Freedom of expression on the internet: How Justice Makau reduced freedom of expression to a cipher

This view is supported by Shadrack B.O. Gutto[1] who while analysing the evolution of constitutional Law in Kenya makes a fundamental point that the law was deployed as a tool for repression against political opposition and resistance to neo-colonial fascism.[2] He is also of the view that judicial officers are partly to blame for the attrition of constitutional rights.[3] This view is evident in the decisions rendered during the Kenya African National Union (KANU) era such as Willy Mutunga v. R,[4]  Matiba v Moi,[5]  Kibaki v Moi,[6] and Gibson Kamau  Kuria v Attorney General.[7]Indeed, there was a time when the Kenyan Judiciary held that the Constitution should be interpreted in the ‘same way as any other legislative enactment’.[8] This was a time when the judiciary adopted ‘an unprincipled, eclectic, vague, pedantic, inconsistent and conservative approach to constitutional interpretation’[9] in a bid to defeat human rights violations claims.

Luckily, under the 2010 Constitution, Kenya has an appellate mechanism, and the anti-bill of rights decisions can be overturned by the Court of Appeal and the Supreme Court. If there is a decision from the high court that is desperately crying for a reversal, then it is the bake decision.[10] The bake decision fails to grasp the enduring chorus and crescendo of the 2010 constitution and in my view, the Bake decision is one of the unfortunate moments of our progressive high court.

 The decision reduces the constitutional provisions to mere platitudes or put differently freedom of expression that is guaranteed by the constitution has been rendered lilliputian by this decision.  As will be shown in this paper, the Learned Judge misinterpreted the limitation provision and ended up strangling the freedom of expression. Firstly, the judge shifts the burden of proving that there is a less restrictive measure from the state to the Petitioners and secondly the judge fails to grasp the broad and vague test in criminal law. Thirdly and finally, the concept of proportionality escapes the judge, and the decision stultifies the growth of our transformative and living constitution, especially as relates to the key right in question. In sum, this paper argues that the Court ignored the long-held constitutional principle that a Constitutional provision guaranteeing a right ‘is a permanent provision intended to cater for all times to come and should be given dynamic, progressive liberal and flexible interpretation’.[11]

This paper makes the central argument that due to the government’s tendency to act as censors, every limitation of the freedom of expression in a democracy should be treated with suspicion. The point is that in a society where laws are used as tools of oppression and suppression, the statutory provisions must be construed narrowly while constitutional provisions guaranteeing and protecting rights must be construed liberally. Indeed, the constitution, article 20(3) requires judges to adopt an interpretation that most favours the enforcement of a right or fundamental freedom. It is for this reason that the Court of Appeal has said that the theme under Article 20(3) is ‘maximization and not minimization; expansion, not constriction; when it comes to enjoyment and, concomitantly facilitation and interpretation’.[12] Whereas the constitution calls for a pro-rights interpretation, this paper will show that Justice Makau is yet to come to terms with the demands of the 2010 Constitution, and in Bake, the judge chose a narrow and pedantic interpretation of the Bill of rights.

This paper is divided into three parts. The first part considers the import of freedom of expression in a democracy while the second part considers the constitutional principles governing the limitation of rights under the 2010 constitution. In this part, I attempt to show how the Bake decision was wrongly decided. The third and final part is the conclusion.

  1. Freedom of expression in a democracy

Freedom of expression is considered ‘the foundation stone’[13] and a pillar for ‘every free and democratic society’.[14] This is central because its existence enhances the realization of other human rights.[15]  It is for this reason that Cardozo J (as he then was) recognized in Palco Case[16] that ‘freedom of thought and speech is the matrix, the indispensable condition, of nearly every other form of freedom’.

Broadly, freedom of expression in a democracy entails the deliberation on public affairs, human rights, and even political discourse. In a democracy, freedom of expression serves a higher purpose as it provides an avenue for the sharing of information. The information encompasses not only the one that is favourably received but even the one that the European Court on Human rights described as shocking, offending, and disturbing such as the demands for pluralism, tolerance, and accountability.[17] It is for this reason that freedom of expression is considered the sine qua non and a hallmark of every democracy.

