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The constitution of Kenya 2010 under article 33 provides for the freedom of expression explicitly stating that every person has and shall enjoy this right. The freedom to expression is further illustrated to include the following three;[footnoteRef:2] [2: The Constitution of Kenya, 2010, Article 33.]
According to the constitution this right is not absolute and therefore there are certain limitation to the enjoyment of this freedom, this limitation as per subsection two of article 33 are as follows;[footnoteRef:3] [3: The Constitution of Kenya, 2010]
The constitution of Kenya in article 2 further states that any treaty or convention that Kenya is party to will be part and parcel of the laws of Kenya,[footnoteRef:4] in respect to this, we will look at regional and international convention that provides for the freedom of expression and which Kenya has ratified. [4: The Constitution of Kenya, 2010, Article 2.]
The African charter on human and peoples’ right is the regional human rights instrument for African union members,[footnoteRef:5] which Kenya is a member state, in the Banjul charter, the freedom of expression is provided for in article 9, stating, everyone shall have the right to receive information, express and disseminate his opinion within the law.[footnoteRef:6] The last phrase “within the law” alludes to the fact that this is not an absolute right and reasonable limitation can be provided in national laws. [5: AM&BF PLC, 'African Commission On Human And Peoples' Rights Legalinstruments' (Achpr.org, 2020) accessed 25 March 2020.] [6: Ibid]
In the year 2002, in October, the African union cognizant of the various challenges and inability of a majority of its state members to guarantee its citizen the freedom to expression, it came up with the Declaration of principles on freedom of expression in Africa, African commission on Human and Peoples’ right, this document further expounded on this freedom because they believed that it helps promote democratic governance, transparency and accountability.[footnoteRef:7] [7: 'Declaration Of Principles On Freedom Of Expression In Africa' (Hrlibrary.umn.edu, 2020) accessed 25 March 2020.]
The universal declaration on human rights is united nation document that dates back to 1948, it’s the first international document that set out various rights and freedom.[footnoteRef:8] The freedom of expression is outlined and provided for in article 19 of the universal declaration of human rights (UDHR), it states that, the freedom of expression and opinion shall be enjoyed by everyone, it goes ahead to also state that this right includes the freedom to hold opinions, seek, receive and to impart ides without any interference.[footnoteRef:9] [8: ' 'Universal Declaration Of Human Rights' (Un.org, 2020) accessed 25 March 2020.] [9: Ibid]
The international covenant on civil and political rights, came into force on March 23, 1976. In article 19, it provides for the freedom of expression. It also alludes that this freedom comes with special duties and responsibilities, and may be subject to restrictions to ensure the rights and reputation of others is respected, and to maintain public order and protect national security.[footnoteRef:10] [10: 'OHCHR | International Covenant On Civil And Political Rights' (Ohchr.org, 2020) accessed 25 March 2020.]
It has been difficult to fully realize the freedom of expression because of the claw-back provisions in Kenyan statutes such as the Kenya information and communication act (KICA), the Penal Code, Prevention of Terrorism Act (PTA) and Security Law Amendment Act (SLAA). The courts in Kenya have been on the front-foot to declare and invalidate sections of statutes that seek to violate the rights and freedom to expression as provided for in article 33 of the Constitution of Kenya 2010, and other relevant international instruments.
The following statutes have section that violate and those that hinder realization of the freedom of expression;
Section 132 and section 194 of the Kenya Penal Code have been declared unconstitutional for violating the freedom of expression in the case of Robert Alai v AG and Jacqueline Okuta and another v AG, respectively.
Case Facts
“Any person who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints, publishes any words, or does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer or any class of public officers is guilty of an offense and is liable to imprisonment for a term not exceeding three years.”
Counsel for the petitioner argued that in democratic societies, individuals should be allowed to critic their government to express their opinions and ideas without being gagged, he went on to state that statutes seeking to violate the freedom of expression should be plunged out, he therefore requested the court to order section 132 of the Penal code as unconstitutional.[footnoteRef:12] [12: 'Alai V. Attorney General - Global Freedom Of Expression' (Global Freedom of Expression, 2020) accessed 26 March 2020.]
Counsel for the petitioner cited the Indian case of Marathe v. state of Maharashtra in which it was stated that criticism of public officers should be permitted.
The court acknowledged that Kenya is a democratic state, where leaders are elected through a democratic process to represent the will of the people, the court stated that the citizens of Kenya have a democratic right to discuss the affairs of their government through the freedom of expression and that they can’t do so if they are not able to criticize their leaders.[footnoteRef:13] [13: 'Petition 174 Of 2016 - Kenya Law' (Kenyalaw.org, 2020) accessed 26 March 2020.]
Justice Mwita referred to the Ugandan case of Olum v AG in which it was held that whenever the court is subjected to the constitutionality of a statute it has to look at the purpose and the effect of the statute in question. [footnoteRef:14] [14: Ibid]
The court looked at the history of the offence in section 132 of the penal code and stated that with the current constitution the object of section 132 diminishes, he further alluded that the definition of undermining of a public officer was vague.[footnoteRef:15] [15: Ibid]
Section 132 being too wide, vague, punitive in intent, and general, the court ruled that it violated the freedom of expression and was unconstitutional, null and void.[footnoteRef:16] [16: Ibid]
The court in this case of Robert Alai v Attorney General stamped authority in protecting the bill of rights and the spirit of the constitution in declaring section 132 as unconstitutional, it provided much-needed guidance in helping to fully realize the freedom of expression whose realization has been curtailed by provision of some statutes.
