Can a ruler’s ailments be disclosed in law?
RECENTLY, Professor John Kibukamusoke, personal doctor to General Idi Amin, mercurial President of Uganda, made several serious revelations in the London Observer about the medical history of his patient, the President. These medical disclosure were not only revealing, but were staggering in that they gave the world, and Africa in particular, an unusual insight into the schizophrenic, murderously temperamental, egregiously dictatorial and endlessly cruel being ever to preside over an African people as their Head of State. In a distressingly emphatic language, Professor Kibukamusoke declared learnedly and convincingly: “From my observations of Amin, I have no doubt at all that he suffers from Hypomania, which has become increasingly more pronounce since he became Head of State in 1971.” The Professor explained: “Hypomania is a state of mind in which a rapid succession of widely varying ideas hit the mind and receive oral expression. In this way, it is possible to find a person suffering from the complaint issuing a rapid series of confused orders. If these are then carried out without question, especially by army officers, it could lead to disastrous military and other actions.”
This is a very dismal picture, not only for Uganda but, also, for Africa and indeed for any modern State where political power is exercised by unelected groups, cliques or individuals. In many of these states, individuals or varying oligarchies seize power and –with varying degree of frenzy and exaggerated enthusiasm– proclaim ideologies that are as varied and incoherent as their imagination is blurred. Because of the absence of the normal democratic dynamics, like campaigns, questionings, logical reasoning and political dialetics, there is no no opportunity to test their sanity or to suspect their mental instability or psychiatric afflictions. Whatever one may say about the ferocious politics of the normal democratic systems, they have the abiding virtues of exposing either the robust and resilient political dependability of the good rulers or the sloppy, dull, unimaginative and decadent traits of the bad one. In a democratic warfare, all the virtues and vices of rulers are exposed, unlike the dull un-intellectual and morbid conformity of a dictatorial setup. In the latter, the rulers and their protégés are presumed sane, undefiled, untainted and politically omniscient. To criticise them is unpardonable sinfulness; and to doubt their sanity is an unforgivable affront to their divinity.
It is therefore not surprising that in Idi Amin’s Uganda and a few other African states, it is taboo to criticise the leadership or impugn its annuity even where the evidence, as produced by Professor Kibukamosoke, is overwhelmingly disturbing. It is futile to doubt the Professor’s diagnosis, as President Amin’s catalogue of murderous achievements cannot be described as the product of a logical and rationally well-oriented mind. A Head of State who orders, with callous emotion and uncanny composure, the murder of a harmless Archbishop, a Chief Justice, and the ritual murder of prominent and brilliant citizens of his society has, in my view, displayed all the sordid manifestations of a diseased mind. As Professor Kibukamusoke affirmed, “This behaviour is typical of the double-personality –the Jekyll and Hyde Syndrome, a state of schizophrenia with paranoid reactions.”
Our concern here is to consider two important aspects of these medical disclosures. Firstly, are those disclosures a violation of the much cherished Right of Privacy, which is proclaimed by many civilised societies, including our own? In other words, are these disclosures made within the law? And can President Idi Amin bring a legal action to prevent his former medical adviser from making further disclosures? Now, let us look at the Law of Privacy under the Common Law, which is prevalent, not only here in Nigeria, but in most parts of the Commonwealth countries, including Uganda and England. In their famous book, The Right to Privacy, written in 1890 by Samuel Warren and Lois Brandies, the two famous jurists defined the purpose of the Law of Privacy as being, “…to protect those persons with whose affairs the community has no legitimate concern from being dragged into an undesirable and undesired publicity; and to protect all persons, whatsoever their position or station, from having matters –which they may properly prefer to keep private–made public against their will.” With great deference, while this view was very optimistic, welcomed and exuberantly expressed, it did not quite represent the precise position. For example, while the Common Law scrupulously protects a person’s reputation (i.e. the esteem in which he is held by reasonable people in the society), it does not proceed to protect some other aspects of his privacy. Thus, if false statements are made about a person, he can maintain an action for damages for the injury done to his reputation and, if need be, could bring an injunction to prevent a further repetition of the defamatory language.
