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Okuta v. Attorney General

On Appeal Expands Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    February 6, 2017
  • Outcome
    Decision Outcome (Disposition/Ruling), Law or Action Overturned or Deemed Unconstitutional, Declaratory Relief
  • Case Number
    [2017] eKLR (Petition No. 397 of 2016)
  • Region & Country
    Kenya, Africa
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Criminal Law, Constitutional Law, International/Regional Human Rights Law
  • Themes
    Defamation / Reputation
  • Tags
    Criminal Defamation, Facebook, Imprisonment

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Case Analysis

Case Summary and Outcome

The High Court of Kenya declared the offence of criminal defamation under section 194 of the Kenyan Penal Code to be unconstitutional. Two Kenyan nationals were charged with criminal defamation for statements made on a Facebook page. They subsequently challenged the constitutionality of the offence, which carried the maximum penalty of two years’ imprisonment. In a groundbreaking ruling, the High Court of Kenya declared that section 194 was unconstitutional as it was a disproportionate limitation on the right to freedom of expression. The Court concluded that the invocation of criminal defamation for the purpose of protecting a personal reputation was “clearly excessive and patently disproportionate” and that there was an alternative civil remedy for defamation.


Facts

In 2016, Jacqueline Okuta and Jackson Njeru (the Petitioners) were charged with criminal defamation for statements made on a Facebook page entitled “Buyer Beware-Kenya”. The charges alleged that the statements were defamatory because they inter alia accused named individuals of being wanted for illegal possession and handling of property.

The charges were brought under section 194 of the Kenyan Penal Code, which provides that:

“Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanor termed libel.” [p. 3]

A conviction under this provision can result in a prison sentence of up to two years.

Subsequently, the Petitioners submitted a joint petition to the High Court of Kenya in Nairobi to challenge the constitutionality of section 194 on the basis that it was not a reasonable or justifiable restriction on the right to freedom of expression, and that the civil tort of defamation was sufficient to protect the fundamental rights of others.

They cited three constitutional provisions in supporting their claims. They first submitted that Article 2(5) and 2(6) of the Constitution of Kenya subsumed international human rights treaties and their general principles into Kenyan law. In this regard, the Petitioners highlighted that international bodies responsible for interpreting these treaties had consistently called upon states to decriminalize defamation. Secondly, the Petitioners submitted that section 194 could not be considered a reasonable limitation under Article 24 of the Constitution, which set out the parameters within which a government can justifiably limit certain constitutional rights by law, including the right to freedom of expression. Thirdly, the Petitioners stated that, while the right to freedom of expression under Article 33 of the Constitution was not absolute, criminal defamation was a “disproportionate instrument for protecting the reputations, rights, and freedoms of others.” [p. 3] Moreover, the Petitioners argued that criminal sanctions on speech ought to be limited to only the most serious cases as set out under Article 33(2)(d) of the Constitution, namely propaganda for war, incitement to violence, hate speech or advocacy of hatred based on discrimination.


Decision Overview

Justice John Mativo delivered the opinion of the High Court.

Justice Mativo began by highlighting the sanctity and significance of the right to freedom of expression under Article 33 of the Constitution. He observed that “[f]reedom of speech and expression in a spirited democracy is a highly treasured value. The media, [a]uthors, philosophers and thinkers have considered it as a prized asset to the individuality and overall progression of a thinking society, as it permits argument, allows dissent to have a respectable place, and honours contrary stances.” [p. 5]

Justice Mativo began by setting out Article 33 of the Constitution, protecting the right to freedom of expression, and Article 24 of the Constitution, providing for the limitation of rights and fundamental freedoms. Article 24 states that  fundamental rights and freedoms shall only be limited by law and “only to the extent that the limitation is reasonabl[e] and justifiable in an open democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including” the nature of the right/freedom, the objective of the limitation, and the existence of less restrictive means to achieve the objective. [p. 5]

By applying canons of interpretation, Justice Mativo held that the constitutionality of section 194 could not be examined within the scope of Article 24 because “criminal defamation aims to protect individual interest while the limitations under Article 24 seek to protect public interest as opposed to person[al] or individual interests.” [p. 6] Accordingly, he held that “defamation of a private person by another person cannot be regarded as a ‘crime’ under the constitutional framework.” [p. 7]

Justice Mativo then went on to consider whether criminal defamation could be considered a permissible restriction on the right to freedom of expression on the basis that it is a provision “designed to protect the reputations, rights and freedoms of other persons.” [p.8] To determine whether the offence was constitutionally justified, Justice Mativo set out and applied the test of proportionality. He reasoned that an offence will be proportionate when it meets the following criteria:

(i) it is designated for a proper purpose;

(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose;

(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and

(iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.