Without freedom of expression, a state cannot be described as a democracy. For instance, without the freedom of expression, there will be no competition for political ideas and further, those in power will not be held accountable by their electorates.  The Supreme Court of Canada endorses the argument in Edmonton journal Vs Alberta that without freedom of expression, a state cannot be said to be a democracy in the following words:

‘it is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democratic society cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions’.[18]

Whereas freedom of expression is not absolute, it is subject to restrictions only if they are strictly construed and ‘established convincingly’.[19] Put differently, freedom of expression must be curtailed in limited circumstances and every restriction must be proportionate to the legitimate aim being pursued by the restriction.  It is for this reason that every restriction must be narrowly tailored to avoid rendering freedom of expression illusory or putting the right in jeopardy.[20]

Most fundamentally, when considering allegations of the infringement of freedom of expression, it is upon judges to start from the point that freedom of expression is requisite in a democracy. Secondly, due to its importance in a democracy, freedom of expression is a potential adversary to those who wield power, and they will consider all possibilities to ensure that freedom of expression is extinguished. This argument is demonstrable from Kenyan history. It is during the clam for multi-democracy in the 1990s that magazines and newspapers were banned by the Moi regime. Gitobu Imanyara, the lead editor of the Nairobi Law Monthly was arrested for reminding the president of the constitutional restrictions on his powers.[21] A judge should therefore not close his eyes to the history of the country. It is only through looking at the history of a country that the import of certain rights and fundamental freedoms can be understood.

A judge who ignores the history of a country is most likely to make terrible decisions. It is for this reason that history is required to play an important role in constitutional adjudication. The incorporation of the rights such as freedom of expression in the constitution was a reaction to the Moi era where criminal sanctions were used to muzzle any form of resistance to the dictatorial regime and to protect public officials from public censure.[22] Unfortunately, in my view, Justice Makau ignores the history of the country and decides to see no evil. Had the Learned Judge considered the history of the country, he would have concluded that whereas the old dictators clamped down magazines and newspapers, today’s wannabe authoritarians are clamping the internet. However, despite the change of means, the intention remains the same; extinguish freedom of expression.

  1. Limiting human rights under Article 24 of the Constitution

One of the leitmotifs of the 2010 constitution which has been described as a post-war (or transformative)[23] constitution is the promise of a human rights state.[24] The heart of every post-war constitution is the protection of human rights through the provision of a limitation clause in the bill of rights.[25] The inclusion of a limitation clause such as article 24 of the Constitution is therefore monumental and it should not be seen as ornamental or decorative. Further, the provision is not aspirational, but it is binding due to the significant role that it has in creating a human rights state.

In its transformative nature, the 2010 Constitution (through article 24) entrenches the culture of justification in Kenya and eschews the culture of order (or culture of authority). The culture of justification means that every action of the government must be justified or ‘every official act must find its locus in the law and underpinning in the Constitution’[26] Etienne Mureinik while writing in post-apartheid South Africa explains the difference between the culture of Justification and culture of authority as follows:

‘If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification – a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.[27]

The central point being made is that Article 24 is mandatory, and a judge must take it seriously and not mechanically. This can be seen in Samuel Manamela & Another v The Director-General of Justice where the Constitutional Court of South Africa, in considering the limitation clause, which is in parimateria to Article 24, cautioned against using the factors set out therein as a laundry list or in Kenya’s Supreme court words in Karen Njeri Kandie V Alassane Ba[28] that the test must not ‘be conducted mechanically’.[29]

The introductory part of this section sought to provide a background on the limitation clause in a transformative constitution such as the 2010 Constitution. The subsequent parts will demonstrate how Justice Makau failed to correctly apply the Limitation clause in the Bake decision.

