The ruling by Justice John Mativo on the 6th of February provided an opportunity to examine criminal defamation within the context of Kenya’s 2010 Constitution. It was a judgment that builds on constitutional provisions in Article 33, coming after last year’s ruling by Justice Mumbi Ngugi who declared Section 29 of the Kenya Information and Communications Act (KICA) as unconstitutional.

These two cases are solidly building Kenya’s jurisprudence on freedom of expression, including internet freedoms. This specific case arose from Facebook posts by Jackline Okuta and Jackson Njeru who had earlier been sued by lawyer Cecil Miller under Section 29 of KICA but when it was declared unconstitutional, he moved to Section 194 of the Penal Code.

Jackson Njeru. Photo courtesy of Jambonewspot.com

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.”

It is therefore prudent to examine internet freedoms within the context of freedom of expression that Kenyans enjoy and are guaranteed in the Constitution. Article 33 of the Constitution states that every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.

In part 2, the right to freedom of expression does not extend to— (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that— (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).

In addition, the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. Here is where defamation comes in.

These two judgments share their meanings and interpretations of freedom of expression limits that are not provided for in the Constitution. They further elucidate limitation of rights and fundamental freedoms in Article 24 of the Constitution that have to be only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom

Before the 2010 Constitution, weekly The Independent editor Mburu Muchoki was charged and found guilty of criminal defamation. He was taken to court by the then Justice Minister Martha Karua over a 2004 story that was also covered in many mainstream media of her alleged affair with Catholic Priest Dr. Dominic Wamugunda. She never denied the allegations. Mburu Muchoki was jailed for one year and also fined
sh500, 000. The judgment was made in 2007.

The real threat of the section being used is alive and as evidenced by its use by Miller, so many others can decide to use it, especially during this electioneering period, where politicians will want to silence and intimidate genuine freedom of expression, using archaic and repugnant legal provisions.

As Kenyans await the next court battle on criminal defamation, following an appeal by the Director of Public Prosecutions (DPP), examining the judgment by Justice Mativo should shed light into why he found it right and just to declare Section 194 of the Penal Code unconstitutional.

First, the Judge looked at “reasonable restrictions” which can be expressed especially within the content of broader limitations to rights as expounded in Article 24 of the Constitution. He stated that those limitations are “intrinsically dangerous to public interest and would not include anything else”. Public interest being the core issue here, meaning safeguarding the State’s interests, he argued that Article 33 is intended to safeguard the interests of the State and the general public and not of any individual. Hence the limitations in Article 24 cannot be regarded as the source of authority for Section 194 of the Penal Code which makes defamation of any person an offence.

Secondly, the learned Judge argued that defamation of an individual by another individual is a civil wrong or tort. The common law remedy is an action for damages. Where one feels offended or aggrieved the right legal action is using the Defamation Act because it is a civil matter. He said “I propound that defamation of a private person by another person cannot be regarded as a ‘crime’ under the constitutional framework.” This is based on the reality that the Penal Code is an Act of Parliament establishing a code of criminal law.

Thirdly, the Judge was categorical that freedom of expression, coupled with the right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection. This right is prominently recognized and entrenched in virtually every international and regional human rights instrument.

Fourthly, he advanced that defamation is any democratic society is expected. He was quick to add that “the overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.”

Fifthly, the judge felt that the punishment in the section, two years imprisonment, has a chilling effect of criminalizing defamation. The penalty, he said is ‘excessive and patently disproportionate’ for the purpose of suppressing objectionable statements.

In determining its constitutionality, he found it to be contrary to limitations, in scope and ambit of both Article 24 of the Constitution and international and regional instruments. He therefore said that “it cannot be reasonably justifiable in a democratic society, hence, it offends the right to freedom of expression.”