The rise and rise of online free speech in Kenya

Government's power to control and gag the freedom of expression through social media platforms is slowly diminishing, thanks to the bloggers and rights activists.

In the last eight years, the two groups have also reshaped the country's penal code and the criminal laws through various petitions filed in court against the State.

The arrest and prosecution of bloggers has led to a wide interpretation of the constitution and unsettlement of other laws used by the government to control the freedom of expression on the internet and criticism of public officers.

Right to criticise public officers

In one of the judgments, High Court Judge Wilfrida Okwany stated that "public office bestows on the public officer servant leadership, and therefore, the right to criticise public officers should not be criminalised merely as a means of suppressing dissent".

So far the bloggers have felled more than five laws used to gag and restrict free online speech.

For instance, recently blogger Cyprian Nyakundi and Article19 East Africa succeeded in overturning a section of the Penal Code that criminalised publishing of rumours and  alarming messages.

The said law, Section 66, criminalised publishing of ‘alarming publications’ that are likely to cause panic and fear.

Section 66 (1) stated that "any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanour."

In subsection (2) the law stated that "it shall be a defence to a charge under subsection (1) if the accused proves that, prior to publication, he took such measures to verify the accuracy of the statement, rumour or report as to lead him reasonably to believe that it was true".

Those found were liable to punishment of a  for the offence is a maximum fine of Sh5 million or imprisonment for a term not exceeding three years, or both.

But Justice Weldon Korir, in a judgment dated May 13, 2021 declared that the said Section of the Penal Code is unconstitutional and invalid for unjustifiably violating Articles 33 and 50 (2)(a) of the Constitution.

"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," said Justice Korir.

"... a provision such as Section 66 of the Penal Code is too retrogressive to fit into the modern open democratic society envisaged under the current Constitution. The impugned provision leaves room for speculative prosecution where the prosecutor hopes that the trial court perceives the law in the manner the prosecutor understands it."

He said that a citizen intending to express an opinion that may be unpopular with the rulers could predict with certainty whether or not the provision would be used to silence him or her. In other words, he said, the law is so wide in its catchment area that it cannot be said who will and who will not be netted by it.

The case stemmed from a criminal case facing Mr Nyakundi where he was charged with publishing "false rumour" on his Twitter handle.

In 2019, the blogger also got a win after the High Court declared Section 84D of the Kenya Information and Communication Act (KICA), 2009 unconstitutional.

The section criminalised "Publishing of Obscene information in Electronic form" and had recommended punishment of a fine not exceeding Sh200,000 or imprisonment for a term not exceeding two years, or both.

It stated that "Any person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both."

While invalidating the said law on July 31, 2019, Justice Wilfrida Okwany said it violates the Constitution and is invalid to the extent that it infringes on the citizens right to freedom of expression guaranteed under Article 33 of the Constitution.

She also found that the law "derogates the right to a fair hearing by providing for an offence in such broad and unclear terms thereby making it subject to the arbitrary and subjective interpretation by the Director of Public Prosecution or the court contrary to Article 50(2)(b) of the Constitution".

"The section criminalises the use of impolite, annoying or character assassinating remarks that would appear to displease those in public office a scenario that it at cross purpose with the intent and spirit of our transformative constitution.  There can be no denying that the subjects of criticism in the impugned publication are public/state officers," said the judge.

She added: It is no longer acceptable to use laws that are oppressive to the public for the sole purpose of protecting the dignity of public officers, thereby, violating people’s right to freedom of expression.  Any stifling of this right is by any means unconstitutional.

In 2017 the High Court issued a declaration that Section 132 of the Penal Code is unconstitutional and invalid. The section 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.

Blogger Robert Alai filed the petition after being arraigned before the Chief Magistrate’s court at Kiambu on December 17, 2014.

The offence stated in the charge sheet was that "while using the open source website Twitter, he posted the words “Insulting Raila is what Uhuru can do.  He hasn’t realised the value of the Presidency.  Adolescent President.  This seat needs Maturity”.

The DPP said the publication was calculated to bring into contempt the lawful authority of the President of the Republic of Kenya.

The petition raised a question of whether criticism of a public officer is a ground for limiting a fundamental right enshrined in the constitution.

The quashed law stated that " 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 offence and is liable to imprisonment for a term not exceeding three years".

However, Justice Chacha Mwita declared the law unconstitutional and invalid saying criminalizing criticism is a curtailment of the right to speak about public officers and it derogates ones right to hold opinion.

"A provision such as Section 132 of the Penal Code is too retrogressive to fit in a modern, open and democratic society. It is too wide in scope, punitive in intent and suppressive in effect to be tolerated by our constitution. The constitution protects people’s rights and prohibits laws that unreasonably and unjustifiably infringe those rights," said Justice Mwita.

In the judgment dated April 26, 2017 the judge further said it is the duty of the state to justify the derogation of a constitutional right.

In 2016 another internet user, Geoffrey Andare, managed to overturn section 29 of the Kenya Information and Communication Act.

The section provided that "a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or 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".

He filed the petition after being arraigned in court for the offence that he, through his Facebook account, posted grossly offensive electronic mail with regard to the complainant, a Mr. Titus Kuria, in which he stated that “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”.

Justice Mumbi Ngugi (now judge of appeals) ruled that the section was unconstitutional for 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.

"If the intention is to protect the reputations of others the prosecution of mean spirited individuals who post defamatory statements on social media does not achieve that.  I believe that libel laws provide for less restrictive means of achieving this purpose," said the Judge.

The court said that 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.

Defamation 

In 2016 two social media users, Jacqueline Okuta and Jackson Njeru managed to quash the offence of criminal defamation created under the provisions of section 194 of the Penal Code.

The quashed law 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."

Justice John Mativo in the judgment dated February 6, 2017 said the section is unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33 (2) (a)- (d) of the Constitution.

Article 33 (2) (a) to (d) says "The right to freedom of expression does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination specified or contemplated in Article 27 (4)."

"Upon promulgation of the constitution of Kenya 2010, it was expected that certain provisions in our laws were to be amended to align them to the letter and spirit of the constitution, but almost seven years later we still have such provisions in our statutes!," stated Judge Mativo.

The judge said 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 particularized under Article 33 (2) (a)- (d) of the constitution aim at protecting public interest.

"I take the view that the harmful and undesirable consequences of criminalising defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society like ours," said the judge.

"I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements."