The case: Macharia & 6 Others v Standard Group & 4 Others, SC Pet 13 (E015 of 2022)  

KI’s role: KI represented the appellants in this case, seven children accused of arson and had their pictures and names published by the Standard Group, Royal Medial Group, Good News Mission Church, and Nation Media Group. 

What the case is about: In November 2012, seven children were accused of setting fire to their school and were charged in a Magistrate’s Court in Murang’a. The four media houses published the children’s names, descriptions, and images in reporting on the event. Katiba Institute filed a petition on behalf of the seven children and their families in 2013, alleging that the media houses had violated the children’s right to privacy and their obligation under Article 53 of the Constitution to ensure that, in every matter concerning a child, that child’s best interest be of paramount importance. The Petition also asserted that the publication of the children’s names and images violated international treaties to which Kenya is a signatory. 

The High Court dismissed the claims, as did the Court of Appeal. In 2022, Katiba Institute filed this appeal with the Supreme Court. 

What happened: On 8 September 2023, the Supreme Court held that the media houses violated the right to privacy (Article 31(c)) and to have a child’s best interests considered as paramount importance (Article 53(2)) when they published the names, images, and voices of six children who had been charged with arson. In doing so, the Supreme Court overturned judgments from the High Court and Court of Appeal, criticising both courts for prioritising the public’s interest in publishing images of children in a criminal trial over the child’s best interests, as stipulated in Article 53(2) of the Constitution. 

The judgment emphasises the importance of a child’s best interests in all matters concerning them. The Supreme Court noted that the Constitution, international law, and the Children’s Act require that the child’s best interests be factored into any decisions that may affect them. In the criminal justice context, the Children Act establishes special procedures and courts to protect vulnerable children during trials. 

The media houses argued that they acted in the public interest and had a right to publish the information under Articles 33 through 35 of the Constitution, which guarantees the rights of freedom of the media, freedom of expression, and access to information. The Supreme Court acknowledged the importance of those rights and the apparent conflict between the rights of the media houses and the children’s rights. 

The Supreme Court turned to Article 24 to resolve the conflict between the rights raised by media houses and the rights of minors to privacy and their best interests. Article 24 requires a two-step criterion for limiting constitutional rights: the limitation must be provided by law, and it must be reasonable and justifiable in an open and democratic society, considering several factors listed in Article 24(1)(a) to (e). As for the first step, the Supreme Court found that the limitations imposed on the publication of the images and names of children in conflict with the law were established under the Children’s Act and Article 50(8) of the Constitution. For the second step, it determined that the limitation was measured and allowed the media to report on the incident effectively. As a result, it concluded that the limitation on the rights of the media houses to publish the names and images of the children was reasonable and justifiable in an open and democratic society, considering the human dignity of the children concerned. 

The Court noted that by publishing the names and images of the children, the media houses had ‘fail[ed] to conform to the constitutional, statutory and ethical reporting standards’ by publishing the names and images of the children. It also faulted the Magistrate Court for not following standard procedures in children’s matters: to close the Court to other people while the children’s matter was heard. In sum, the media houses and the Magistrate Court failed to fulfil their professional obligations to act in the children’s best interests. 

Next, the Supreme Court turned to whether the children should be awarded damages for the violations. The Court noted that damages for constitutional rights violations differed from damages in other cases. Once a petitioner has proved a violation of their constitutional rights, they do not necessarily need to prove damage or loss to be entitled to remedies. Instead, once a constitutional violation is proved, ‘the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation’. Despite this finding, the Court did not award damages to the children, arguing that the appeal did not ask that they do so. 

Finally, the Supreme Court offered seven guidelines for responsible journalism when reporting cases involving children in conflict with the law. These guidelines summarised existing international, constitutional, and statutory law and emphasised protecting children’s privacy and dignity. 

Why it matters: There is a lot to unpack in this judgment, as highlighted below: 

The rights of children are placed at the forefront. The reason Article 53(2) requires that the interests of children be of paramount importance is that children have no voice in policy and law-making. Because they cannot speak for themselves, it is all too easy to overlook their needs and interests. Article 53(2) helps ensure that, even if children cannot advocate for themselves, everyone must ensure that they have considered children’s best interests when making decisions. The Supreme Court emphasised that everyone means everyone. Even though they are not State actors, the media houses still have a constitutional duty to prioritise the child’s best interests. We all do. 

The balancing test under Article 24 matters. The Constitution recognised that fundamental rights and freedoms often conflict with one another. For example, one person’s right to a clean and healthy environment may affect another person’s right to property. Article 24 tells the State that if it wants to limit a right, it must explain why. And it gives the Court a chance to weigh the competing rights and balance them against one another. Although many cases require the courts to balance competing rights, Article 24 has received surprisingly little attention. But not any more. This judgment underscores the importance of Article 24 and signals to advocates and judges that it should be used whenever fundamental rights and freedoms conflict with one another. 

Damages for violations of the Constitution. Although there is room to quibble with the Court’s ruling on whether the appellants should have been entitled to damages, the Court made a very important holding: people who can prove a violation of fundamental rights or freedoms are entitled to damages, even if they do not prove that they have been harmed as a result of the violation. This holding is important because it recognises that a violation of a fundamental right or freedom not only harms the individual but also harms the public and the State. Damages are necessary to reflect the social and institutional harm that occurs when fundamental rights and freedoms are not respected. Public interest lawyers should take note of this holding when they ask for remedies from the courts. 

Will media houses take the judgment seriously? The Supreme Court thought that the role of the media was sufficiently important to provide its own guidelines for reporting on issues involving children in conflict with the law. Interestingly, although the media houses were happy to publish news of the arsons, they gave little, if any, attention to this judgment. It will be interesting to see how the Media Council of Kenya, responsible for setting media standards and ensuring compliance, will incorporate the Supreme Court decision into its trainings and policies. 

What’s next: After more than a decade, the legal battles have ended. But the advocacy for children in conflict with the law never stops. Civil society, NGOs, the media, and the State must ensure that this judgment is taken seriously, and that children’s rights are prioritised.