Case Summary and Outcome

The High Court of Nairobi held that an offense which criminalized the bringing into contempt or exciting defiance to the lawful authority of a public officer was unconstitutional and invalid because it was an unjustifiable limitation of the right to freedom of expression. A prominent blogger and political commentator was arrested and charged with undermining the authority of the President after he described the President as immature in a tweet. The Court reasoned that the purpose for which the offense was adopted, namely to suppress dissent and protect the government at the height of a state emergency, was no longer valid; that the limitation on freedom of speech was neither sufficiently clear nor justified: and that public officers have to tolerate criticism in an open and democratic state.

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Facts

In December 2014, Robert Alai, a prominent blogger and social media personality, was arrested and charged with undermining the authority of a Public Official under section 132 of the Penal Code. Section 132 states that “[a]ny person who, without lawful excuse … 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, is guilty of offense and is liable to imprisonment for a term not exceeding three years” (para. 18).

Alai had described the President as an adolescent and immature when he wrote “Insulting Raila is what Uhuru can do. He hasn’t realized the value of the Presidency. Adolescent President. This seat needs maturity” on Twitter. Alai applied to the High Court for an order declaring section 132 unconstitutional and invalid and that the continued application of the offense against him was also unconstitutional. Article 19, a British organisation that works to defend freedom of expression rights, was admitted as an interested party and permitted to file and highlight submissions (paras. 2-3).

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Decision Overview

Mwita J delivered the judgment of the High Court.

Alai argued that the offense of “Undermining the Authority of a Public Official” was not appropriate in a multiparty democracy, and that individuals “must have a wide latitude to speak about their government” (para. 6). He submitted that the offense criminalized what should be regarded as “fair criticism in a free, open and democratic society, and that the criticism did not impair the capacity of the President to perform his duties”. With reference to the Nigerian case of Nwankwo v. S 1983 (1) NGR 336 Alai submitted that the offense was “untenable in the face of the freedom of expression guaranteed by the Constitution” (para. 9).

Alai argued that section 132 was an infringement of the right to freedom of expression protected by Article 33 of the Constitution. He accepted that the right can be limited, but only by law and when the law is reasonable and justifiable. He submitted that the Attorney General had not provided any evidence to justify section 132’s existence and that, in line with the Swazi case of Maseko v. Prime Minister [2016] SZHC 180, the “state has an obligation to justify existence of a law”. He further submitted that there was no nexus between the provision and the purpose of the limitation to the right to freedom of expression, and that the offense was therefore an unjustifiable limitation of that right (paras. 7-9).

Article 19 also argued that the offense was an infringement of the right to freedom of expression and cited the Indian case of Marathe v. The State of Maharastra Cri.PIL 3-2015  in support of its submissions. It submitted that criticism of public officials should be permitted, and that “the more senior a public servant officer, the more criticism will be directed at him and one should be prepared to tolerate such criticism” (para. 12). Article 19 agreed that the burden was on the state to justify the limitation of the right, and referred to the Canadian case of R v. Oakes [1986] SCR 103 in this respect.

With reference to the U.S. case of Grayned v. City of Rockford [1972] 405 US 104 and the Kenyan case of Andare v. Attorney General (2015) eKLR, it submitted that the words used in section 132 were vague and ambiguous and that they failed to meet the requirement that a law be clear and precise (para. 11).

The Attorney General argued that section 132 was a permissible limitation to the right to freedom of expression. He submitted that section 132 did not “shield public officials from criticism” and that, in any event, the right to freedom of expression did not “give one freedom to act in whatever manner he/she likes while exercising freedom of expression” (para. 14).

The Director of Public Prosecutions also made submissions. He focused on the need to preserve the dignity of public officials and argued that “declaring section 132 unconstitutional would be exposing public officials to ridicule and vilification” (para. 15).

Mwita stated that there is a “rebuttable presumption of legality, that the Act or provision was intended to serve the people and is therefore constitutional” (para. 25). However, he also referred to the Canadian case of R v. Big Drug Mart 1985 CR 295 and the Ugandan case of Olum v. Attorney General [2002] 2 E A which had both held that a Court is required to look at both the purpose of the legislation and its effect in determining whether a provision is constitutional (para. 21-23).

