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“Freedom of expression as guaranteed by international law and The Constitution of Kenya 2010 is difficult to realize because of the claw-back provisions in the relevant statutes.” Anon. Using case law, interrogate the validity of the above statement.
Article 2 of the Constitution of Kenya states that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government[footnoteRef:1], it goes further on at Article 260 to define ‘persons’ as both the natural and juridical person[footnoteRef:2]. [1: Constitution of Kenya, 2010 Article 2(1)] [2: Ibid Article 260]
Article 2(4) of the same Constitution provides that, “any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”
The Constitution of Kenya further provides for freedom of expression at Article 33 guaranteeing every person the right to freedom of expression, which includes—
Article 2(5) and (6) go even further by providing that any International Law shall form part of our laws as it provides that generals rules of international law as well as treaties or conventions which Kenya has ratified.
In spite of these provisions, however, certain claw-back provisions do exist. The phrase “claw-back” clause has often been used to refer to those provisions touching on human rights that seek to minimize or limit some of the rights guaranteed under such law.
The first claw-back provision towards the achievement of the freedom of expression espoused in Article 33 of the Constitution lies in Article 24(1) of the same Constitution which provides that;
“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors”[footnoteRef:3] [3: Ibid Article 24(1)]
Further the African Charter, forming part of the laws of Kenya vide Article 2(6) of the Constitution also guarantees freedom of expression at Article 9 which provides that Every individual shall have the right to express and disseminate his opinions within the law.[footnoteRef:4] [4: ‘African Commission on Human and Peoples’ Rights Legalinstruments’ accessed 24 March 2020.]
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the freedom of Expression however Article 19(3) of the same ICCPR introduces the provisions that, “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”[footnoteRef:5] [5: International Covenant on Civil and Political Rights Article 19]
From both the Constitution, the Charter as well as the ICCPR the claw-back provisions run thus, “except by law”, “subject to certain restrictions” as well as “within the law.” The introduction of such provisions provides States, in this case Kenya with an opportunity or rather an avenue to use their municipal laws to circumvent the enjoyment of such freedom.
For quite some time after the promulgation of the new constitution in 2010 which has been hailed by some as being one of the most progressive Constitution s in Africa boasting of a robust Bill of Rights, criminal defamation still existed under Section 197 of the Penal Code which provided that “Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.”[footnoteRef:6] This provisions of Section 194 of the Penal Code was used by the Government to silence critics at times of those in power as was the case in Republic v Jackson Kituu Kiilu & Francis Nderitu Muchiri[footnoteRef:7] where the two accused were charged with intent to defame Reuben Chesire, they published defamatory matters concerning the said Rebuen Chesire namely, he is corrupt, immoral and looted Kshs.18 million from Kenya Grain Growers Cooperative union. The two were however acquitted with the State going further to appeal the said acquittal in which the appeals Court dismissed the appeal and agreed with the trial Court. [6: Penal Code, Cap 63, Laws of Kenya Section 194(now repealed) ] [7: Criminal Case No.11010 of 2003]
This provision however, has been ruled to offend the constitution in Petition 397 of 2016 in which the Learned Judge stated that, “ The freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to any available means of publication; subject again to such restrictions as could be legitimately imposed under article 24 of the Constitution of Kenya, 2010…The reasonable restrictions are those which are meant to prevent the expression of thought which is intrinsically dangerous to public interest and would not include anything else. The enabling power in article 24 of the Constitution to impose reasonable restrictions on the right conferred by article 33 of the Constitution was intended to safeguard the interests of the state and the general public and not of any individual, and therefore article 24 of the Constitution could not be regarded as the source of authority for section 194 of the Penal Code which made defamation of any person an offence…”[footnoteRef:8] with the Court going ahead to state that such provision sought to protect individual interest and not public interest as envisaged by the Framers of the Supreme Law in Article 24 of the Constitution. [8: Jackueline Okuta & another vs. Attorney General & 2 others (2017) eKLR]
Further, the Security Law (Amendment) Act, 2014 also introduced some claw-back provisions cutting into Article 33 of the Constitution. Section 12 of this Act sought to amend the Penal Code by inserting Section 66A to the said Penal Code which had provided that;
The Act went further to provide for Section 64 which had an effect of introducing Section 30A to the Prevention of Terrorism Act (POTA) which provided that “A person who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years” as well as Section 30F to the POTA Act to provide that, “(1) Any person who, without authorisation from the National Police Service, broadcasts any information which undermines investigations or security operations relating to terrorism commits an offence and is liable on conviction to a term of imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings, or both. (2) A person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a period not exceed three years or to a fine of five million shillings, or both. (3) Notwithstanding subsection (2) any person may publish or broadcast factual information of a general nature to the public.” Such provisions as held by the Court in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others [2015] eKLR
Were declared unconstitutional for violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution. The need to seek ‘authorization’ and ‘consent’ from the National Police Service to broadcast security operations was a claw-back provision which gave the state a sort of censorship power over information which the state did not want to be broadcasted.