Following an analysis of comparative and international jurisprudence, Justice Mativo  found that the offence of criminal defamation was not reasonably justifiable in a democratic society. He reached this conclusion by taking into account two considerations: (i) the consequences of criminalizing defamation, and (ii) whether there is an appropriate and satisfactory alternative remedy to deal with the mischief of defamation. Justice Mativo took into account the practical consequences of a complaint in criminal defamation, which included investigation, threat of arrest, charge, prosecution, remand, the rigorous ordeal of a trial, and legal fees. He concluded that this had a stifling or chilling effect on freedom of expression. He went on to note that this chilling effect was exacerbated by the “drastic” maximum sentence of two years in prison. He also highlighted the fact that there was an alternative civil remedy for defamation, and this was a compelling reason to find the offence of criminal defamation unnecessary and not reasonably justifiable.

Accordingly, Justice Mativo concluded that section 194 was a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of others. Therefore, he held that it was “absolutely unnecessary  to criminalize defamatory statements.” [p. 13] He declared section 194 and its continued enforcement against the Petitioners unconstitutional and invalid.


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This is a significant decision as it is the first time a Kenyan court has ruled the offence of criminal defamation unconstitutional for violating the right to freedom of expression. Moreover, the decision makes Kenya the second African state after Zimbabwe to have its courts make such a finding. In fact, the judgment cites and adopts many of the arguments made by the Constitutional Court of Zimbabwe in Madanhire v. Attorney General. The judgment also builds on landmark decisions from the Kenyan courts finding that criminalising speech will often be unnecessary if there is a civil law remedy capable of serving the same purpose (Andare v. Attorney General). This is an influential judgment for the African continent and beyond, with a majority of countries around the world maintaining criminal defamation/libel laws.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • AfCHPR, Lohé Issa Konaté v. The Republic of Burkina Faso, App. No. 004/2013
  • U.N. G.A., Res. 59

    “Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated.”

  • UNHR Comm., General Comment No. 34 (CCPR/C/GC/34)

    • “A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.”

    • “Defamation laws must be crafted with care to ensure that they comply with paragraph 3 [the derogation clause in Article 19 of the Covenant], and that they do not serve, in practice, to stifle freedom of expression. …. Care should be taken by States Parties to avoid excessively punitive measures and penalties. …. States Parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”

  • ICCPR, art. 19
  • UNHR Comm., Adonis v. The Philippines, Comm. No. 1815/2008

    • “The Committee takes note of the author’s allegation that his conviction for defamation under the Philippine Penal Code constitutes an illegitimate restriction of his right to freedom of expression because it does not conform to the standards set by article 19, paragraph 3, of the Covenant. The author maintains, in particular, that the criminal sanction of imprisonment established by the Philippine Revised Penal Code for libel is neither necessary nor reasonable …. Article 19, paragraph 3, lays down specific conditions and it is only subject to these conditions that restrictions may be imposed, i.e. the restrictions must be provided by law; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality …. In light of the above, the Committee considers that, in the present case the sanction of imprisonment imposed on the author was incompatible with article 19, paragraph 3, of the Covenant.”

  • UN, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, A/HRC/7/14 (2008)

    2008 UN Special Rapporteur on Freedom of Opinion which described criminal defamation law as overly broad in scope and application and has turned into a powerful mechanism to stifle investigative journalism and silence criticism.

  • ACmHPR, Res169 (XLVIII) 2010: Resolution on Repealing Criminal Defamation Laws in Africa

    • “criminal defamation laws constitute a serious interference with freedom of expression and impedes on [sic] the role of the media as a watchdog, preventing journalists and media practitioners to practice [sic] their profession without fear and in good faith;”
    • Accordingly, the Commission calls upon States Parties to the African Charter on Human and Peoples’ Rights: “to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments.”

