Below is an excerpt from Henry O. Maina’s presentation for the 2016 Justice for Free Expression Conference. Download the full pdf version below.

POLITICALLY SMART, LEGALLY SOUND DECISIONS OR BOTH?

A CURSORY REVIEW OF JUDICIAL DECISIONS ON FREEDOM OF EXPRESSION IN SELECT COUNTRIES

ARTICLE 19 EASTERN AFRICA is doing a lot of work on improving the state of freedom of expression and other related developments in 14 Eastern African states. This brief paper is a quick peek into some of the organisational work-particularly insights into how the judiciary, both national and regional, has been gradually liberated from the shackles of the executive and through targeted influence is emerging as a strong ally in the promotion, defence and protection of freedom of expression.

But the situation is not all rosy. While some stories of positive decisions have been witnessed, cases of regressive decisions are not rare and in some cases the judiciary is still a lame duck often deferring to the executive decisions whenever there are hard questions on actions taken to unduly limit free speech.

Before getting into the details of the emerging trends, a brief about the context is necessary. The Eastern Africa region was home to numerous terrorist attacks and internal political strife. Thus security concerns especially in Kenya, Somalia, Burundi, South Sudan and Uganda have greatly influenced the contours within which the scope, nature and the exercise of freedom of expression, media freedom and access to information has been defined by these states. Similarly, most governments were either seen to lack political legitimacy or wanted to change constitutional term limits to extend their tenure in office. The media, civil society actors and political opponents were thus seen as the problem whenever they exercised their rights.

A quick peek on the jurisprudential and other developments in the region in 2015 indicate a few positive trends. Although courts continued to entertain prosecution of individuals perceived by the states to hold divergent opinions, in five select cases across five countries on media regulation, criminal defamation, anti-terrorism and misuse of telecommunications have been dismissed as offending free expression. A brief about the cases below.