In a 2-1 ruling delivered last week, the Court of Appeal judges found that the newspaper failed to discharge its burden to prove that it did not defame Mr. Bigirimana in the 15 articles written about him across three years.
“I find that the [Daily Monitor] in publishing the 15 defamatory stories about [Mr. Bigirimana] for a prolonged period of three years acted in disregard of his rights and their actions warranted punishment. The sum of Shs350 million was, therefore, adequate and I would maintain it,” held Justice Elizabeth Musoke who wrote the lead judgment. The court also maintained the Shs100 million as exemplary damages that had earlier been awarded by High Court Judge Musa Ssekaana.
Justice Christopher Gashirabake concurred with the lead judgment of Justice Musoke. However, Justice Muzamiru Mutangula Kibeedi dissented from the views of his two colleagues. Justice Kibeedi held that the compensatory damages of more than Shs450 million were excessive. He said a total award of Shs150 million for both general and exemplary damages would be reasonable to atone for the alleged reputational damage Mr. Bigirimana suffered.
“Upon reviewing the record of the trial court, I have no hesitation in finding that the trial judge did not address his mind to the critical consideration relevant when assessing an appropriate award of damages in the circumstances of the case. As a result, he awarded sums very high in the circumstances,” Justice Kibeedi held.
“I am of the view that while the court has a duty to make orders which intend to enforce responsible journalism and to protect the reputation of individuals by penalizing any transgressions appropriately, it should not, in the process of penalizing, make awards whose net effect is to kill the media houses economically and by extension, reduce the space for media freedom and expression in the country,” he added.
In further justifying the reduction of the monetary award to Mr Bigirimana, Justice Kibeedi said his reputation was never injured by the said defamatory articles as claimed.
“In the instant matter, the respondent (Mr. Bigirimana) was at the material time the permanent secretary and accounting officer in the Office of the Prime Minister (OPM) when the defamatory articles started being published,” Justice Kibeedi started, adding: “However, adverse publications did not stop the President from renewing the respondent’s contract as permanent secretary and deploying him to continue to serve in ministries and government bodies where the President deemed him most relevant at any given time.”
Justice Kibeedi proceeded: “His record of service at the level of permanent secretary has never been broken at all in spite of the negative publications made by the appellant (Daily Monitor). To me, that implies that the respondent’s reputation in the eyes of his appointing authority is minimal. This is not to imply that the respondent’s reputation is relevant only in his relationship with his appointing authority.”
The judge also trashed Mr. Bigirimana’s evidence that some of his contemporaries—including Agriculture minister Frank Tumwebaze, one Sam Bitangaro, and his lawyer, Frank Kanduho—changed their perception of his character upon reading the said defamatory articles against him. Justice Kibeedi also wondered why the court could not order the newspaper, which published the allegedly defamatory articles against Mr. Bigirimana, to clean the mud thrown at him instead of focusing on monetary compensation.
The judge argued that monetary awards, though important, are not the best way of cleaning someone’s soiled reputation. The lawsuit arose from reporting that this newspaper did about widespread corruption at the OPM that has not been denied. Mr Bigirimana was the accounting officer at the time.