Thus, to write of a woman that she gave birth to twin babies barely a month after her marriage is defamatory because it imputes unchastity and pre-marital sexual experience to her. But to be actionable in defamation, the Plaintiff must show that the information disseminated about him was false. If true, he has no remedies. Therefore, the Law of Defamation does not protect a person against public disclosures of true information about himself, however, much damage and suffering such a disclosure might have caused him. Also, the Law of Defamation does not protect a person against the unauthorised use of his name, photographs or even of some of his works, unless such use is defamatory in that it lowers him in the estimation of his fellows. This means that your privacy can be invaded by your name, photographs, etc. being published in a newspaper or any other news media, provided such use is not in itself defamatory. But it has been held in the recent case of Emokpae versus Daily Times that a mere unauthorised juxtaposition of the Plaintiff’s photograph to those youths indulging in exuberant love-making in the parks was defamatory.
But in the 1906 case of Correlli versus Wall, a famous Novelist could not claim damages for defamation when the defendants published, and sold without her consent, colour postcards depicting her glamorous life. This was held not to be defamatory. One way by which the Common Law may indirectly protect a man against unwarranted appropriation of his personality is by giving him a right of property in the products of his art, his labour or his intellect. For example, apart from any question of statutory copyright, a lecturer probably has a right of property in the lecture he delivers, a novelist in the books he writes, and the writer of a letter in the letter he writes. In the old case of Prince Albert versus Strange, the Prince Consort of Queen Victoria, the Prince, was able to convince the the court that to allow the defendant to use his drawings and etchings –the products of his diversions in the palace– was an exploitation of his personality which ought to be restrained. The courts have, however, not always been courageous or convinced enough to develop a law, which recognises privacy. In the American case of Robertson versus Rochester Folding Box Co., the Plaintiff, an extremely beautiful lady, could not procure damages from the defendants, who had made profits from a sale of over 25,000 copies of her photographs without her consent. As a result, she was subjected to humiliation and degrading mental anguish. She could not claim because to display her beauty without her consent was not defamation. But as Prosser, the leading American Jurist, has observed, invasion of privacy goes beyond the mere appropriation of the Plaintiff’s personality; any law which protects privacy must protect the person “against interferences which are serious and outrageous or beyond the limits of common ideas of decent conduct.”
The most daring adventures of the Common Law in endeavouring to uphold a right akin to privacy was in the 1987 case of Duchess of Argyll versus the Duke of Argyll. The Plaintiff, a Duchess with incurable sexual proclivity, was granted a right to prevent a newspaper from publishing a serial of the revolting and sordid aspects of her bout of sexual orgies with men of various descriptions. The injunction granted her has been regarded by some authors as an action for the invasion of privacy. It is this development that Samuel Warren and Justice Brandels recognised as an “embryomic right of privacy” in the Common Law. Now, let us relate these principles of law to the medical disclosures about President Idi Amin’s health made by his Medical Consultant. Are these disclosures by Professor Kibukamusoke wrongful in law? Can Idi Amin bring an action to restrain further disclosures? Does it accord with good government to suppress information of this nature about public men, however damaging to their political career? In respect of public men, should there be a freedom from unwanted publicity?
The English Common Law with its traditional circumspection has not proved as adventurous as its American offshoot in facing the challenge posed by a conflict between privacy and freedom, where issues of fundamental public interests are involved. In disclosing the full medical details of President Amin’s medical history, Professor Kibukamusoke could be said to be making fair comment on a matter of public interest. As Professor A.G. Quest for Oxford University has aptly observed: “A person who puts himself in the public eye cannot complain if the publicity he gets is of a type different from that which he desires. On this view, Idi Amin –having put himself out to the Ugandan people as a person having both physical and mental capability to govern them– must be taken to have put himself in the “public eye” and cannot complain if the publicity put out about his health by his doctor (who is in a better position to know) “is of a type which is different from the type he desires.”