Mwita stated that “[t]he people of Kenya have a democratic right to discuss affairs of their government and leadership because of their right to freedom of expression … [t]hey cannot be freely expressing themselves if they do not criticize or comment about their leaders and public officers”. He continued, and said that “only through public criticism do citizens make their leaders know that certain actions may not be in the interest of the nation, and such criticism helps public officers understand the feelings of the citizens”. He referred to the Canadian case of Edmonton Journal v. Alberta [1989] 45 CRR 1 and the Indian case of Maneka Gandhi v. Union of India [1978] 2 SCR 621 which highlighted the importance of the right to freedom of expression (para. 30-32).

Mwita said that “public officers have to tolerate criticism in an open and democratic state” and a “legislation’s purpose should not be to suppress this right” (para. 32).

Mwita looked at the history of the offense in order to determine the purpose of the legislation and said section 132 was adopted “at the height of the state of emergency [and] the purpose was to suppress dissent among the natives with the object of protecting and sustaining the colonial government in power then”. He held that “[t]his cannot be the object of section 132 in the current constitutional dispensation when people enjoy a robust Bill of Rights” (para. 34).

Mwita said that there was no definition of “undermining authority of a public officer” which meant that its interpretation was left to the “subjective view of the person said to have been undermined” (para. 35).

The right to freedom of expression is protected by Article 33 which states that ““Every person has the right to freedom of expression”. Article 33(2) states that freedom of expression does not extend to “propaganda for war”, “incitement to violence”, “hate speech” or “advocacy of hatred”.

Mwita confirmed that “[i]n a democratic state, constructive criticism of public or state officers is the hallmark of democracy and the means for public accountability”. He commented that “[c]riminalizing criticism is not in accord with a transformative constitution, since public officers should routinely be open to criticism”. He held that criminalizing dissent amounted to “suppressing the right to hold different opinion from those in public office” (para. 35). In support of this, Mwita referred to the Nigerian case of Nwankwo v. S 1983 (1) NGR 366, the Privy Council case of Hector v. Attorney General of Antigua and Barbuda (1991) LRC (const) 237 (PC) and the Ugandan case of Mwenda v. Attorney General Petition Nos 12/2005 and 3/2006 (CCU) and said that all these decisions “amplify the fact that it is no longer tolerable to use laws that prima facie are oppressive to the public for the sole purpose of protecting the dignity of public officials” (para. 39).

Mwita then looked at whether the limitation of the right to freedom of expression by section 132 was justifiable. He said that the “limitation of a right must not only be reasonable but also justified by the party seeking to limit that right” (para. 45). Article 24 of the Constitution states that “a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom” (para. 46). He referred to the Kenyan case, Okota v. Attorney General [2017] eKLR in which the High Court ruled that the offense of criminal defamation was not reasonably justifiable in a democratic society (para. 58).

Mwita cited the Canadian case of R v. Oakes and the Swazi case of Maseko v. Prime Minister [2016] SZHC 180 which had both held that the onus of proving the justifiability of a limitation to a right lies on the party seeking to limit the right. He held that the Attorney General had not shown how section 132 fell within the list of permissible limitations to the right to freedom of expression in Article 33(2). He said that neither the Attorney General nor the Director of Public Prosecutions had justified the limitation, and held that the “only justification that section 132 meets is that it is a law limiting this fundamental right and not more” (para. 48-49).

Mwita concluded that “[i]n the present case, the state has not even in the remotest sense, attempted to show that the limitation was reasonable and justifiable” (para. 55).

In addition, Mwita held that section 132 was “too general, vague and wide to the extent that it is not clear when a person is said to have undermined a public officer’s authority” (para. 56). He referred to the Ugandan case of Mwenda v. Attorney General Petition Nos 12/2005 and 3/2006 (CCU) and the Kenyan case of Andara v. Attorney General [2015] eKLR and confirmed that a law limiting the right to freedom of expression must be sufficiently clear so that it does not “net anyone who may not have intended to commit what is criminalized by the section” and enables “individuals to conform their conduct to its dictate” (para. 56-57).

Mwita concluded that section 132 was “too wide in scope, punitive in intent and suppressive in effect to be tolerated by our constitution” (para. 60). He held that section 132 violated the right to freedom of expression and was therefore unconstitutional and invalid (para. 62). He ruled that a continuation of criminal charges against Alai would be unconstitutional and a violation of his right to freedom of expression.

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