Case Summary and Outcome

The High Court of Kenya found a provision criminalizing “grossly offensive” statements, and false statements that are annoying, inconvenient or causing needless anxiety, to be unconstitutional because it was vague and unjustifiably limited freedom of expression. The case arose out of Geoffrey Andare’s post in a community Facebook group accusing Titus Kuria, a representative of a scholarship trust, of using his position of authority to sleep with young girls seeking scholarships. Kuria brought a criminal complaint against Andare under Section 29 of Kenya’s Information and Communication Act that broadly criminalizes indecent or false information. While the case was pending in criminal court, Andare brought a petition to challenge the constitutionality of the Section 29. The High Court held that Section 29 was unconstitutional because it unjustifiably limited freedom of expression and because it was worded in vague terms.

Facts

Geoffrey Andare made a post on a community Facebook page accusing Titus Kuria, a representative of the Canada-Mathare Education Trust, of forcing young girls to sleep with him to receive scholarship funds. The message read, “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.” Titus Kuria brought a complaint against Andare, who was then charged by the Attorney General of a criminal violation under Section 29 of the Kenya Information and Communication Act.

Section 29 reads: “A person who by means of a licensed telecommunication system—

1. sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
2. 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.”

Andare brought a petition to the High Court of Kenya challenging the constitutionality of Section 29, while he was arraigned in the Milimani Criminal Case No. 610 of 2015, Republic vs Geoffrey Andare. He argued that Section 29:

1. criminalizes publication of certain information in vague and overbroad terms;
2. has a chilling effect on the Constitutional guarantee to freedom of expression; and
3. creates an offense without establishing the requisite mens rea (mental state) on the part of the accused person.

In addition to requesting that the High Court declares the Section unconstitutional, Andare also requested the court to order the Attorney General to stop his prosecution.

ARTICLE 19 East Africa, a non-governmental organization that focuses on protecting the right to freedom of expression, appeared as an interested party in the case and supported Andare’s arguments. Particularly, ARTICLE 19 argued that Section 29 was overly broad and thus “net[s] a very large amount of protected and innocent speech. It submitted by way of illustration that a person may discuss or even advocate by means of writing disseminated over the internet information or licenced telecommunications device content that may be a point of view pertaining to governmental, literary, scientific or other matters which may be offensive to certain sections of society.” (as summarized at para 27 of the judgment) ARTICLE 19 also argued that the Section failed to set-out a requisite mens rea for the crime, violating criminal law principles. Lastly, ARTICLE 19 argued that the Section created constitutionally unjustified limitations to freedom of expression.

In turn, the Attorney General asserted that the words used in the Section were “clear and their literal meaning clearly brings out the mischief which they were intended to cure, as well as the cure provided.” [para. 35] Moreover, the Attorney General argued that the Section balanced freedom of expression with the protection of the reputation of others.

The Director of Public Prosecutions (DPP) joined the case as a respondent and argued that the decision to prosecute “was informed by the sufficiency of evidence on record and the public interest, and not on any other considerations.” [para 43] The DPP also agreed with the Attorney General that “freedom of expression of any person which is protected under Article 33 [of Kenya’s Constitution] is also regulated by the same Article. Consequently, any person who exercises the freedom is required to do so in such a way that the rights of others are not violated.” [para 46]

Decision Overview

Judge Mumbi Ngugi delivered the opinion of the High Court of Kenya, Constitutional and Human Rights Division.

The main issue before the court was the constitutionality of Section 29 of the Kenya Information and Communication Act. First, the Court discussed whether Section 29 was vague and overbroad. The Court noted that the Act provided no definition of the key operative words: “grossly offensive”, “indecent”, “obscene”,  “menacing character”, “annoyance”, “inconvenience”, “anxiety”. The Court asserted that “the words are so wide and vague that their meaning will depend on the subjective interpretation of each judicial officer seized of a matter”. [para. 77] Referencing the European Court of Human Rights judgment in Sunday Times v. United Kingdom, the Court held that this left an unconstitutionally wide margin of interpretation and failed to provide certainty with regard to the conduct that the Act sought to criminalize.

Secondly, the Court discussed whether the provision unduly limited the right to freedom of expression. Referencing the Ugandan Supreme Court decision in Onyango-Obbo v. Attorney-General, the Court stressed the importance of the right to freedom of expression in a democratic society and that the state had to demonstrate that the limitation was reasonable and justifiable in an open and democratic society. Moreover, the Court referenced Article 24 of the Constitution and the Canadian case of R. v. Oakes to highlight the State’s duty to establish the purpose and importance of a limitation on freedom of expression, the relationship between the limitation and its purpose, and to demonstrate that no less restrictive means to achieve the intended purpose exist. The Court held that the State had failed to establish any of these requirements, providing further grounds for ruling that the provision was unconstitutional.

Summing up, the Court noted that less restrictive means for protecting reputation online were available through regular libel laws and ordered the DPP to stop the prosecution. The Court did not rule on the mens rea arguments.