By Ian Njathi
(LL.B., LLM, Dip in Law)
Facts of the Case
1. The Petitioner sought to challenge the constitutional validity of Section 84D of the Kenya Information and Communication Act on the basis that it criminalizes the publishing of obscene information in electronic form in vague and overboard terms thereby limiting the constitutionally guaranteed freedom of expression and right to information.
2. The petitioner had been charged at both the Milimani Law Courts and Kiambu Law Courts with offences under the impugned section of the Act and it was his case that the impugned section limits his freedom of speech and expression.
3. It was the petitioners case that the section was vague and overboard in its definition of terms and thus offended the principle of legality in Article 50(2) of the Constitution which requires criminal law especially one that limits a fundamental right to be clear enough to be understood and precise enough to cover only activities connected to the law’s purpose.
4. The Petitioner argued that the section had a chilling effect on the constitutional right to freedom of expression and right to seek or receive information or ideas under Article 35 whereby the Article does not refer to the content of the message but only to its effect that is information that is deemed to be subversive, offensive and conducive to breach of peace.
5. He further added that courts needed to intervene as the custodian of the Bill of Rights where facts disclose a need to prevent a violation of rights and fundamental freedoms guaranteed under the Constitution.
Interested Party’s Submission
6. The interested party, Article–19 East Africa, filed submissions in support of the petition arguing that section 84D did not give due regard to Article 33 of the Constitution and Article 19 of the International Covenant on Civil and Political Rights(ICCPR)
7. They argued that the impugned section creates an offence in vague, undefined terms and whose effect was arbitrariness in application of criminal law.
8. On the justifiability and reasonability of the section in an open and democratic society, they submitted that it did not satisfy the 3 part test set out under Article 24 which provides that a limitation must be provided for under the law, have a legitimate aim and should be necessary/ proportional.
9. They submitted that the section had no proximate relation to the 4 grounds under which freedom of expression may be limited under Article 33(2) and thus does not serve a legitimate aim.
10. They argued that the preamble of the Act did not state its intention to protect reputations but rather facilitate development inn information and communication therefore failed the necessity test.
11. Additionally, they argued that the section failed the proportionality test on account of vagueness and necessity.
1st Respondents Reply
12. They submitted that the rights under Article 33 can be limited to ensure that the enjoyment of the rights by any individual does not prejudice rights and freedoms of others or public interest.
13. On the interpretation of statutes, they submitted that the courts should adopt a construction that will provide the general legislative purpose underlying the provision.
14. Additionally, the 1st respondents averred that the petitioner had not sufficiently demonstrated particulars of the specific rights infringed and damages suffered by the alleged infringement.
15. They further submitted on the petitioner’s prayer to bar the 1st Respondent from carrying on the prosecution of the petitioner that an order of prohibition is only tenable where a public body or official has acted in excess of their powers and the petitioner had provided no evidence of misuse of power or contravention of the rules of natural justice.
16. Furthermore, the orders to quash their decision to institute criminal charges against the petitioners can only be obtained by way of judicial review.
2nd Respondents Reply
17. The 2nd respondents opposed the petition on the grounds that the petition was misconceived, unfounded and was an abuse of the court process.
18. They also opposed the claim that the petitioner had portended that the constitution unsettled other laws of procedure and administration of justice.
19. They submitted that Article 33 is a self-contained provision of the law in respect to right to freedom of expression and the limitations are advocacy of hatred which consists of ethnic incitement, vilification of others and incitement to cause harm and that every person shall respect the rights and reputation of others.
20. They further argued that it is the trial court applying the law on the facts that has the capacity to determine whether the petitioner’s writing vilified the persons mentioned or injured their reputations.
21. The 2nd respondents averred that the petition was speculative in that the petitioner, an accused person in the Milimani and Kiambu Law Courts, will be convicted.
22. They also submitted that by virtue 1st respondent being a constitutional office holder with a constitutional mandate, granting the orders sought would be tantamount to the court interfering with the exercise of constitutional powers by the 1st respondent.
23. Moreover, they submitted that the High Court had no capacity to adjudicate upon the defences in the criminal cases in the manner proposed in the petition.
24. They further submitted that the international instruments and Article 33(2) of the Constitution does not ratify the vilification of other people and that the freedom of expression is not an absolute right.
25. Further to this, they submitted that the mere fact that the term ‘obscene’ is not defined does not mean that the Act is vague as the Act is a replication of the law under the Indian Penal Code of 1860. Furthermore, while drawing comparative jurisprudence, the sentence imposed by the impugned section was reasonable and proportionate.
26. Additionally, they submitted that there was a distinct difference between constructive criticism protected under Article 33 and vilification and profanities which were the main issues of the criminal charges.
27. The main issue for determination was whether the impugned section of KICA was unconstitutional.
28. The Court ruled that Section 84D of the Kenya Information and Communication Act was unconstitutional and invalid and its continued enforcement by the 2nd respondent against the petitioner was unconstitutional and a violation to his fundamental right to freedom of expression.
