Win for Kenyan Media, Court Rules Criminal Defamation Laws Unjustified

The Kenyan High Court ruled that criminalizing defamation is unjustifiable on grounds that it infringes on freedom of speech as enshrined in the Constitution.

The court found that the prospect of criminal proceedings and a jail term of up to 2 years for defamation was unnecessary, excessive and unjustifiable.

“The chilling effect of criminalising defamation is further exacerbated by the maximum punishment of two years’ imprisonment for any contravention of section 194,” he ruled.

“This penalty in my view is clearly excessive and disproportionate for purposes of suppressing objectionable or opprobrious statement. The accomplishment of that objective certainly can’t countenance the specter of imprisonment as a measure that is reasonably justifiable in a democratic society.”

Kenya High Court rules Section 194 of the Penal Code creating criminal defamation unconstitutional since it limits freedom of expression.

— Ndung'u Wainaina (@NdunguWainaina) February 6, 2017

According to Section 194 of the Penal Code:

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 misdemeanour termed libel.

 Henry Maina, Article 19 Eastern Africa Regional Director termed the ruling as a ‘big win.’

“This judgement is a huge win for freedom of expression in Kenya, and an encouraging step towards respect for human rights. ARTICLE 19 is pleased to see that the threat to freedom of expression presented by criminal defamation laws has been recognised by the courts, in line with the African Commission on Human and Peoples Rights,” said Henry Maina, Director of ARTICLE 19 Eastern Africa.

What it means is that, we have one less law to be used to criminalise journalism and freedom of expression and second is that defamation will remain a civil wrong, but not a crime that could earn a journalist a maximum of 2 yeas in prison he clarified.

Victor Bwire, the Deputy Chief Executive Officer and Programmes Manager at Kenya Media Council of Kenya welcomed the ruling, “Great News especially media.”

Miriam Mbomett, Manager, Legal and Regulatory at the Kenya Association of Manufacturers (KAM Kenya) and with an interest in freedom of expression welcomed the ruling and hoped the court gave directions on how it would be implemented.

“I have not seen the decision yet, but I hope the court gave directions to have the provisions removed in the law by parliament,” she noted.

“Today’s ruling from Kenya’s High Court is an important victory in the fight to protect media freedom,” CPJ Africa Program Coordinator Angela Quintal said. “We call on the government not to contest the ruling and to amend the penal code to safeguard press freedom.”

Last year, Justice Mumbi Ngugi declared that the provisions of Section 29 of Kenya’s Information and Communication Act (KICA) are indeed incompatible with the Kenya Constitution on these grounds, declaring them ‘null and void’.

Section 29 of the Kenya Information and Communications Act (KICA), regarding ‘improper use of a licensed telecommunications system,’ has been increasingly used by state officials to target those communicating online.

Article 19 East Africa had noted that, the terms of the law are extremely vague, including terms such as ‘grossly offensive’, ‘indecent’, ‘obscene ‘menacing’, ‘causing annoyance’ ‘inconvenience’ or ‘needless anxiety’.

The section provides as follows:

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 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.

 According to Maina,” We still have similar provisions and Article 19 welcomes public spirited colleagues to identify cases we may use to challenge their constitutionality.”

“The Kenyan government should seek to immediately review similar laws that unjustifiably limit the right of Kenyans to seek, receive and impart information as enshrined in the Constitution of Kenya (2010).”

The Kenya’s constitution recognizes and protects the right to freedom of expression and opinion, including the freedom of the media.

However, in the recent past, the country has witnessed the increasing incidences of violation of these rights, including through claw backs contained in new legislation and state practices that continue to derogate and limit these rights.

The judgment arose out of a case filed by Jacqueline Okuta and Jackson Njeru challenging charges of criminal defamation brought against them arising out of Facebook post about a prominent Kenyan lawyer on a consumer protection Facebook page called ‘Buyer Beware’.

Related: Kenyan Constitution: The Sources of Kenyan Law