The Kenya Information and Communications Act (KICA) has also had a controversial provision which stated that, “A person who by means of a licensed telecommunication system-(a)sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b)sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.” This provision was challenged at the High Court as offending Article 33 of the Constitution and the Court agreed with the petitioner in Geoffrey Andare v Attorney General & 2 others [2016] eKLR subsequently.
The Computer Misuse and Cyber Crimes Act has also brought with it certain provisions that may be argued to be claw-back provisions when it comes to the full realization of the freedom of expressions envisaged in the constitution. The Act gives the State a wide range of power including the power to prosecute those who publish false or misleading posts which have been popularly referred to as ‘fake news’.Critics of the Kenyan Cybercrimes law such as Demas Kiprono argue that the law goes above and beyond to deal with free speech matters, as opposed to crimes that are peculiar to cyberspace with regard to ICT systems, transactions, and communication.[footnoteRef:9] [9: Demas Kiprono, ‘Cybercrime Laws Blow to Freedom of Expression’ (The Standard) accessed 25 March 2020.]
The Act was challenged in Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] eKLR at the High Court over its constitutionality with the petitioners contending that section 23 of the Act is similar to section 29 of the Kenya Information and Communication Act which was declared unconstitutional in Geoffrey Andere vs. Attorney General & 2 others (2016) eKLR as well as section 23 which reintroduces criminal defamation, formerly based on section 194 of the Penal Code; which section was declared unconstitutional in Jackueline Okuta & another vs. Attorney General & 2 others (2017) eKLR. The Court however found that no section of the Computer Misuse and Cyber Crimes Act offended any provision of the Supreme Law and thus declared the Act Constitutional in its entirety. This decision thus means that the provisions found in Sections 22 and 23 of the Act on criminalizing false publications fall well within the claw-back provisions that allow limiting of such freedom freedom of expression ‘within the law’ and as such poses a danger to the full realization of such provision.
From my above illustration of certain provisions of our laws that have sought to hinder the full realization of the Freedom of Expression as well as certain instances in which the Courts have pronounced itself on such provisions, I am persuaded to agree with the statement that Freedom of expression as guaranteed by international law and The Constitution of Kenya 2010 is difficult to realize because of the claw-back provisions in the relevant statute. Such provisions at times are used to abuse the freedom of expression by the state which hides behind “public interest” as well as the fact that the Constitution at Article 24 as well as certain International Law Instruments falling under Article 2(5) & (6) provide a grey area as long as the state is acting ‘within the law’.
It is important to note that in enjoyment of a right such as freedom of expression, the state equally has a positive duty to protect its citizens against attacks by others. In the European Court of Human Rights in Özgür Gündem vs. Turkey, 16 March 2000, Application No. 23144/93 observed that the genuine, effective exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. From such foregoing it is clear that states must not legislate on legislation that has an effect of hampering the realization and protection of the Freedom of Expression as a matter of General international law principles.
This thus begs the question, who gets to determine what public good is and is it not counterproductive to allow a state curtail freedom of expression as long as it is “within the law?”
While the State has long been held and is still held as the custodian of public interest, at times this is not the case. As I have illustrated above, these provisions have at times been used or rather introduced with the intent of being used to serve individual interest at times to the detriment of the public good. Whereas States remain sovereign with the power to formulate their own sovereign municipal laws such laws in my view must conform to provisions of Freedom of Expression. While I am of the thought that Freedom of Expression should not be absolute, I am of the view that limitations to such freedom must only be of a civil nature so as to prevent the state from using the law to curtail such freedom. Issues such as false publications as set out in the Computer misuse and Cybercrimes Act should be dealt with as a tort by the aggrieved persons since Article 33 as well as other International Law instruments binding Kenya under Article 2 of the the Constitution of Kenya, 2010 do not make the truth a necessary condition to the right to freedom of expression.
The role our Courts have played in ensuring that the Freedom of Expression set out in Article 33 of the Constitution as well as other Instruments such as the ICCPR as well as the African Charter on Human and People’s Rights is protected should never be gainsaid. While others may argue that the State should limit such freedom on grounds of public interest, public good, national security or even public order, I form the view that we must learn from our past as were the ‘dark days’ of the KANU regimes which used the law to crack down on any dissidents by stifling all forms of expressions that angered the State under the guise of national security or public order as well as the NARC regime that still used legal provisions such as public order and national security during the 2006 Raid on the Standard Media Group.[footnoteRef:10] [10: Protus Onyango, ‘“Standard Group” Attack 12 Years On’ (The Standard) accessed 25 March 2020.]
In conclusion, the Constitution of Kenya promulgated in 2010 has provided for a robust protection of this freedom though efforts are still being made by some State actors to undermine the same through introduction of statutory provisions that offend such freedom. These efforts are enabled by the claw-back clauses as shown above which provide the leeway to circumvent the protection of the freedom of expression.
The Bill of Rights, and more so the Freedom of Expression must never be sacrificed at any altar, more so the altar of convenience.
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