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if what I am saying is true, does it count as defamation?

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Introduction

Defamation in Kenya is governed by both statutory law and common law principles. The primary statute dealing with defamation is the Defamation Act (Cap 36 of the Laws of Kenya). Additionally, the Constitution of Kenya, 2010, provides for the right to freedom of expression under Article 33, but this right is not absolute and is subject to limitations, including those related to defamation.

Definition of Defamation
Elements of Defamation
Truth as a Defense
Limitations and Exceptions
Conclusion

1. Definition of Defamation

Defamation is defined under the Defamation Act (Cap 36) and common law as the publication of a false statement that injures a person's reputation. Defamation can be categorized into two types:

Libel: Defamation in a permanent form, such as written statements, pictures, or broadcasts.
Slander: Defamation in a transient form, such as spoken words or gestures.

2. Elements of Defamation

For a statement to be considered defamatory, the following elements must be established:

Publication: The statement must be communicated to at least one person other than the plaintiff.
False Statement: The statement must be false. Truth is a complete defense to defamation.
Injury to Reputation: The statement must harm the reputation of the plaintiff, causing them to be shunned, avoided, or exposed to hatred, contempt, or ridicule.
Fault: The defendant must be at fault, either through negligence or malice.

3. Truth as a Defense

Under Section 14 of the Defamation Act (Cap 36), truth is a complete defense to a defamation claim. If the statement in question is true, it cannot be considered defamatory, regardless of the harm it may cause to the plaintiff's reputation. The rationale behind this is that the law does not protect a person's reputation if it is based on falsehoods.

Section 14 of the Defamation Act: "In any action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defense of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges."

4. Limitations and Exceptions

While truth is a defense, there are certain limitations and exceptions to consider:

Public Interest: Even if a statement is true, it must be published in the public interest. Statements made with malice or with the intent to harm, rather than inform, may not be protected.
Qualified Privilege: Certain statements made in specific contexts, such as parliamentary proceedings or judicial proceedings, are protected under qualified privilege, provided they are made without malice.
Absolute Privilege: Some statements are protected under absolute privilege, such as those made during parliamentary debates or in judicial proceedings, regardless of their truth or intent.

5. Conclusion

In summary, if what you are saying is true, it generally does not count as defamation under Kenyan law. The truth is a complete defense to a defamation claim, as stipulated in Section 14 of the Defamation Act (Cap 36). However, it is essential to consider the context in which the statement is made and whether it serves the public interest. Statements made with malice or outside the scope of qualified or absolute privilege may still be subject to legal scrutiny.

By understanding these principles, you can better navigate the complexities of defamation law in Kenya and ensure that your statements are both truthful and legally protected.