Why judges treat newspaper stories as hearsay, inadmissible as evidence

Monica Wangu Wamwere (clutching a folder) and Prof Wangari Maathai (in a kitenge) and other activists celebrate bringing down a fence at Uhuru Park on February 2, 1992. File | Nation Media Group

What you need to know:

  • Judges say a newspaper story is hearsay (rumours) because the sources are not present in court to establish the truthfulness or credibility of the story and be cross-examined.

Would you believe your butcher if he tells you the meat is soft? A young woman in a 47-second promo for the Daily Nation on YouTube says she does. “I even have my butcher’s number on quick-dial, my friend.”

Then the voice-over: “What do you believe? Lies have the power to change you. Believe the truth. Read the Daily Nation. The truth.” On Facebook, the Nation ad, “The Truth”, predominates: “The Truth will make you move” is the general theme.

I don’t know the impact of “The Truth” ads on readers. But even long before their advent, I’ve had to deal with readers who move heaven and earth to have their stories on their issues and concerns with the authorities or other people published in the Nation, presumably because the Nation is the truth teller.

They believe that getting their stories published in the Nation because that act alone legitimises the stories; it makes them more believable and they can use them in their battles, including court cases.

Editorial justice

I’m faced with a case in which the complainant says the Nation has denied him “editorial justice” by failing to publish his story regarding a “scandalous theft” of his intellectual property while in the custody of public officers.” He now claims the Nation, by not publishing his story, no longer serves “The Truth”.

I’ve another case that has been going on for more than two years. In March 2018, a reader called to say he wanted his story about his mother who wanted to kill him published.

He also said his mother was a sorceress who engaged in incest. I don’t prejudge stories, so I passed on his request to the News Editor.

However, it turned out the story was unprintable because it was defamatory and in poor taste. He made the rounds in all the media houses but none would touch his story.

“Twenty-two months ago, I embarked on a journey to get my story to run,” he told me on October 11. “Today, I’ve hang up my boots but I’m now totally convinced even the stories that run in newspapers people bribe for them to run. Nitangoja Mungu sasa (I leave the matter to God).”

I don’t really understand why readers push for such stories to be published. Perhaps if they knew courts generally regard newspaper stories as out-of-court declarations that can’t be admitted as evidence, they wouldn’t be so insistent.

Judges say a newspaper story is hearsay (rumours) because the sources are not present in court to establish the truthfulness or credibility of the story and be cross-examined. Many cases have been lost in court because the complainants depended on newspaper stories as evidence.

Human rights

One of the reasons Monica Wangu, the mother of the famous politician and former political prisoner Koigi wa Wamwere, lost a Sh50 million compensation claim for torture and human rights abuses was because the Court of Appeal dismissed her case on June 28, 2019 as she relied on newspaper clippings to support her own testimony.

There are many other such cases.

Although Section 86 of the Evidence Act provides that newspapers are one of the documents whose genuineness is presumed by the court, a statement of fact contained in a newspaper is merely hearsay, the Court of Appeal said. It’s, therefore, inadmissible as evidence in the absence of the maker of the statement appearing in court and testifying under oath.

“Even if newspapers are admissible in evidence without formal proof, the paper itself is not proof of its contents. It would merely amount to an anonymous statement and cannot be treated as proof of the facts stated in the newspaper,” the court ruled.

The Public Editor is an independent news ombudsman who handles readers’ complaints on editorial matters including accuracy and journalistic standards. Email: [email protected]. Call or text 0721989264.