Bloggers and social media users are reshaping the law in their fight for free online speech.
According to court records, they have successfully fought at least five laws that regulate communication and the freedom of expression.
The said laws have been nullified and declared unconstitutional, a move that has reduced government’s power to control speeches on the internet.
The repealed laws include Section 132 of the Penal Code which created an offence known as “undermining authority of a public officer”.
Those found guilty of the offence were liable to imprisonment for a term not exceeding three years.
It did not provide option for a fine. The invalidation of the law emanated from a petition filed by blogger Robert Alai.
Another law that has been found to be unconstitutional is Section 66 of the Penal Code. It criminalised publishing of ‘alarming publications’ that are likely to cause panic and fear.
Those found guilty under this law were liable to punishment of a maximum fine of Sh5 million or imprisonment for a term not exceeding three years, or both.
The nullification emerged from a petition filed by blogger Cyprian Nyakundi. Another law is Section 84D of the Kenya Information and Communication Act (KICA) (2009) which criminalises the publication of obscene information online.
It recommended punishment of a fine not exceeding Sh200,000 or imprisonment for a term not exceeding two years, or both. The petition was also lodged by Mr Nyakundi.
Also down is section 29 of the Kenya Information and Communication Act (KICA) which prohibited improper use of a licensed communications system or sharing information that annoys or inconveniences another person.
Those found guilty were liable on conviction to a fine not exceeding Sh50,000, or to imprisonment for a term not exceeding three months, or to both. The law was declared unconstitutional following a petition filed by Mr Geoffrey Andare.
Another quashed law is section 194 of the Penal Code which created a criminal offence on the civil wrong of defamation.
It stated 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.”
The punishment was a maximum of two years in prison. The law was quashed following a petition filed by two Facebook users, Jacqueline Okuta and Jackson Njeru.
The laws were found to be invalid for infringing on citizens’ right to freedom of expression guaranteed under Article 33 of the constitution.
For instance, on defamation, the court held that the offence of criminal defamation is not reasonably justifiable in a democratic society.
Hence, criminal sanctions on speech ought to be reserved for the most serious cases particularised under Article 33 (2) (a) (d) of the constitution.
In one of the judgements, Justice Mumbi Ngugi (now judge at the Court of Appeal) said that the state is entitled to impose limitations on the right to freedom of expression.
However, such limitations must be on grounds which are permitted in the constitution, which, under Article 33(2), are propaganda for war, incitement to violence, hate speech, or advocacy of hatred.
Another judge, Weldon Korir, said: “This country has a constitution with a robust and progressive Bill of Rights which should not be stymied by criminal laws inherited from the pre-independence period or even the pre-2010 constitutional epoch.”
“The constitution protects the people’s rights and prohibit the enactment of laws that unreasonably and unjustifiably infringe on those rights,” stated Justice Korir.