  1. Failure to grasp the two-stage approach of the Limitation clause

While considering the limitation of rights under Article 24, Judges are required to engage in a two questions analysis. Firstly, whether a right in the bill of rights has been infringed by the law. This question brings to the fore another sub-question on who has the burden of proof. The second question in this analysis is if the infringement is justifiable. The subsequent sub-question again is who has the burden of proof in showing that the infringement is justified.  This two-stage analysis has been endorsed by various courts in Kenya. For instance, the high court in SDV Transami Kenya Limited,[30] while considering the constitutionality of regulations against the Bill of rights held that ‘the Court will, therefore, undertake a two-staged inquiry: firstly, whether there is a violation of a constitutional right and, secondly, whether the violation is justified under the criteria for limitation of Rights under Article 24 of the Constitution’.  This view carries support in South African Jurisprudence. The Mamabolo[31], the Constitutional Court held that:

‘The first issue was whether the law … limited the right to freedom of expression vouchsafed by the Constitution. The second is whether the procedure recognised and sanctioned by our law … fell foul of the fair trial rights guaranteed by the Constitution…. In respect of each of the first two issues, a finding that the law does indeed limit the fundamental rights in the respects contended for, will in turn require an enquiry whether such limitation is nevertheless constitutionally justified’.

Further, the petitioner is only required to raise a prima facie case showing that a right has been violated, and then the burden shifts to the state to demonstrate that the limitation is compliant with Article 24 of the Constitution. This principle of law has support even from the jurisprudence of the East Africa Court of Appeal that operated in our pre-2010 constitutional dispensation. In Karugaba vs. Attorney General [2003][32] it was held that:

‘The burden was on the Appellants to prove that the State or somebody else under the authority of any law has violated their rights and freedoms to publish guaranteed under the constitution. Once that has been established, the burden shifts to the State or the person whose acts are being complained of to justify the restrictions being imposed or the continued existence of the impugned legislation’.

Similarly, in Lyomoki and Others vs. Attorney General [2005] 2 EA 127 it was held that:

‘The principles of constitutional interpretation in Uganda are as follows: –

(i).   The onus is on the petitioners to show a prima facie case of violation of their constitutional rights. Thereafter the burden shifts to the respondent to justify that the limitations to the rights contained in the impugned statute are justified within the meaning of Article 43 of the Constitution….[33]

The 2010 Constitution is more creative. Under Article 24(3), the state must demonstrate that the requirements under Article 24 have been complied with. The provision provides thus: ‘the State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal, or other authority that the requirements of this Article have been satisfied’.

So, what went wrong? A reading of the Bake judgement will show that the Learned Judge did not engage in a two-stage analysis and ended up imposing an onerous burden on the petitioners.  The Learned Judge held in part as follows:

In order for the restriction to be legitimate, certain and compelling need to impose the limitation, must be clearly established.  It must therefore be demonstrated that the objective in question cannot reasonably be accomplished by any other measure other than the restriction of freedom of expression.  In the instant petition, the petitioner has failed to demonstrate any other measure that could possibly be taken that would realize the objective of section 22 of the Act’.[34]

In effect, the Learned Judge ignores Article 24(3) of the Constitution by shifting the burden of proof to ensure that there are other less restrictive means on the petitioner. By doing so, Justice Makau deals a major blow to human rights litigation in Kenya. The Judge imposes an unreasonable burden on the petitioners which is not in tandem with article 24. A three-judge bench of the High court explained the import of placing the burden of proof on the state as follows:

‘By placing the burden of proof on the Government we simply recognize the Government’s unmatched power to shape, manipulate and determine the content of our lives, and require it to justify the use of its power in areas in which the Constitution tells us we are notionally free’. (Extract from Constitutional Law of South Africa Revision Service 5 of 1999).[35]

And further in paragraph 75, it notes that:

‘It was incumbent upon the State to demonstrate that in the circumstances, the ban, though the most extreme of measures was reasonable and justifiable.  The respondents ought to have satisfied the court that less restrictive means would not have been efficacious to deal with the perceived challenges posed by MRC’.

