For once a court ruling left bloggers smiling
What you need to know:
- Before the trial could begin, Mr Andere and an NGO – Article19 East Africa, filed a petition in the High Court challenging the constitutionality of Section 29 of the Act.
Justice Mumbi Ngugi recently declared Section 29 of the Kenya Information and Communication Act (KICA) unconstitutional. Many bloggers were ecstatic and went into celebratory mode.
The section declared unconstitutional was titled "Improper use of system” and provides that:
A person who by means of a licensed telecommunication system—
(a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) 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.
Many social media users assumed the judge had now given them the power to abuse and malign others without restraint, using a licensed telecommunication system. But what exactly does the ruling mean for bloggers?
CHILLING EFFECT
To understand it, we must start from the beginning, where one Geoffrey Andere, the petitioner, was charged with improper use of a telecommunication system for allegedly posting abusive and offensive text on his Facebook page.
Mr Andere had alleged through a Facebook post that a local MCA named Titus Kuria was awarding educational grants to vulnerable girls in his ward using unorthodox means.
Mr Kuria filed charges under Section 29 of the Kenya Information and Communications Act and sought justice accordingly. But before the trial could begin, Mr Andere and an NGO, Article19 East Africa, filed a petition in the High Court challenging the constitutionality of Section 29 of the Act.
They argued that the section criminalises publication of certain information in vague and over-broad terms, and has a chilling effect on the guarantees to freedom of expression.
Despite spirited attempts by the Director of Public Prosecutions and the Attorney General's offices to convince her otherwise, Judge Ngugi agreed with the petitioner. In her long judgment, she made several findings.
EXISTING REMEDIES
The first was that Section 29 of the Act was indeed too broad and vague, such that potential offenders would not clearly know in advance what was criminal and what was not.
She felt that this was a clear violation of criminal jurisprudence, which requires that the law be clear and precise enough to communicate the nature of the offense to a potential offender.
In addition, she noted that whereas the Constitution has provisions for limiting freedom of expression, the provisions in Section 29 did not meet the constitutional threshold for limiting such freedoms.
In any case, she observed, any person feeling aggrieved by malicious or character assassination posts had the option of seeking redress using the comprehensive libel laws that already exist in Kenya.
With that explanation, she proceeded to grant the prayers of the petitioner and declared Section 29 of the KICA unconstitutional.
This was a great win, especially for the principles of freedom of expression and for bloggers in general. Note, however, that this is not the same thing as a licence to defame or assassinate the characters of others. Libel laws are very much alive and can apply with detrimental effect to the offenders.