The right to privacy must give way to the right to investigate and comment upon matters of proper public interest and concern. In the apposite and brilliant words of Professor J.W. Bridge and Others in their classic work on Fundamental Rights: Persons, whose affairs are, or become –either voluntary or not– a matter of legitimate public interest must sacrifice a substantial area of that privacy, which would otherwise be protected by the law. This, of course, means that the candidate for political office, the film star or guitar player striving after publicity, the man of commerce whose business activities affect the lives and wellbeing of thousands, the notorious criminal whose activities disturb the social tranquillity of others, all these and others, have attracted the limelight; and in so doing, their private lives must often be subordinated to the interest of the community, in freedom to discuss and receive information. Our last question is whether it accords with good government in general to suppress medical or any other information, or the type put out by President Idi Amin’s doctor, however damaging to the political career of rulers and to the society as a whole. The Americans, buoyed up by the dynamic provisions of the First Amendment provisions of their Constitution about “Free Speech” and “Free Press,” have laid down an enviable criterion. In the case of Elmhurst versus Pearson decided in 1946, a case which exemplified the comparative breadth of free comment permitted upon matters of public concern by the American Constitution, the courts held that:
It is well settled… that one who becomes an actor in an occurrence of public or general interest must pay the price of publicity through news reports concerning his private life, unless these reports are defamatory. In this case, the Plaintiff had had the misfortune of being a Defendant in a sedition case that was nationally discussed. In another case, the courts held that despite the “ruthless exposure” of the Plaintiff’s secluded life and the mental anguish thereby caused him, the Defendants –a New York magazine– was held not liable because “the later life of a former infant mathematical prodigy was still a matter of public interest.” By the provisions of their Constitution, the Americans have even removed the suffocating handicaps of the Law of Defamation. The Supreme Court has consequently held, in the then famous case of New York Times versus Sullivan, that a public figure cannot successfully sue for defamation unless he can show that the Defendant was actuated by malice, which means that he deliberately published a false statement or did so with reckless disregard for the truth. Clearly, the trend of the law in the Common Law jurisdictions –as shown by these cases– is to protect the privacy of the private citizen as much as possible. But in respect of public figures (particularly those in authority over the people), the crystallising philosophy of the laws is ‘’volenti non fit injura (those who deliberately assume the risk of public life cannot complain if injured).’’
In my view, this new trend in American Law is clearly in evidence under our own law. We are all now familiar with the intimate financial disclosures that are now expected, as a matter of policy, from aspiring candidates for high public office.The new philosophy, enshrined in such laws as the Public Complaints Decree, the Corrupt Practices Decree, and a few others, emphasises the need to subject the private affairs of our public men to public scrutiny. Politically, such legal revolutions strengthen the ethics of the governmental structure and the Constitution. The new trend assumes that too much secrecy is anathema not only to enlightened ordering of society but to the political system. Professor John Kibukamusoke has done tremendous service to African political science by this revelation. He has created an awareness that the rulers –like any other person– are vulnerable to aliments and other afflictions. He has shown us that the presence of a household Rasputin in the royal household (like we once had in the Gomwalk ruling household), or the birth of a deformed baby to a Head of State (like once happened to a former ruler in this country), or even the presence of a domineering wife in the same roof with a sick and dying President (like once happened to an American President), or Hypomania (like in Idi Amin’s case) are factors which can affect the whole political leadership and destroy the virtuous moral fabric of a nation.
- This article by the late Dr. Onagoruwa, former Attorney-General and Minister of Justice , was first published in the Sunday Times of 29th May 1977, and is part of a collection in his book, Law and Contemporary Nigeria, published by Inspired Communication Limited.