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.