Comparatively, the South African Constitutional Court has adopted a similar approach. In Moise,[36] the Court held that ‘it is also no longer doubted that, once a limitation has been found to exist, the burden of justification under s. 36(1) rests on the party asserting that the limitation is saved by the application of the provisions of the section’. This position was also expressed in Makwanyane where the Constitutional Court held that ‘[i]t is for the legislature, or the party relying on the legislation, to establish this justification, and not for the party challenging it to show that it was not justified’.[37]  This position has also been expressed by the lower courts in South Africa.  For instance, in  Matinkinca[38] the court expressed itself thus ‘once it is established that a statute does interfere with or limit a fundamental right … the onus moves to the person attempting to justify the interference’.[39]

It is therefore problematic to understand how and on what basis the Learned Judge decided to shift the burden of proof on the Petitioners. The decision effectively renders the bill of rights a toothless bulldog and is a demonstration of the length that some judges, just like the French Vichy era judges, can go in giving legitimacy to repressive laws.[40] Having the bill of rights in the Constitution is one thing and ensuring that it is meaningful is another thing altogether. If the enforcement of the rights through the court system is made cumbersome by requiring the petitioner to show the existence of a least restrictive means of limiting rights, the bill of rights will be left hollow, and we will soon return to the state that we were in during the reign of the retired constitutions.

I will end this part by reiterating a caution by law professor and former British Diplomat Phillip Allot ‘the idea of human rights should intimidate governments, or it is worth nothing. If the idea of human rights reassures governments, it is worse than nothing’.[41] Unfortunately, the interpretation by the Learned Judge assures the executive that it has a powerful ally in the judiciary.

  • The impugned provisions did not satisfy the checklist under Article 24
  • The provisions are overly vague and ambiguous

Article 24 of the Constitution requires that a limitation of a right must be provided for by law. This test is not satisfied by merely having legislation in place. The test is met when the legislation or a provision in the legislation limiting a right is clear and specific. This test is linked with the principle of legality under Article 50 of the Constitution which means that criminal offences must be defined with specificity[42] and where legislation is not specific or clear, then it is not law to limit a right under Article 24.

In sum, the principle of anti-vagueness in criminal law is based on two principles: fair notice and separation of powers. Firstly, when the reach of the offence is uncertain and it is left to the Judge and prosecutors to determine its contours, it violates the fair notice principle. This is because the citizens are left in the dark ‘about what the law demands and allow prosecutors and courts to make it up’.[43] Put differently, ordinary people must know beforehand what conduct is prohibited and the offence must be defined in such a way to ensure that it ‘does not encourage arbitrary and discriminatory enforcement’.[44]

Secondly, when the police, prosecutors, and Judges are left to determine the contours of the offence, it violates the separation of powers principle. Ideally, it is parliament that has the mandate of creating offence and therefore it should be the only body to set the contours of the offence[45] but vague laws hand over the responsibility of defining offences to police, prosecutors, and judges.

The consequence of a vague provision is that it is not a law at all and the same cannot be used to limit a right. The European court on human rights while considering a limitation of a right held  in Sunday Times vs United Kingdom, that

‘(A) norm cannot be regarded as “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able- if need be with appropriate advice- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given situation may entail’.[46]

None could have put it any better than Justice Gorsuch in United States versus Davis et al (2019) when while striking down provisions of the firearms act, the Learned Judge held that:

‘In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legisla­ture’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again. Our doctrine prohibiting the enforcement of vague laws rests on the twin constitutional pillars of due process and separation of powers’.

Recently, while striking down the vagrancy law, the Ugandan Constitutional court was also forthright on this principle. Justice Fredrick Egonda Ntende while writing for the Court held in paragraph 39 of the judgement that:

‘it is a constitutional imperative that a criminal offence is defined and what this means is that it must be specifically defined that it should clear to all what its elements are. The said elements or ingredients should not be ambiguous or vague or too broad as to defy specific definition’.[47]

This position has also been endorsed by the Kenyan courts. For instance, Justice Mumbi Ngugi while considering the constitutionality of section 29 of the Kenya Information and Communication Act (KICA) provided for the offence of the misuse of telecommunication devices noted in Geoffrey Andare[48] noted that:

‘I have considered the words used in the section. I note that there is no definition in the Act of the words used. Thus, the question arises: what amounts to a message that is ‘grossly offensive’, ‘indecent’ obscene’ or ‘menacing character’” Similarly, who determines which message causes ‘annoyance’, ‘inconvenience’, ‘needless ‘anxiety’” Since no definition is offered in the Act, the meaning of these words is left to the subjective interpretation of the Court, which means that the words are so wide and vague that their meaning will depend on the subjective interpretation of each judicial officer seized of a matter.. It is my view, therefore, that the provisions of section 29 are so vague, broad and uncertain that individuals do not know the parameters within which their communication falls, and the provisions therefore offend against the rule requiring certainty in legislation that creates criminal offences’.[49]

