Kenya has had its reputation for protecting free expression tarnished over the past two years, due to its increasingly harsh and arbitrary enforcement of the highly controversial Section 29 of the Kenya Information and Communications Act (KICA). This section of the law has been used to jail journalists and bloggers for their communications. However, a ruling last month by the Kenyan High Court in the Geoffrey Andare v. Attorney General case represents a beacon of hope for free expression in the region.
The KICA Act was amended in 2014, and the amendments made it possible for Section 29 to be misused to attack free expression, something Kenyan authorities seem to have been increasingly willing to do. In 2015, authorities prosecuted seven people; in 2016, they have prosecuted 13.
On April 19th of this year, Judge Mumbi Ngugi struck down Section 29. Unfortunately, in what could be interpreted a reprisal for her courageous ruling in favor of free expression, she was then transferred the very next day to a court in Kericho (upcountry), where she would be responsible for handling less controversial cases.
Now, the Kenyan government has a crucial decision: it can either accept the court’s ruling, and protect Kenyans’ fundamental human right to free expression, or fight it, and further erode Kenya’s reputation as a champion of free expression.
How does Section 29 threaten free expression?
Section 29 of KICA is the provision that has been used to threaten internet users and bloggers with arrests and prosecution. The clause states:
“(a) that a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) 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 Ksh. 50,000 or to imprisonment for a term not exceeding three months, or both.“
This provision is extremely vague, and authorities could therefore use it to prosecute anyone who disagrees with someone in a position of power, including government officials or members of the private sector and their families. As such it represents a powerful tool for silencing the voices of people who are dissenting from the government or otherwise critiquing those in power. This includes the voices of vulnerable at-risk groups: marginalized minorities, such as women; communities of color; journalists; bloggers; sexual rights activists; human rights defenders; and others who are not among the powerful elite in Kenya.
Section 29 stood in contravention of international human rights law standards for acceptable limitations on free speech. In the The Sunday Times v The United Kingdom case, the European Court of Human Rights stated that the law must be of “sufficient precision to enable the citizen to regulate his conduct.” This important ruling has been cited at the African Union and African Regional Economic Communities courts, and at various national constitutional courts in Africa and across the world.
In submissions before the court in Geoffrey Andare v. Attorney General, Kenya’s Attorney General (AG) Githu Muigai, and Director of Public Prosecutions (DPP) Keriako Tobiko, argued that Section 29 was aimed at protecting the reputation of others. However, Judge Ngugi rightly rejected this argument, highlighted the fact that there are already laws in place to deal with both libel and defamation.
Kenyan ruling is part of positive trend toward protecting expression
Access Now is heartened by the ruling in Kenya, which lights the way toward increased protections for free expression in the Sub-Saharan Africa region. We see it as part of a growing trend, in line with a December 2014 ruling by the African Court on Human and Peoples’ Rights, which found that imprisonment for defamation violates the right to freedom of expression. The court also condemned the use of criminal laws to restrict free speech in a broad range of circumstances.
Although the African Union ruling relates specifically to criminal defamation, the Kenyan ruling is similar in that Section 29 provisions were being used for the same purpose, to unlawfully curtail free speech. That is why Judge Ngugi struck down Section 29, determining that it violates Article 24 and 33 of Kenya’s Constitution.
The ruling in Kenya is also part of a larger trend, where constitutional courts in democracies in developing countries are protecting fundamental rights. Just last year, India’s Supreme Court struck down Section 66A of the Indian Information Technology Act, a provision similar to Kenya’s Section 29 of KICA.
As we note above, the Kenyan government must decide to accept the Geoffrey Andare v. Attorney General ruling, or fight it. And it appears, unfortunately, that the Communications Authority of Kenya may be planning to appeal the ruling, even though they were not originally involved in the case.
We call upon the Communications Authority of Kenya and the law officers of the government of Kenya to abandon plans to appeal the ruling and argue for the reinstatement of this unjust and overbearing law.
We also call upon nearby African Union member countries to reform any laws with vague, rights-harming clauses similar to Kenya’s Section 29.
Access Now is closely following the debate in the coming week, and we will remain vigilant and speak out against any attempt to undermine free expression in Kenya.