On 19th April 2016, the High Court of Kenya’s Constitutional and Human Rights Division declared section 29 of the Kenya Information and Communication Act (the Act) as unconstitutional. This decision was made by Lady Justice Mumbi Ngugi in Geoffrey Andare v The Attorney General & The Director of Public Prosecutions (Petition No 149 of 2015).
This particular provision of the law created the offence of “using a licensed telecommunication system to send a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, and sending a message that a person knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person.” The penalty upon conviction was a fine not exceeding Ksh. 50,000, or to imprisonment for a term not exceeding three months, or to both.
The Petitioner argued that the above section was worded vaguely and was thus prone to abuse by overzealous prosecution by government officials who were clamping down on the freedom of expression as guaranteed in Article 33 of the Constitution, particularly through social media and other online platforms. It was also argued that this section lacked a mens rea component, which is essential for any criminal offence as this shows the intent of the person committing the crime. This position was supported by the Interested Party. On the other hand, the Respondents argued that the section did not violate the Constitution and was, in fact, properly drafted. In their view, the Petition was a clever way to evade the criminal charges.
In her judgment, Justice Mumbi Ngugi noted that section 29 was drafted vaguely and could be subjectively interpreted, which was against the rule of certainty creating criminal offences. She also noted that it also offended the freedom of expression as it was not among those factors considered in Article 24 limiting fundamental rights and freedoms in the Constitution. The judge further noted that with the strides made in technological advancements, an ordinary person using a mobile phone, or social media, could not have been the person contemplated in the Act as using “a licensed telecommunication system”.
In her final remarks, Justice Mumbi Ngugi frowned on the practice of using criminal proceedings to prosecute matters that were covered under the civil law tort of defamation. She drew attention to the recent decision of Justice Mbogholi Msaga in Arthur Papa Odera v Peter O Ekisa (Civil Suit No 142 of 2014), wherein he awarded the Plaintiff (a Member of Parliament) Kshs. 5 million in damages after successfully suing the Defendant for defamatory comments posted and shared on Facebook.
This judgment is a huge win for proponents of freedom of expression who have consistently argued that the use of arbitrary government power through legislation and criminal proceedings is an affront to freedom of expression. We hope to see the Government making amendments to this section of the Act and to decriminalize libel, which would better be dealt with in civil suits, and with damages as an appropriate remedy for injury to reputation.
Please contact us at Info@cfllegal.com should you require further information.
