What started as a private matter between Jackline Okuta and lawyer Cecil Miller turned out to be a significant win for freedom of expression online in 2017. Their dispute, as it manifested itself online and offline, could have been resolved through Defamation Act since it is a civil matter but the applicant being a lawyer had other ideas.

The dispute arose when Jackline Okuta took to Facebook to complain about the lawyer not taking care of his responsibilities over child custody. She solicited the help of a friend Jackson Njeru who they also shared Facebook administration rights in a group called Buyer Beware. Mr. Miller was informed by a friend about the potentially defamatory content posted there which he took issue with the manner and contents, arguing that his reputation and business was on the line.

He took to Section 29 of the Kenya Information and Communications Act (KICA) to sue the two. But when Justice Mumbi Ngugi declared it unconstitutional last year, he changed it to Section 194 of the Penal Code. Both sections of law had vague provisions limiting freedom of expression not contemplated by the Constitution.

The Penal Code sets out a code for criminal law. Essentially, these are issues or happenings considered a crime to the state, like murder. In these cases, state agencies like the police get involved. But in them, considering its ‘wealthy’ pre-colonial vestige, are provisions which cannot conform to the Constitution. Unless someone decides to challenge them when they are used against someone, they will continue being statutes and used to supress rights.

Here, the second significant thing happened when the defendants decided to challenge its constitutionality. Indeed while Geoffrey Andare filed the constitutionality of Section 29, Ms. Okuta and Mr. Njeru decided to free themselves and others, aligning to the leaderly saying that when you get to the top, send the elevator back down.

The defendants, having no money to hire a lawyer, took the leap of faith to self-represent. In the Judgment made by Justice John Mativo, he documents their struggle as involving being taken to courts in Kwale and Nairobi.

In the process, some help was nigh. Article 19 East Africa, the organization that advocates for freedom of expression worldwide through public interest litigation and capacity building applied and were enjoined in the case as an interested party. Their lawyer Demas Kiprono was also the one who helped declare section 29 of KICA unconstitutional.

Criminal defamation, in the wisdom of Justice Mativo, contained limitations which in scope and ambit do not align to the Constitutional limitations of rights in both Article 24 of the Constitution and international and regional instruments. While Article 24 enshrines limitations to rights, they must be reasonable and justified within democratic society. In addition, it did not align to limitations set in Article 33 (2) which lists propaganda for war, incitement to violence, hate speech, and advocacy of hatred as unallowable use of freedom of expression.

Before the Constitution breathed air to progressive freedom of expression provision, 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. Mburu Muchoki was jailed for one year and also fined sh500, 000.  The judgment was made in 2007.

This chilling effect of the sentence in the charge was also underlined by the learned Judge as ‘excessive and patently disproportionate.’

Jackson Njeru got himself entangled when he posted on Buyer Beware Facebook Group about Ms. Okuta being imprisoned under Section 29 of KICA, where he was seeking help to fundraise money to pay the sh50, 000 fines Ms. Okuta was to pay. Unknown to him, there was a court injunction against anyone posting anything about the case but ignorance of the law is no defence.

Jackson Njeru. Photo courtesy of Jambonewspot.com

In better explaining how criminal defamation is unreasonable and unjustifiable, Justice Mativo uses various cases in countries like Zimbabwe, Israel and India. He also uses international law like African Court on Human and People’s Rights and the International Covenant on Civil and Political Rights among others to discuss the global basis of decriminalizing defamation.

He authors that world over there is an understanding that defamation of a private person by another person cannot be regarded as a ‘crime’ under the Constitutional framework. Criminal defamation aims to protect individual interest while the limitations under Article 24 of the Constitution seek to protect public interest as opposed to person or individual interests.

He adds that Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under Article 33 of the Constitution. Article 33 is meant to include the public interest and not that of an individual. Therefore, the said constitutional provision cannot be the source of criminal defamation.

According to the judgment, the offence of criminal defamation operates to impede and restrict the freedom of expression enshrined in Article 33 of the Constitution. It continues that fundamental rights are conferred in public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest. Therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which aims at largely protecting public interest.

“There can be no doubt that the 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.”

He also says that a key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. Considering that there is already remedies in Defamation Act that are proportionate but also civil, criminal defamation cannot stand. In addition, he asserts that the penalty for criminal defamation is two years imprisonment which he says is a drastic measure yet the tort of defamation provides for a lesser drastic and equally sufficient remedy.

The Kenya ICT Action Network (KICTANet), a multi stakeholder network which aims to act as a catalyst for reform in the ICT sector has had several discussions on defamation online. Whenever court cases or global discussions come up on defamation issues, members discuss it, providing insights that could help inform policy.

For instance, in the case in which Kirinyaga Gubernatorial candidate Anne Waiguru sued Google and Daily Post for defamation in Kenya, a member argued that the case will have huge implications for the start up community in defining the limits of third party liability in Kenya. “I personally fall on the side of severely limiting such liability as a company can’t be expected to police its users. I think though if it is proven to have been defamation, Google is obligated to pull the blog down if its owner refuses to pull the articles down,” the member added.

In another argument where the Communication Authority of Kenya was urging companies to host their websites locally, members argued that the move is aimed at addressing issues like defamation. Here a member said “If I defamed someone on a blog hosted locally, it is easier to enforce a pull-down order from a local court as opposed to if the content sits abroad and physically under a different jurisdiction. Enforcement is therefore easier because one can walk up to the server room and make arrests if the techies decline to implement an order.”

It may yet be time to celebrate as the Director of Public Prosecution (DPP) has filed a notice to appeal.  But he has also directed the Criminal Investigation Department (CID) to withdraw all current criminal defamation cases pending his decision and any outcome of a potential appeal.