If defamation was not a criminal offence, Albert Ojwang’s unlawful death while in police custody would probably not have happened. The complaint against his posts on social media was lodged by Deputy Inspector General of Police, Eliud Lagat, for what he claimed was ‘his name being tarnished’.
The High Court has blown hot and cold on constitutionality of criminal defamation with three key decisions, a situation that calls for the Court of Appeal and possibly the Supreme Court to settle the law on this issue.
In 2016, Justice Mumbi Ngugi in the case of Geoffrey Andare v Attorney General & two others declared Section 29 of the Kenya Information and Communication Act, unconstitutional. This section made it an offence to use a telecommunication system to send messages that were ‘grossly offensive or of an indecent, obscene or menacing character’ as well as those that cause ‘annoyance, inconvenience or needless anxiety to another person’. The court found this provision unconstitutional for limiting freedom of expression through vague, imprecise, and undefined terms.
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In 2017, Justice John Mativo in the case of Jacqueline Okuta & another v Attorney General & two others also found Section 194 of the Penal Code that made it an offence to publish ‘any defamatory matter concerning another person, with intent to defame that other person’ to be unconstitutional. In arriving at this decision, the Court observed that the harmful consequences of criminalising defamation such as the chilling possibilities of arrest, detention and imprisonment were excessive and in violation of the freedom of expression.
To protect public interest, the Court pointed out that criminal sanctions on speech ought to be reserved for the most serious cases as provided in Article 33(2)(a)-(d), namely, propaganda for war, incitement to violence, hate speech, or advocacy of hatred.
These progressive pronouncements were reversed in 2018 when Parliament enacted the Computer Misuse and Cybercrimes Act, a legislation that effectively reintroduced criminal defamation through the backdoor, contrary to the two findings by the High Court. Section 23 of this legislation provides for the offence of publishing ‘false information’ that is ‘calculated or results in panic, chaos, or violence among citizens, or which is likely to discredit the reputation of any person’.
The penalty for this offence is a fine of up to Sh5 million or imprisonment for up to ten years, or both. In 2020, the High Court again had the opportunity to pronounce itself on the constitutionality of this provision in the case of Bloggers Association of Kenya (BAKE) v Attorney General & three others. Strangely, Justice James Makau went against the grain of previous High Court findings by holding that criminalisation of defamation under this Act was constitutional.
The judge created what is arguably an inaccurate distinction between section 194 of the Penal Code that had been declared unconstitutional and Section 23 of the Computer Misuse and Cybercrimes Act. This dichotomy is a false one as individual interests are covered under Section 23. An appeal against this decision is pending at the Court of Appeal.
The main argument against criminal defamation laws is that prosecution for defamation continues to be misused by governments to silence critics. Time is therefore ripe for permanently ridding our law books of criminal defamation. Reasonable and proportionate civil remedies are effective in protecting reputations.
Writer is an advocate. [email protected]
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By Edward Kahuthia