In this case, the constitutionality of section 194 of the penal code came into question before the high court sitting in Nairobi,
This section states that;[footnoteRef:17] [17: Penal Code (cap. 63).]
“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 misdemeanor termed libel.”
The petitioners had been arrested and charged under section 194 of the penal code, after having posted an allegedly defamatory statement on a Facebook page about a Kenyan lawyer. A successful conviction under this section could lead to serving two years in prison.[footnoteRef:18] [18: 'Okuta V. Attorney General - Global Freedom Of Expression' (Global Freedom of Expression, 2020) accessed 26 March 2020.]
The petitioners therefore went to the high court seeking orders to the effect that section 194 of the penal code is unconstitutional because it seeks to arbitrarily limit the freedom to expression, a constitutional right.[footnoteRef:19] [19: Ibid]
The counsel for the petitioners pointed the court to provisions of article 2 of the constitutional, which stated that international treaties and convention forms part of the laws of Kenya, and therefore international law required states to decriminalize defamation for it violated the freedom of expression.[footnoteRef:20] [20: 'Petition 397 Of 2016 - Kenya Law' (Kenyalaw.org, 2020) accessed 26 March 2020.]
Justice Mativo sitting in the high court highlighted that article 33 of the constitution, freedom of expression, was of essence in a spirited democracy and the progress of a forward-thinking nation. The honorable judge in assessing the constitutionality of that section held that the defamation of a private person is not a criminal offence under the new constitution framework.[footnoteRef:21] [21: Ibid]
Through a comparative analysis and a look at international precedence on criminal defamation, Justice Mativo held that section 194 of the penal code was unconstitutional and an excessive tool used in protecting the reputation of others.[footnoteRef:22] [22: Ibid]
The Kenya Information and Communication Act is one of the statutes that contain back-claw provision that arbitrary limits the freedom of expression.
Section 29 and 84 of the KICA have come under question before the high court in Kenya, to ascertain their legality or lack thereof in limiting the freedom of expression.
In this particular case, the petitioner sought the courts intervention to declare section 29 of the Kenya Information and Communication Act as unconstitutional.
Titus Kuria who worked with Canada-Mathare Education Trust was accused of asking for sexual favors from minors in exchange of a scholarship, this accusation was posted on a Facebook page by Geoffrey Andare, Titus then reported the issue and Andare was charged under section 29 of KICA.[footnoteRef:23] [23: 'Andare V. Attorney General - Global Freedom Of Expression' (Global Freedom of Expression, 2020) accessed 26 March 2020.]
Section 29 of Kenya Information and Communication Act states that;[footnoteRef:24] [24: Kenya Information and Communication Act. ]
‘‘A person who by means of a licensed telecommunication system
Geoffrey then proceeded to the High Court seeking section 29 of KICA to be declared unconstitutional hence null and void, through his counsel he argued that provision of section 29 was too wide and vague, which infringed on protected speech and had a negative effect on the constitutional freedom of expression.[footnoteRef:25] [25: 'Petition 149 Of 2015 - Kenya Law' (Kenyalaw.org, 2020) accessed 26 March 2020.]
Justice Mumbi sitting in the high court picked out the constitutionality of section 29 of KICA as been the focal issue before the court, the court stated that the KICA failed to define key terms to help in interpretation.[footnoteRef:26] [26: 'Petition 149 Of 2015 - Kenya Law' (Kenyalaw.org, 2020) accessed 26 March 2020.]
Making reference to the case of Sunday times v UK, Justice Mumbi stated that the vagueness created by the act left an unconstitutionally wide gap for interpretation, thereafter the court in stressing the significance of the freedom of speech made reference to the Ugandan case of Onyango Obbo v Attorney General in which the freedom of expression was held to be of importance in a society. The court finalized by ordering section 29 as been unconstitutional.[footnoteRef:27] [27: Ibid]
The constitutionality of section 84d of the Kenya Information and Communication Act came into question before the High Court.
The High Court sitting in Nairobi ruled that the provision prohibiting obscene information in electronic form from being published is not justified in limiting the freedom of expression. [footnoteRef:28] [28: 'Petition 214 Of 2018 - Kenya Law' (Kenyalaw.org, 2020) accessed 26 March 2020.]
This case was brought after the petitioner was charged for critiquing public officers using abusive language. The court noted that the KICA had come into law before the promulgation of the Constitution of Kenya 2010 and the vagueness of words used in section 84D were an infringement on the freedom of expression.[footnoteRef:29] [29: 'Andama V. Director Of Public Prosecutions - Global Freedom Of Expression' (Global Freedom of Expression, 2020) accessed 26 March 2020.]
Sections of the Prevention Of Terrorism Act leaves an open gate for arbitrarily limitation of the freedom of expression, this is facilitated by the broad definition of terrorism in article 2 of PTA, the government has used this before as a leverage to gag and frustrate non- governmental association as was the case in Haki Africa and Muslim for Human Rights court case.
Section 19 of the Prevention of Terrorism Act also limits the freedom of expression by criminalizing publishing of information related to terrorism investigation.
Section 12 and 30 of the Security Laws Amendment Act which negatively hinder investigation journalism and expression has been declared unconstitutional by the courts.
At the regional level the African court of Human and Peoples’ Right has defended the freedom of expression before as was the case in Lohe’ Issa Konate v. The Republic of Burkina Faso in which his conviction for publishing articles that alleged corruption by a state prosecutor was overruled. The African court held that such acts by the Burkina Faso government infringed on the journalist freedom of expression.
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