This article was first published in the Nairobi Law Monthly magazine June 2017 edition.
When the Universal Declaration of Human Rights was being drafted over 50 years ago, no one could have foreseen the impact of some of its provisions on the future. Priority was world peace as the world was just healing from the Second World War.
Article 19 of the UDHR, which was later adopted by Kenya in its 2010 Constitution, provided for the right to freedom of expression, which includes “(a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.”
Since, at the time of drafting this code, Kenya was still nursing the wounds from the 2007/2008 post-election violence, a limitation was imposed on this freedom as it did not extend to: “(a) propaganda for war; (b) incitement to violence; (c) hate speech;(d) advocacy of hatred…”
Kenyans who voted for the Constitution in the 2010 referendum wholly agreed upon these limitations. The effect of this was that colonial laws that had been used to oppress vocal citizens became unconstitutional. Although arrests still take place, one by one, these laws are being quashed after petitions to the High Court by arrested persons.
The criteria for limitations for this right was judicially reiterated in the case of Coalition for Reforms and Democracy vs. The Republic (2015) where the High Court held that limitations to freedom of expression must be on grounds which are permitted under Article 33 (2) and that the State has a duty to demonstrate that the limitation is justifiable, and that freedom of expression is not a right to be interfered with lightly.
KICA s29 case: Geoffrey Andare vs. Attorney General & Director of Public Prosecutions (2016)
The accused, Geoffrey Andare, was charged under Section 29 of the Kenya Information Communication Act with the offence of improper use of licensed telecommunication system. The particulars of the offence were that he, through his Facebook account, posted grossly offensive electronic mail with regard to the complainant, a Mr Titus Kuria, in which he stated, “You don’t have to sleep with the young vulnerable girls to award them
opportunities to go to school, that is so wrong! Shame on you,” knowing it to be false and with the intention of causing annoyance to the complainant.
Mr Andare approached the High Court in person with an urgent application seeking to stop his prosecution in the said criminal case. The Court held that the provisions of Section 29 were so vague, broad and uncertain that individuals wouldn’t know the parameters within which their communication falls. Therefore it would offend the rule requiring certainty in legislation that creates criminal offences.
Section 29 imposed a limitation on the freedom of expression in vague, imprecise and undefined terms that go outside the scope of the limitations allowed under Article 33 (2) of the Constitution. Hence, section 29 of the Kenya Information and Communication Act was found to be unconstitutional for violating Article 33 of the Constitution.
Criminal Defamation case: Jacqueline Okuta & Another vs. Attorney General & 2 others 
Defamation is usually a civil matter but in Kenya, it used to be a criminal offence under Section 194 of the Penal Code. In the case of Jacqueline Okuta & another vs. Attorney General & 2 Others , the first petitioners had been charged with the offence of criminal defamation under Section 194 as read with Section 36 of the Penal Code.
The particulars of the charges against the petitioners were that they used Facebook to publish words with intent to defame one Cecil Miller. The petitioners submitted that Section 194 of the Penal Code violated the right to freedom of expression beyond the orbit of limitations permitted by the constitution under Article 33 (2) (d).
The High Court agreed with this assertion and reiterated that freedom of expression is secured under Article 33 of the Constitution. It also emphasised that any limitation must fall within the scope and ambit of the provisions of Article 24 of the Constitution. It found that criminal defamation couldn’t be reasonably justified in a democratic society as it offends the right to freedom of expression. Criminal sanctions on speech ought to be reserved for the most serious cases particularised under Article 33 (2) (a)- (d) where the Constitution aims at protecting public interest and peace.
The Robert Alai case, Petition 174 of 2016
This recent win comes from a judgement before Justice Enoch Chacha Mwita of the Constitutional and Human Rights Division, who declared Section 132 of the Penal Code to be unconstitutional. This section had criminalised undermining the authority of public office.
The petitioner in this case, Robert Alai had been charged under the offense for criticising the Head of State, President Uhuru Kenyatta. The offence carried a prison term of three years for those found guilty of the offence.
The High Court found the provision to have an unjustifiable limitation to freedom of expression, especially for an open and democratic society such as Kenya. It was therefore found inconsistent with Article 33(2) of the Constitution.