29. In so doing, it ordered an injunction barring the 1st respondent from carrying on with the prosecution of the petitioner in the Milimani and Kiambu Law Courts.
30. Additionally, each party was to bear its own costs.
31. The court in determining the matter held that the principle that there is a rebuttable presumption of legality of statutes based on the understanding that the Act or provision was intended to serve the people and is therefore constitutional thus courts should be slow to declaring a statute unconstitutional.
32. Additionally, the court is under duty to consider the impugned legislation or provision alongside Articles of the Constitution and determine whether it meets the constitutional validity test which involves considering the purpose and effect of the section and determine whether the purpose may lead to unconstitutionality of the provision.
33. The court held that when upholding the rule of law, courts are required not only to have regard to the strictness of regulatory provisions but also uphold the values underlying the Bill of Rights. Additionally, in interpreting the Constitution, the first port of call is the constitution itself.
34. The Court held that courts have laid down two of the main standards determining constitutional validity:
i) Rationality test, which is the standard that applies to all legislation under the rule of law
ii) Reasonableness or proportionality standard which applies when legislation limits a fundamental right in the Bill of Rights. Article 24(1) provides that such a limitation is only valid if it is reasonable and justifiable in an open and democratic society.
35. Furthermore the court stated that with Kenya being an democratic society, it must be appreciated that it is only through criticism that citizens make their leaders know when their actions may not be in the interest of the Nation and as such citizens cannot be freely expressing themselves if they do not criticize or comment on their leaders or public officers which is a fundamental right guaranteed under Article 33 albeit the freedom of expression is limited to any expression not in accord to Clause 2.
36. The Court noted that the Act was enacted less than a year to the promulgation of the Constitution 2010 which introduced a wide array of fundamental rights and freedoms in the Bill of Rights including the freedom of expression.
37. It was also noted that the impugned Act was enacted following the advent of electronic mode of communication and at a time the government was used to forms of communication it could easily control and as such the impugned Act was introduced to attempt to control information circulated in social media.
38. On looking at the title of the impugned section, its purpose was to rein in on the publishing of obscene information. However, the resultant effect has been to instill fear and submission among the people.
39. The Court held the opinion that instillation of fear and submission cannot be the object of any law in face of the current constitutional dispensation where people enjoy a robust Bill of Rights.
40. The Court found that while it was true that the right to freedom of expression is limited by clause 2 and 3, such limitation should be in terms of the 2 sub articles and it was upon the respondent to show that the limitation by the impugned section over the publications allegedly made by the petitioner was contrary to Article 33(2) and (3) which they failed to do.
41. Additionally, Article 24 is in mandatory terms that the purported limitation must be justifiable in an open and democratic society based on human dignity, equality and freedom.
42. Furthermore, Article 24(3) places an obligation to the state to justify a particular limitation to demonstrate to the court, tribunal or authority that the requirements of Article 24 have been satisfied and as such the only justification met by section 84D of KICA is that it is a law limiting the freedom of expression and nothing more.
43. The Court held that the respondent did not sufficiently demonstrate that the limitation of the provision was justified. Additionally, the court was of the view that to the extent the impugned provision purported to suppress dissent, was a derogation of Article 33.
44. Furthermore, the impugned provision contravened Article 25(2) to the extent it limits the right to a fair trial as enshrined in Article 50(2)(b) as any discomfort with the petitioner’s publication could have been addressed by less restrictive means such a civil suit for defamation other than a blanket curtailment of a fundamental right.
45. It was therefore the courts finding that the impugned section was unconstitutional considering that even though the purpose was to limit/control use of obscene communication, its effect infringes on freedom of expression guaranteed by the Constitution.
46. The Court additionally found that the impugned section provided for an offence in broad and unspecific terms such that the person charged under it may not know how to answer it. This is because the impugned Act failed to define terms such as ‘obscene’ or ‘material that is lascivious or appeals to the prurient interest’ and failed to explain how or who shall determine if the publication’s effect is to deprave and corrupt persons coming across it therefore leaving the words to the subjective interpretation by investigative agents, prosecution or the court trying the case.
47. The Court added that it is trite that a law particularly one creating a criminal offence should be clear and unambiguous and should not be used widely and vaguely that it nets anyone who may not have intended to commit the offence.
48. The Court having considered the impugned Act against the Constitution and taking into account judicial precedents on the right to freedom of expression, found that the provision, Section 84D of KICA was too retrogressive to fit into the modern, open and democratic society envisaged under the current disposition.
49. Moreover, the impugned section was too wide in scope, punitive in intent and suppressive in effect to be tolerated by the new Constitution and as such the impugned section is inconsistent to Article 33, 50(2)(b) and 25(c) of the Constitution as it suppresses freedom of expression and denies the accused the right to a fair trial through vagueness and ambiguity.