Is the Foreign & Commonwealth's Cayman Governor Suggesting Media Censorship?

Gov’s office argues media ‘unregulated and uncontrolled’

Governor Kilpatrick

Records related to the Operation Tempura police corruption investigation in the Cayman Islands should not be released, partly because those who might report them are not regulated or controlled with regard to the publication of such claims, according to the governor’s office arguments put forward in submissions to Cayman’s information commissioner.

Precisely what type of regulations or controls should exist in the Cayman Islands news media – at least in the view of the governor’s office - were not discussed in a decision Acting Information Commissioner Jan Liebaers released Friday. That decision ordered the governor’s office to make public nearly all of a 2010 complaint filed over the investigation by Operation Tempura’s former legal adviser and the then-governor’s subsequent evaluation of it.

The governor’s submission to Mr. Liebaers in arguing against disclosure of the Operation Tempura records noted that the dangers of releasing a complaint that it believed would falsely undermine the Cayman Islands judiciary were greater because "the dissemination of allegations through the media in the Cayman Islands is wholly unregulated and uncontrolled."

"There is substantial risk that the coverage of the allegations will not be properly balanced by the findings contained in the lengthy report [which evaluated the complaint]," the governor’s office submission stated. Mr. Liebaers said previous rulings from the information commissioner’s office had dealt with this subject.

"Questions of access to a record held by government cannot be concerned with how that record might be used in the future," Mr. Liebaers noted, quoting from a previous open records case that was appealed before the information commissioner’s office. "This would be a shortcut to censorship and would contradict the fundamental objectives of the Freedom of Information Law.

"Either a record is exempt under the law or it is not, but in either case, any presumed future use of a record can have no bearing on its disclosure."

Mr. Liebaers went on to state that in a democratic society like the Cayman Islands, the press "has every right to express their views freely" including views that might be critical of government.

"It seems futile to wonder how this case would play out if the media were ‘regulated and controlled’," the information commissioner continued. "No doubt this would reduce the disclosure of information by government considerably and increase the number of articles in the media favorable to government, but that is not the constitutional and statutory framework within which this reconsideration is taking place." More

 

Freedom of Expression part of our Bill of Rights under the Constitution of the Cayman Islands

Expression

11.—(1) No person shall be hindered by government in the enjoyment of his or her freedom of expression, which includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his or her correspondence or other means of communication. (2) Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society— (a) in the interests of defence, public safety, public order, public morality or public health; (b) for the purpose of protecting the rights, reputations and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telecommunications, posts, broadcasting or other means of communication, or public shows or entertainments; or (c) for the imposition of restrictions on public officers in the interests of the proper performance of their functions.

 

© 2014

The Mau Mau may rewrite the history of the British empire

There was dancing and praying in the streets of Nairobi earlier this month when three elderly Kenyans won an unexpected legal victory in London.

They had been granted the right to sue the British government over the horrific ordeals they suffered during the Mau Mau insurgency, although the abuses had been inflicted on them more than half a century earlier.

Even before the judgment had been formally handed down at the royal courts of justice, however, and the claimants and their families informed of their achievement, the Foreign and Commonwealth Office had decided on its response: it was going to appeal the decision, one more set-back for those old people who had already been battling through the courts for more than three years.

There was widespread dismay among many who had been observing the case. The FCO's lawyers had already conceded in court that the accounts given by the three Mau Mau veterans – of castration, rape and savage beatings – had been honest accounts, and that senior British and colonial officials had been aware of the ugly truth about daily life in the prison camps of 1950s Kenya. So why was the government continuing to resist their claim for compensation, and an apology?

Some wondered whether the FCO was, with supreme cynicism, simply dragging out the process, waiting for these troublesome litigants, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara, to die. Already a fourth claimant, Susan Ciong'ombe Ngondi, had passed away, aged 71.

A explanation is to be found in the FCO's own statements after its decision was announced.

While stressing that they "understand the pain and grievance" felt not only by detainees but also those who suffered the terrible violence that the Mau Mau inflicted upon others, the FCO described the ruling as disappointing. "The judgment has potentially significant and far-reaching legal implications. The normal time limit for bringing a civil action is three to six years. In this case, that period has been extended to over 50 years despite the fact that the key decision-makers are dead and unable to give their account of what happened. Since this is an important legal issue, we have taken the decision to appeal."

But having already conceded the use of torture during the seven-year counter-insurgency operation in Kenya, what would the FCO have to fear from the legal implications of a ruling that has allowed a claim for compensation from Britain's recent colonial past?

The three Mau Mau veterans won their case, in part, because last year their claim exposed the existence of the Foreign Office's secret annals of the end of empire, an archive stuffed with many of the documents that recorded how confused and bloody the withdrawal had been (but not all, as some of the most damning colonial-era papers were destroyed).

The foreign secretary, himself a historian, has to his great credit pledged that every surviving document will be transferred to the National Archives at Kew. But could it be that FCO officials have reason to believe that this archive, hidden from view for decades, may contain more documentary evidence of abuses that could result in claims through the high court?

Is there a realisation at the FCO that the tortures inflicted on the Mau Mau – largely concealed at the time through official secrecy and ministerial lies – then migrated to Cyprus during the Eoka insurgency, where they were brutally applied and always similarly denied? Or that they then travelled to Aden, where they were during the four years of conflict that preceded British withdrawal in 1967? More