In the case at hand, the Petitioners were challenging various provisions of the Act inter alia Section 22, 23, 24, 27,28, and 37 of the Computer Misuse and Cybercrimes Act. The provisions created the offence of false publication, publication of false information, child pornography, cyber harassment, cybersquatting, and Wrongful distribution of obscene or intimate images. The Petitioners argued that the provisions were vague and ambiguous. For sections 22 and 23, the petitioners argued that the use of words such as information that is false, misleading or fictitious and that is calculated to create chaos and panic is vague because it is dependent on the subjective interpretation of the enforcers. The Petitioners further argued that the issue of false information and false publication was already determined in Geoffrey Andare (Supra) where Justice Mumbi (as she then was) declared section 29 of KICA as unconstitutional for being overly broad. Justice Mumbi found that ‘the words are so wide and vague that their meaning will depend on the subjective interpretation of each judicial officer seized of a matter’.

In this case, however, Justice Makau found that the language was different and that the word false is a common English name. However, a comparison between section 29 of KICA and sections 22 and 23 shows that the interpretation of these offences is left to the Police, prosecutors, and Judges.  In other words, it is for the state to determine the truthfulness of any information shared by citizens. Isn’t this the subjective interpretation that was discussed by Justice Mumbi?

Further, let us consider section 27 of the Act that creates the offence of cyber harassment. The section provides that:

‘A person who, individually or with other persons, wilfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct—(a)is likely to cause those persons apprehension or fear of violence to them or damage or loss on that person’s property; (b)detrimentally affects that person’.

A statute that uses the word ‘likely’ and ‘detrimentally affects’ cannot pass constitutional muster as it leaves so much discretion to the enforcement agencies. A simple interpretation of the provision is that what amounts to cyber harassment depends on the subjective interpretation of the police and the state at large. This provision is vague and unjust and leaves large discretion which poses a potential threat to freedom of expression on the internet. In Re Ontario Film and Video Appreciation Society v. Ontario Board of Censors, while striking down a law, the Court noted that the evils of vagueness extend to situations in which unfettered discretion is granted to public authorities responsible for enforcing the law:

‘It is accepted that law cannot be vague, undefined, and totally discretionary; it must be ascertainable and understandable. Any limits placed on the freedom of expression cannot be left to the whim of an official; such limits must be articulated with some precision or they cannot be considered to be law’.[50]

Recently in Uganda, the constitutional court in Andrew  Karamagi and Robert Shaka versus Attorney General,[51]  while considering the constitutionality of section 25 of the Computer Misuse Act which made it an offence ‘for any person to wilfully and repeatedly use electronic communication to disturb or attempt to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication’, the court considered the provisions as vague, overly broad and ambiguous in the sense that:

‘What constitutes an offence is unpredictable and gives the law enforcer the discretion to pick and choose what qualifies as offensive. It gives the law enforcement unfettered discretion to punish unpopular or critical protected expression…Provisions of the law must be lawful in a sense that they are not arbitrary, they should make adequate safeguards against arbitrary decisions and provide effective controls against abuse by those in authority’.

The point being made under this section is that parliament while creating an offence must ensure that there is reasonable precision in the definition of the offence and must avoid a ‘fluid language which sweeps citizens under the penumbra of penal legislation without warning’[52] or permit police, prosecutors, and judges to pursue their predilections. A law must have safeguards to ensure that criminal offences are not abused by the wielders of state power. Although the Ugandan Constitutional Court clearly understood its assignment, the learned Justice Makau did not.

  1. The restrictions are not proportional and have a chilling effect

A restrictive measure or provision is said to have a chilling effect when the right holders are intimidated into not exercising their constitutionally protected right or freedom due to the threat of criminal sanctions (hefty fines and imprisonment).[53] In the case at hand and while considering whether the limitations on the freedom of expression could pass the test under Article 24, the judge was constitutionally obligated to answer the question of whether the limitations were proportional in that they would not result in a chilling effect. This section will however demonstrate that the Learned Judge failed to appreciate this constitutional test.

