Case Summary and Outcome

The Nairobi High Court in Kenya ruled that a provision criminalizing the publication of “obscene information in electronic form” was an unjustifiable limitation of the rights to freedom of expression and to a fair trial. The case had been brought by an individual who had been charged with three counts under the provision related to tweets he had published which were critical of public officials and which used “impolite” language. The Court noted that the legislation in question had come into force before the adoption of the new Constitution in 2010 and represented an era where “government was used to forms of communication that it could easily access and control” [para. 52]. The Court held that the vagueness of the words and phrases in the provision allowed for subjective interpretation and so infringed on the right to freedom of expression and denied an accused a fair trial.

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Facts

On January 23 and April 26 2018, Cyprian Andama, a Kenyan citizen, was charged under section 84D of the Kenyan Information and Communication Act (KICA) for publishing “obscene information in electronic form.” Article 84D states: “[a]ny 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 [approximately USD2000 in 2019] or imprisonment for a term not exceeding two years, or both.”

The charges related to tweets Andama published on Twitter saying “Tell me it’s not true that the forefront sheep of God Matiangi bought a side bitch a house! I hope is public resources zinatumika. Every child has a weakness na hiyo weakness Ni eve Fruit”; “Kirinyaga idiots voted for this commercial sex worker, hoping for radical transformation. What’s the difference between this Malaya and Betty Kyalo who had Joho finance her new spa, Malaya in Malaya only the degrees vary”; and “Sonko TheKivisi ananunua tanks of oxygen, na anawika ati vile amefanya kazi, yet these same tanks zinakuwanga na wasee wa welding mtaani, umbwa wewe @MikeSonko. Fanya kazi, wacha umalaya na pombe. Hio umakanga yako ya Eastlands pelekea nyanyako.”

On June 7, 2018, Andama, filed an application challenging the constitutionality of section 84D in the High Court. Andama argued that the provision infringed articles 33 and 50(2)(b) of the Constitution, and sought a declaration that the continued use of the provision by the Director of Public Prosecutions (DPP) “violates the Bill of Rights and therefore militates against the public interest, the interest of the administration of justice and constitutes an abuse of the legal process” [para. 1]. Andama also sought an injunction barring the DPP from continuing the prosecution of Andama in the three cases brought against him in respect of his three tweets.

Article 33(1) of the Constitution protects the right to freedom of expression and states that “[e]very person has the right to freedom of expression which includes (a) freedom to seek, receive, import information or ideas; (2) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research”. Article 33(2) limits the protection of the right by stating that “the right to freedom of expression does not extend to (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that (i) constitutes ethnic incitement, vilification of others, or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27(4).” Article 33(3) requires that “[i]n the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”

Article 35 of the Constitution protects the right of access to information and states: “(1) Every citizen has the right of access to (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom; (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person; and (3) The State shall publish and publicize any important information affecting the nation.”

Article 50 of the Constitution protects the right to a fair trial, and article 50(2)(b) states that this includes that every accused person has the right “to be informed of the charge, with sufficient detail to answer it”.

Article 24 of the Constitution is a general limitation clause and requires that “[a] right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors”.

Article 25 lists the rights which can never be limited, and article 25(c) includes the right to a fair trial.

The case was brought against the Director of Public Prosecutions (DPP) and the Attorney General. Article 19-East Africa was admitted as an interested party to the case.

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Decision Overview

Judge Okwany delivered the judgment of the High Court in Nairobi. The central issue before the Court was whether section 84D was a justifiable limitation of the right to freedom of expression protected by article 33 of the Kenyan Constitution.

Andama argued that section 84D limited his freedom of speech and expression and that the legislative provision was vague and overbroad in respect of the meanings of “lascivious”, “appeals to the prurient interest” and “tends to deprave and corrupt persons.” Andama submitted that the provision included too wide a margin of subjective interpretation which would enable misinterpretation and abuse in the application of the offence and that this also infringed article 50(2)(b) of the Constitution. In addition, Andama argued that section 84D had a chilling effect on the rights to freedom of expression and to seek and receive information and was not a reasonable and justifiable limitation of the right to freedom of expression. Andama described the continuation of the prosecutions against him as an “insidious form of censorship.” [para. 8]

Article 19-East Africa submitted that the offence under section 84D was “vague and undefined” and had the effect of “arbitrariness in the application of criminal law against dissenting voices” [para. 14]. The organization submitted that it was not in doubt that the prosecution of Andama demonstrated that his rights had been limited and, with reference to the Canadian case of R v. Oakes [1986] 1 R.C.S, stressed that the presumption of innocence as a principle in criminal law requires that “criminal proceedings must be carried out in accordance with lawful procedures and fairness” [para. 15]. Article 19-East Africa submitted that section 84D did not constitute a “law” under the constitutional limitation analysis as it was not formulated with sufficient precision and that as section 84D did not have a “proximate relation” to the four permissible grounds for limitation under Article 33, it had no legitimate aim. The organization also submitted that, with reference to Okuta v. Attorney General [2017] eKLR, the provision was not necessary and so was not proportional.

