U) In the midst of the heated constitutional debate
preceding the November 2005 referendum, the Sunday September
25 edition of the Times, a paper owned by the opposition
party KANU, had carried an article on the opinion/analysis
page by staff writer David Ochami entitled "Coups in Africa
do not occur out of nothing." The op-ed suggested that a
coup in the country was possible, that a coup would not
necessarily be an unwelcome development, and that "the
political process is no remedy to Kenya's paralysis and
backwardness." Two days later, undercover police arrested
Ochami, and subsequently his editor Onyango Omollo as well.
Charged with writing and publishing an "alarmist" story, the
two were released on bail, after a day of detention and
questioning. Ochami was not cowed: his next op-ed was
entitled "Journalists should not capitulate to the state."

4. (U) Several months later, in March 2006, the Standard
newspaper published a story alleging that a secret meeting
had taken place between the President and LDP leader and
presidential hopeful Kalonzo Musyoka. Soon after the story
was published, there was an official police raid on the
Standard by hooded men who seized computers and theatrically
burned copies of the paper on the sidewalk outside. The raid
generated a firestorm of criticism, especially when it was
reported that it involved the comically sinister Artur
"brothers," supposed Armenian businessmen who had clear
connections to the President's inner circle.

Ochami's Thoughts on His Case--and the Standard



5. (C) Kenya Times writer Ochami (protect) told poloff
August 24 that he and Omollo had been charged under Section
66 of the penal code, which forbids the publishing of
"alarming" articles, and under Section 33, which criminalizes
the publishing of "rumors or false news." The dropping of
the charges, he said, was part of a deal negotiated by
lawyers after he and Omollo sued the government several
months ago for false arrest. In return for the government's
dropping its case against him, he dropped his lawsuit. He
said similar cases have gone on for ten years, so his lawyer
advised him to accept the deal. Ochami believes the
government would have lost its case against him in the end,
which would have made it easier to win his false arrest case,
but he decided it was not worth a decade-long fight. Ochami
said his case was highlighted by Amnesty International in a
report this spring, as well as by "Reporters without Borders"
and other media fora, and he believed the government felt
that pressure. His notebooks, music cassettes, and
correspondence that were seized when he was arrested have
still not been returned.

6. (C) Ochami said the case against him was intrinsically
weak because what he wrote was an opinion piece, whereas the
penal code language is aimed at news stories. However, the
Standard journalists are charged under the same sections of

the code, he said. The government's case is stronger in that
case because what the Standard published was a news story,
alleging that the President had met with LDP member Kalonzo
Musyoka. Ochami pointed out that the court case against the
Standard journalists began the same day his case was dropped.



7. (SBU) Clearly, the government would have done better to
simply ignore Ochami's hyperbolic original op-ed. Kenya's
laws outlawing the publishing of "alarming articles"
containing "rumors or false news" are holdovers from the bad
old days, and acting on such laws was both politically clumsy
and a strike at freedom of the press. That the government is
continuing its case against the Standard journalists after
the waterfall of negative publicity that followed the raid is
troubling, and out of line with the significant improvements
in press freedom since the end of the Moi era. END COMMENT.