National standards, law or jurisprudence

Other national standards, law or jurisprudence

  • U.S., Speiser v. Randall, 357 U.S. 513 (1958)

    In the words of American Supreme Court, it is “absolutely indispensible for the preservation of a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all, even the most despised minorities”

  • U.S., Palko v. Connecticut, 302 U.S. 319 (1937)

    • The right to freedom of speech and expression has been described as the “touchstone of individual liberty” and “the indispensable condition of nearly every form of freedom.”

  • Can., Charter of Rights and Freedoms, sec. 1

    “Section 1 of the Canadian Charter guarantees the rights and freedoms in the Charter ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

  • Can., R. v. Oakes, [1986] 1 S.C.R. 103

    • Dickson CJ said that to establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. a) The first criterion concerned the importance of the objective of the law. First, the objective, which the measures responsible for a limit on a constitutional right or freedom are designed to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.[25] b) Secondly, the means chosen for the law must be ‘reasonable and demonstrably justified’, which involves ‘a form of proportionality test’ with three components: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair ‘as little as possible’ the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance.’
    • In each case, Dickson CJ said, courts will be ‘required to balance the interests of society with those of individuals and groups’

  • U.K., R (Nicklinson) v Ministry of Justice [2014] 3 All ER 843
  • U.K., Bank Mellat v HM Treasury (No.2) [2014] AC 700
  • U.K., R (Lord Carlile) v Home Secretary [2014] 3 WLR 1404
  • Austl., Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2)

    ‘A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—(a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve’

  • Austl., Human Rights Act 2004 (ACT) s 28. Australian Capital Territory
  • Austl., Hogan v. Hinch, (2011) 243 CLR 506

    “This is part of the second limb of the Lange test. ‘The test adopted by the Court in Lange v Australian Broadcasting Corporation, as modified in Coleman v Power, to determine whether a law offends against the implied freedom of communication involves the application of two questions: 1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect” 2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people.'”

  • Austl., Roach v Electoral Commissioner (2007) 233 CLR 162
  • N.Z., New Zealand Bill of Rights Act 1990 (NZ) s 5
  • Zim., Munhumeso & others, 1994 (1) ZLR 49 (S)

    “What is reasonably justifiable in a democratic society is an illusive concept – one which cannot be precisely defined by the courts. There is no legal yardstick save that the quality of reasonableness of the provision under challenge is to be judged according to whether it arbitrarily or excessively invades the enjoyment of a constitutionally guaranteed right.”

  • Zim., Nyambirai v. National Social Security Authority, 1995 (2) ZLR 1 (S)

    • “In effect the court will consider three criteria in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary or excessive. It will ask itself whether:- (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative object are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

  • Zim., Madanhire v. Attorney Gen., [2014] ZWCC 2 (Jun. 12, 2014)

    • On the international scene, it significance to point out that the United Nations Commission on Human Rights is recorded as having decried recourse to criminal defamation in order to stifle free speech:- “Detention as a sanction for the peaceful expression of opinion is one of the most reprehensible practices employed to silence people and accordingly constitutes a serious violation of human rights”. [p. 12]

  • Austl., Lange v. Austl. Broad. Corp., (1997) 189 CLR 520
  • India, Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others, {1987}1 SCC 424

    Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others {1987} 1 SCC 424 observed that:- “Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.” [p. 7]

  • India, Ahmedabad Pvt. Primary Teachers’ Assn. v. Administrative Officer and others, {2004} 1 SCC 755

    The above maxim was ably discussed by the Supreme Court of India in Ahmedabad Pvt. Primary Teachers’ Assn. v. Administrative Officer and others {2004} 1 SCC 755, where it was stated that the maxim noscitur a sociis is a legitimate rule of construction to construe the words in an Act of the Parliament with reference to the words found in immediate connection with them. [p. 6]

  • India, K. Bhagirathi G. Shenoy and others v. K.P. Ballakuraya and another {1999} 4 SCC 135

    The pristine principle based on the maxim noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has much relevance in understanding the import of words in a statutory provision.

