The High Court of Kenya is set to make a key judgment on a law that is being used to undermine internet freedoms on Monday. Justice Mativo John Muting’a will make the ruling in a constitutional petition challenging Section 194 of the Penal Code.
The petition arose from a case in which Jacqueline Okuta and Jackson Njeru were sued by lawyer Cecil Miller for defamation. The lawyer sought refuge from this section after Justice Mumbi Ngugi declared section 29 of the Kenya Information and Communications Act (KICA) unconstitutional last year. He had sued them using section 29, accusing them of misusing telecommunications device and causing anxiety to him for publishing posts on Facebook comments that he felt disparaged his character.
Section 194 of the penal code reads
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.
Ms. Okuta and Jackson Njeru challenged the constitutionality of the section, seeking courts reprieve in declaring it unconstitutional. They argued that the section sets limitations to freedom of expression not provided for in the Constitution.
The respondents to the case are the Attorney General and the Director of Public Prosecutions while the only Interested Party is Article 19 East Africa.
The penal code was legislated as an Act of Parliament to establish a code of criminal law. Criminal cases involve a suspect and the state yet for defamation, it is a civil matter because it involves individuals. It is this criminalization of defamation, a long discarded practice globally that this petition seeks to address.
The constitutional case, petition 397 of 2016 will be made on Monday, at 11am.