Legal ruling buys BBC time to find its smoking gun
The landmark court order sets a precedent for how Kenyan cases proceed when vital evidence lies abroad.
Robert Amalemba in Nairobi
Kenya’s appeal court has paused defamation proceedings against the BBC, after a ruling that may redefine how Kenyan litigants and defendants obtain evidence from outside the country.
At the centre of the dispute is a 2015 BBC investigation, The Secret Bribes of Big Tobacco. It exposed alleged bribery of politicians, government officials, and tax authorities by British American Tobacco (BAT). National Assembly speaker Moses Wetang’ula was among them, and it was he who brought the case against the BBC.
The BBC said it needed Kenyan court assistance to access vital documents held in England, where BAT is based. The court ordered a pause on the case until the BBC could obtain this evidence.
With that decision, the three-judge bench has set a precedent that compels Kenyan courts to tweak trials proceedings for parties that need to pursue crucial evidence held overseas. Such legal wiggle room would have been useful during the Kenyan 2017 presidential election petition, when data that was similarly needed as evidence was held on overseas servers.
“I think jurisprudence is evolving as Kenyan courts increasingly engage with multinational actors,” said advocate Innocent Ondieki. “The winner will be justice – not the BBC or Wetang’ula.”
Evans Teddy, a coordinator at the Media Council of Kenya, said the ruling would strengthen journalists’ ability to conduct cross-border investigations. Joel Gitali, chair of the Kenya Tobacco Control and Health Promotion Alliance, said the ruling was “a fair step” towards uncovering the truth about the tobacco industry’s possible underhanded influence in the country.