While considering the proportionality of the limitation of the freedom of expression in section 22 of the Act dealing with false publication. Justice Makau considers the characteristics of the internet as the determinant. He notes that ‘the speed with which information is shared on the internet, the court must not only consider the impact of the limitation on private citizens but must also consider the limitation from the perspective of interoperability of the internet’.[54]

In section 23, the petitioners argued that the Legislature was reintroducing criminal defamation through the back door, the same having been declared unconstitutional in Okuta. However, Justice Makau says that the criminalization of cyber libel is justified simply because it is on the internet. The Learned Judge holds that there is a distinction between libel through the use of ICT and libel published using traditional means because of the speed ‘with which defamatory statements posted in cyberspace, facilitated by one-cluck options offered by the networking site and the quickness in the dissemination of such reactions to other internet users all over the world’.[55]

In summary, Justice Makau finds that freedom of expression on the internet must be severely limited because of the internet. What the Judge’s reasoning demonstrates is his willingness to limit the freedom of expression on the internet without considering the extent of the limitations. The Learned Judge ignores the accepted position that freedom of expression applies equally to communication communicated through traditional means as well as communication on the internet.[56]

In addition, this artificial distinction created by the Learned Judge is baseless and completely unjustifiable. Indeed, if there was a need for any distinction, it was for the judge to appreciate that as the world evolves, governments seem to curtail freedom of expression on the internet more than the traditional media. The experiences in Tanzania and Uganda where access to the internet is dependent on the side of the bed that a minister wakes up on and if he is in a foul mood due to criticism, the access is denied should have offered a practical example to the Learned Judge.

It is the position of this paper that the Learned Judge misapprehends the proportionality test. In sum, the proportionality test requires that the means taken by a state in pursuit of a legitimate aim must not result in a chilling effect on a right. The means must not be more than necessary.

The Learned Judge when considering whether criminal defamation was proportionate, he argued that it was proportionate because article 33 protects the right to reputation and that here defamation was happening on the internet and would reach more people than the traditional means of communication. It is the contention of the writer that the Learned Judge completely answered the wrong questions. The proper questions were whether the right to reputation would be protected by civil damages and secondly what the impact of hefty (disproportionate) fines and imprisonment on freedom of expression is. Would the citizens choose to remain silent to avoid these criminal sanctions? Will the threat of criminal sanctions censor the citizens? Had the judge considered these questions, he would have arrived at one conclusion that the use of criminal sanctions was not proportionate and could not pass constitutional muster.

The position that the imposition of criminal sanctions is not proportional has received global acceptance. For instance, the jurisprudence of the European Court demonstrates this. The court in Jersild[57] and Isorni[58] held that imposition of a criminal conviction to restrict freedom of expression is enough to violate the proportionality principle. The Human Rights Committee in its interpretation of Article 19 of the ICCPR has pointed out that the imposition of imprisonment should not be considered an option when limiting freedom of expression.[59]

The constitutionality of criminal defamation has already received enough judicial ink in Africa as well. The African Court on Human and Peoples Rights,[60] the Zimbabwe High Court,[61] and the Kenyan High court[62] (differently constituted) declared criminal defamation as unconstitutional on the basis that criminal sanctions are inappropriate as civil remedies are sufficient.

Recently, the Kenyan High Court (Justice Okwany) in Cyprian Andama v Director of Public Prosecution[63]considered the constitutionality of section 84D of KICA which created the offence of publishing obscene information in electronic form. Unlike Justice Makau, Justice Okwany correctly appreciates the import of article 24. Justice Okwany finds that although the purpose of the section was to rein in the publishing of obscene information;

‘However, it is clear that its resultant effect has been to instill fear and submission among the people considering the hefty fines and long prison terms that the persons charged under the impugned section may face in the event of a conviction. My take is that this cannot be the object of any law in the face of the current constitutional dispensation when people enjoy a robust Bill of Rights’.[64]

Most importantly, Justice Okwany considers the proportionality of the criminal sanctions and holds that criminal sanctions create a chilling effect by creating fear. In paragraph 57 the Learned Judge finds thus;

 ‘To my mind, any alleged discomfort or displeasure with the petitioner’s publication could have been addressed by less restrictive means, such as a civil suit for defamation, other than blanket curtailment of a fundamental right. My finding therefore is that the impugned section is unconstitutional considering that even though its purpose was to control/limit use of obscenities in communication, and its effect has been to infringe on the freedom of expression guaranteed by the Constitution by creating the fear of the consequences of a charge under the said section’.