General Law Notes

Additional References

  1. John B. Bury, A History of Freedom of Thought, International Debate Education Association (2d ed. May 1, 2007)
  • “Bury in his work History of Freedom of Thought has observed that freedom of expression is ‘a supreme condition of mental and moral progress.’” [p. 5]

2. Justice G.P. Singh, Principles of Statutory Interpretation 509 (13 ed. 2012)

  • In this regard, we may refer to a passage from Justice G.P. Singh, Principles of Statutory Interpretation (13th Edn. 2012 p. 509) where the learned author has referred to the lucid explanation given by the court (Gajendragadkar, J.) in the said case. I find it appropriate to reproduce the passage below:- “It is a rule wider than the rule of ejusdem generis; rather the latter rule is only an application of the former. …The rule has been lucidly explained …… in the following words: “, ……, means that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general rule. ” [p. 6]

3. Louis Henkin, The Age of Rights 4 (Columbia University Press, 1990).

  • “Government may not do some things, and must do others, even though the authorities are persuaded that it is in the society’s interest (and perhaps even in the individual’s own interest) to do otherwise; individual human rights cannot be sacrificed even for the good of the greater number, even for the general good of all. But if human rights do not bow lightly to public concerns, they may be sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary.” [p. 8]

4. Aharon Barak, Proportionality: Constitutional Rights and Their Limitations 3 (Cambridge University Press, 2012).

  • Former President of the Supreme Court of Israel, Aharon Barak, said proportionality can be defined as ‘the set of rules determining the necessary and sufficient conditions for a limitation on a constitutionally protected right by a law to be constitutionally protected’. [p. 8.]

5. G Huscroft, B Miller and G Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, 2014).

  • Leading Authors G. Huscroft, B Miller and G Webber (eds) have authoritatively stated the jurisprudence of proportionality includes this ‘serviceable—but by no means canonical—formulation’ of the test:– i. Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right” ii. Are the means in service of the objective rationally connected (suitable) to the objective” iii. Are the means in service of the objective necessary, that is, minimally impairing of the limited right, taking into account alternative means of achieving the same objective” iv. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation; in short, is there a fair balance between the public interest and the private right”[p. 8]

6.  Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10 International Journal of Constitutional Law 709.

7.  Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23             Melbourne University Law Review 668, 677.

8. Vinayak Bhardwaj and Ben Winks, “The Dangers of Criminalizing Defamation,” In the Mail & Guardian of 1 November 2013

  • “Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interests. Criminal law exists to ensure retribution and protection of the public, by detaining offenders and deterring others from offending. For assault, imposing imprisonment or supervision is essential to protect the victims and the public at large. For damaging speech, however, the civil law is as effective, if not more so, in providing the public with proportionate protection from offenders. Crucially, freedom of expression is constitutionally enshrined and encouraged, as the lifeblood of democracy. The freedom to wield fists and firearms enjoys no similar status in our supreme law. Thus the analogy between assault and defamation breaks down. It is an unreliable guide to finding an appropriate balance between the rights to dignity and free speech. It is also disputable that civil and criminal defamation impose equivalent limitations, and that the harsher consequences of criminal liability are neatly offset by the heavier burden of proof. There are important differences in practice and in principle. First, a prosecution targets the journalist rather than the journal. A civil suit is aimed primarily at the defendant with the deepest pockets, Furthermore, while civil liability may be discharged within days, through payment or some other performance, criminal liability endures long after the sentence has been served, or even if the sentence has been suspended. Criminal liability is permanent and pervasive. It brands the accused with a mark so deep and indelible, it can be expunged only by presidential pardon. It stains every sphere of that person’s life. He becomes a criminal, and must disclose that every time he applies for a job, a visa or even a bank account. Even if the state does not discharge its onerous burden of proof, the very existence of the crime creates the risk of wrongful accusation, investigation, prosecution and even conviction, with all the associated inconvenience and scandal. These ills can barely be corrected on appeal, and thus the crime could easily be used to cow courageous journalists. It is this brand of public disapproval that criminal law rightly casts on murderers, rapists and thieves, precisely for its deterrent potency. The same objective could not and should not apply to injurious speech, the borders of which are elusive and essentially subjective.” [p. 12]

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

As a judgment of the High Court of Kenya, the decision establishes a persuasive precedent within its jurisdiction. However, on February 9, 2017, the Kenyan Director of Public Prosecutions filed a Notice of Appeal, setting out his intention of appealing the judgment.

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