The DPP argued that article 33 can be limited and referred to the case of Mutenga v. Republic [1986] KLR 167 which had held that constitutional rights can be limited to ensure that their enjoyment does not prejudice the rights of others. The DPP submitted that the interpretation of section 84D must be done in a way that gives effect to the general legislative purpose of the provision. In addition, the DPP argued that Andama had not sufficiently demonstrated that his rights had been infringed and that the relief sought to cease prosecution could only be obtained through judicial review.

The Attorney General argued that article 33 includes the internal limitation of “advocacy of hatred” which was defined as constituting “ethnic incitement, vilification of others or incitement to cause harm” [para. 22]. The Attorney General also submitted that the exercise of the right to freedom of expression must be done in a way that respects the rights and reputations of others [para. 22]. In addition, he added that “the mere fact that the term ‘obscene’ is not defined in the impugned Act does not mean that the Act is vague” and argued that the provision was a “replication of a similar law under the Indian Penal Code of 1860” and so was “reasonable and proportionate” [para. 24].

The Court discussed the principle of constitutional interpretation at length and examined comparative jurisprudence on the issue. It accepted that there is a rebuttable presumption of legality of statutes and noted, with reference to Mount Kenya Bottlers Limited v. Attorney General [2012] eKLR and Nairobi Metropolitan PSV Saccos Union Limited v. Count of Nairobi Government [2013] eKLR, that Courts should be slow to declare legislative provisions unconstitutional. The Court quoted with approval the Canadian case of R v. Big M Drug Mart 1985 CR 295 and the Ugandan case of Olum v. Attorney General [2002] 2 EA in holding that both the purpose and effect of the legislative provision in question must be considered in determining its constitutionality. With reference to the Tanzanian case of Ndyanabo v. Attorney General [2001] 2 EA 485 and the Ugandan case of Kigula v. Attorney General [2005] 1 EA 132, the Court stressed that fundamental rights provisions must be given a broad and generous interpretation

The Court stated that there are two main standards for determining constitutional validity: rationality, which applies to all legislation; and reasonableness or proportionality, which applies to legislation limiting the Bill of Rights.

In discussing the importance of the right to freedom of expression, the Court stated that as Kenya is a democracy “it is only through criticism that citizens make their leaders know when their actions may not be in the interest of the nation” and that “citizens cannot be freely expressing themselves if they do not criticize or comment about their leaders and public officers” (sic) [para. 43]. The Court noted that “the most heinous crimes against citizens have been committed by politicians because their baseness and perversity was hidden from the public scrutiny”, and added that the history of Kenya demonstrates that the “excesses of the state that were experienced during the repressive years of single party regime were perpetrated by the outright muzzling of the freedom of expression in order to suppress dissent by the citizens” [para. 44]. The Court then examined comparative jurisprudence which also discussed the importance of the right: the American case of New York Times v. Sullivan 376 U.S. 254 (1964); the Canadian case of Edmonton Journal v. Alberta [1989] 45 CRR 1; and the Indian case of Gandhi v. Union of India [1978] 2 SCR 621. The Court concluded that “[i]t is therefore important for public officers to tolerate all manner of criticism in an open and democratic state because people usually exercise the right granted to them by the constitution in which case legislation’s purpose should not be to suppress this right” [para. 47].

The Court examined the purpose of the KICA and section 84D specifically. It noted that the Act was enacted to provide for the establishment of a national Communications Commission, to facilitate the development of the information and communications sector as well as of electronic commerce and to facilitate the transfer of functions and powers from the Kenya Posts and Telecommunications Corporation to the newly-created Commission. The Court noted that the KICA was enacted only a year before the new Constitution was adopted in 2010 which had introduced “a wide array of fundamental rights and freedoms”, and that the KICA was enacted following the development of electronic communications and “at a time when the government was used to forms of communication that it could easily access and control” [para. 52]. The Court acknowledged that although the title of section 84D referred to controlling the publication of obscene material its effect has been to “instil fear and submission among the people considering the hefty fines and long prison terms” [para. 53]. The Court held that this “cannot be the object of any law in the face of the current constitutional dispensation when people enjoy a robust Bill of Rights” [para. 53].

