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In the region, Kenya is regarded as a bastion of free expression. Kenya’s democratic journey has undoubtedly produced this freedom, highlighted by hard-won battles for democratic space by activists, students, lecturers, opposition figures, lawyers, and trade unionists. Following these struggles, a progressive constitution was drafted, protecting the right to seek, receive, and impart information in any form or medium.

In addition, the Constitution protects the right to information, media freedom and independence, public participation, and freedom of association and assembly. Free speech does not, however, extend to propaganda for war, incitement to violence, hate speech, and advocacy for hatred based on discrimination. Additionally, it requires us to respect others’ rights and reputations when exercising free speech.

Courts have played an important role in interpreting freedom of expression. Due to this process, many laws Kenyans had become accustomed to have been declared unconstitutional because they were in conflict with the Constitution. To summarise, Article 24 requires any limitation of a right to be clearly and concisely written in law so that the average person can understand and know its limits. As a second requirement, it must pursue a legitimate goal, while as a third requirement, the limitation must be proportionate and necessary.

Section 29 of the Kenya Information and Communications Act was declared unconstitutional by the High Court in 2015. By creating the offence of “Misuse of a licensed telecommunications system”, the law violated the requirement that a law limiting fundamental freedom must be clear and concise. It was illegal to convey a message through a phone or computer if it “causes annoyance, inconvenience or unnecessary anxiety to another person”, which was deemed to be too subjective by Justice Mumbi Ngugi.

An April 2017 High Court ruling invalidated a law criminalising “undermining the authority of public officer.” The Court said citizens had the right to criticise leaders. Justice Chacha Mwita said that criminalising dissent was synonymous with criminalising the right to disagree with public officials.

In February 2017, the High Court declared Criminal Defamation an unjustifiable restriction on freedom of expression in an open and democratic society. The Court found it unconscionable for a person to be subjected to arrest, plea, bail/bond, legal fees and the prospect of a prison sentence for saying or publishing defamatory words against someone else. The Court cited civil defamation as a less restrictive means of protecting others’ reputations.

Notably, the above laws were notoriously used to silence individuals who dared challenge those in power. Often they were used against human rights defenders, journalists and opposition figures. In 2018, there was some push back to the progressive direction of the courts when Parliament passed the Computer Misuse and Cybercrimes Act 2018. Publication of false, misleading or fictitious data or misinformation with the intention that it should be considered or acted upon was illegal under section 22 of the law. Furthermore, Section 23 reintroduced criminal defamation by criminalising the publication of false information calculated to create panic or chaos that discredits a person’s reputation.

Both provisions were challenged in the High Court, which upheld them. Due to the speed at which content moves in cyberspace, Justice James Makau opined that section 23 did not reintroduce criminal defamation. Furthermore, the Court did not examine how section 22 makes the state the arbiter of truth.

In the years since then, the two sections have been the basis for the arrests of two journalists reporting on corruption; Robert Alai for publications relating to Covid-19; Mutemi Wa Kiama for warning against further IMF loans to Kenyatta’s government; and former Minister Matiangi early this year.

First published in The Standard on 07th July 2023. Kindly reproduced here with permission from The Standard.

Demas Kiprono is a human rights lawyer and a Campaign Manager at Amnesty International Kenya. He writes in his personal capacity. Email: [email protected]

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