Justice Sankale Ole Kantai was arrested on February 21, 2020 after evidence emerged that he had been colluding with Sarah Cohen, a key suspect in the Tob Cohen ongoing murder case.
While the Sankale case captured the public attention with its makings of an Oscar drama it raised controversy in another very different sense.
This had to do with how evidence of the Judge's relationship with Sarah Cohen came to the public's eye: an obscure article buried in the pages of the Nation titled ‘Intriguing tale of judge and murder suspect’ on Friday 21, 2020.
In the article, the daily alluded to the collusion of a senior judge and a murder suspect, and quoted text messages shared between Justice Sankale and Sarah Wairimu.
It is the release of these texts that raised a different kind of uproar with notable public figures criticizing the daily for publishing what it termed court evidence.
One of these was former Chief Justice, Willy Mutunga who wondered whether the publication had infringed on Sankale's rights.
"Is the Daily Nation in breach of the right to privacy? Reporters also get intel from investigators raising the issue of the right to a fair trial," Mutunga questioned.
Kenyans.co.ke sought to answer these questions and we reached out to the Media Council of Kenya to get their perspective on the case. We were directed to a comment they had done on the same in the Media Observer on Monday, February 25, 2020.
The article supported the Nation piece providing that the media had been granted the role of providing checks and balances for the public.
“A judge is a public servant. What he does with public property becomes the business of citizens, and the media has a role to play the watchdog.”
The Council further justified that the article stating that the nature of the case required the media to inform the public.
“A judge is the highest arbiter, to whom citizens run for justice. He cannot be caught allegedly aiding any party in a court trial, much less fraternizing with a criminal suspect. It could be grounds for miscarriage of justice and a breach of public trust. And the public has a right to know.”
We sought to establish whether the backlash against the media house was justified and reached out to Nairobi Lawyer Nelson Havi to offer a counter perspective.
The lawyer was clear in his condemnation of the paper, arguing that it was necessary to appreciate the distinction between public interest and what interests the public. He asserted that the distinction was key in determining what the media was within its rights to report on.
"There's something called public interest and then there's the story that interests the public. You need to get the difference between public interest and what is interesting to the public."
Havi also countered claims that the piece could be counted as investigative journalism stating, "This is not investigative journalism. What you are seeing now is not the work of an investigative journalist. It is an investigator working with a journalist. "