The Court recognized that the right to freedom of expression was not absolute, but stressed that it can only be limited by the Constitution in terms of article 24. The Court rejected the DPP and Attorney General’s argument that the general limitations clause in article 24 did not apply because article 33 was not absolute as a result of the internal limitations in article 33(2) and 33(3): the Court held that an analysis under article 24 is mandatory and so any limitation to the right to freedom of expression must be justifiable in an open and democratic society based on human dignity, equality and freedom. The Court referred to the Oakes case as well as the Swazi case of Maseko v. Prime Minister of Swaziland [2016] SZHC n180 in finding that the state bore the onus of demonstrating the reasonableness and justification of the limitation.

The Court held that section 84D was not a justifiable limitation of the right to freedom of expression to the extent that it “purports to suppress dissent” and that the purpose of the legislation could have been achieved through less restrictive means such as civil defamation [para. 57].

In assessing whether the provision was sufficiently precise to meet the standard of “law” the Court referred to the U.S. case of Lanzetta v. New Jersey 306 US 888, the Tanzanian case of DPP v. Pete [1991] LRC (Const) 553, the Ugandan case of Mwenda v. Attorney General Petition Nos. 12/2005 and 3/2006 (CCU) and the Kenyan case of Andare v. Attorney General [2015] eKLR in emphasizing that criminal statutes must be specific enough to allow individuals to understand what is prohibited and not be so widely drafted as to criminalise untargeted conduct. The Court provided the Black’s Law Dictionary definitions of lascivious as “(of conduct) tending to excite lust; lewd; indecent; obscene” and prurient as “[c]haracterized by exhibiting or arousing inappropriate, inordinate, or unusual sexual desire; having or showing too much interest in sex” [para. 51]. It held that as section 84D did not define “obscene” and “material which is lascivious or appeals to the prurient interest”, or explain how the effect of “depraving” and “corrupting” persons would be determined the provision left too much to the subjective interpretation of law enforcement and was therefore impermissibly broad. The Court noted that “such an all-encompassing and vague statutory provision introduced prior to the enactment of the new Constitution, as an instrument of repression for the protection and cover up of felonies and scandals committed by those in power has no place in a free and democratic society that is governed by the rule of law” [para. 64].

The Court examined the circumstances of the present case and noted that Andama’s tweets indicated that he “may have been very unhappy about the misuse of power and public funds by public officers and the outcome of an election in Kirinyaga county” and that he “may have used very strong and impolite words in expressing his displeasure” but that “a democratic state should acknowledge constructive criticism of public or state officers as the hallmark of democracy and the means for public accountability” [para. 65]. With reference to the Mwenda case the Court emphasized that the “mere use of impolite language … should not necessarily be criminalized” [para. 66]. The Court held that criminalizing such conduct is unconstitutional as it amounted to “suppressing the right to hold different opinion from those in public office” [para. 65]. It added that public officers have a duty to serve rather than rule people and, with reference to the Malawian case of Nakandawire & another, Criminal Case Number 5 of 2010 case number 5 of 2010, the Nigerian case of Nwankwo v. S 1983 (1) NGR 366 and the Privy Council case of Hector v. Attorney General of Antigua and Barbuda (1991) LRC (const), stressed that the right to freedom of expression must extend to the right to criticize public officers and that public officers must therefore tolerate public criticism. The Court stated that this jurisprudence demonstrates that “it is no longer acceptable to use laws that prima facie 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” [para. 71]. Accordingly, the Court held that section 84D infringed articles 33, 25(c) and 50(2)(b) of the Constitution as it “suppresses freedom of expression and denies the accused the right to a fair trial through vagueness and ambiguity” [para. 73].

The Court concluded that section 84D “is too retrogressive to fit into the modern, open and democratic society envisaged under the current Constitution. The impugned section is too wide in scope, punitive in intent and suppressive in effect to be tolerated by our transformative Constitution” [para. 73]. Accordingly, the Court declared that section 84D was unconstitutional and invalid and that continued prosecutions against Andama would be unconstitutional and a violation of his right to freedom of expression.

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