The point being advanced here is that criminal sanctions are not proportionate and are akin to using a sledgehammer to crack a nut and can be used to silence any dissenting voice. Such an action amounts to a constitutional vice and cannot be tolerated in a democracy. Most importantly, criminal sanctions, in practice, are normally deployed to stifle the freedom of expression and judges should therefore interpret such provisions narrowly.

  1. Conclusion

The bake decision remains one of the examples of ‘jurisprudence of executive supremacy’ in post-2010 Kenyan jurisprudence. If left unturned, Justice Makau has given the executive the leeway to ‘walk into the courthouse with an almost irrefutable presumption of lawfulness as to its conduct’[65] and it will no longer matter what the constitution provides but rather what the state wants. In effect, we are staring at a situation where human rights and constitutional litigation might slowly be rendered moribund. As the paper has shown, the shift of the burden of proof from the state to the Petitioner lacks constitutional underpinning and indeed ignores the express provisions of Article 24(3) of the constitution. Further and most importantly, the Learned Judge fails to correctly apply the limitation criteria under article 24 of the constitution and ends up jeopardizing the freedom of expression.

* The author is an Advocate of the High Court of Kenya and currently undertaking an LLM in Human Rights and democratization in Africa at the Centre for Human Rights, University of Pretoria

[1] Shadrack B.O. Gutto, ‘Constitutional Law and Politics in Kenya Since Independence: A Study in Class and Power in A Neo-Colonial State in Africa’ (1987) Vol. 5 Z. L. Rev.

[2] Ibid at Pg. 144.

[3] Ibid at Pg. 149.

[4]W. Mutunga v. R (Misc. Crim. App. No.101,1982) EKLR where the Applicant was denied bail and the judge noted that ‘Courts do not operate in a vacuum and cannot be oblivious of the fact that some subservice elements have unfortunately crept into the University and the state cannot simply ignore them’.

[5] Matiba v Moi Election petition 27 of 1993. In this case, the petitioner was challenging the presidential results against an incumbent president. However, during the campaigns he had suffered a stroke and could not sign the pleadings, he gave his wife a power of attorney to sign on his behalf. However, the court insisted that a petition must be signed by the Petitioner himself.

[6]Kibaki v Moi Election petition 1 of 1998. Kibaki was challenging the presidential election results against the incumbent president. The election law allowed for service through the gazette notice. However, the Court insisted that a petitioner must personally serve the Respondent. The Court ignored the concerns of the Petitioner that it is very difficult to access the president and that the law actually allows for an alternative way of service.

[7] Gibson Kamau Kuria v Attorney General High Court Miscellaneous application 279 of 1985(unreported). This is one of the most shocking decisions of the High court during the Moi era. In this case, the Petitioner won the Robert F Kennedy Centre for Justice and Human Rights award in the United States for defending violations of human rights in Kenya. The government moved in quickly and confiscated the Petitioner’s Passport. The Petitioner approached the High Court for help, the High court dismissed the case on the ground that the chief justice ‘had not made rules’ to guide the litigation process; for a similar finding See Maina Mbacha v. Attorney General 2(1989) 17 Nairobi Law Monthly 38.

[8] Republic v El Man (1969) EA 359.

[9] Thiankolu M ‘Landmarks for El Mann to the Saitoti Ruling: Searching a philosophy of constitutional interpretation in Kenya’ [2007] Kenya Law Review Vol 1 188-213, 189.

[10] Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] eKLR.

[11] Mwondha JSC in David Tusingwire vs Attorney General (2017) UGSC 11; See also South Dokata v. South Carolina 192, USA 268. 1940.

[12] Attorney General v Kituo Cha Sheria & 7 others [2017] eKLR.

[13] HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para 2; See also Bowman v UK App no 24839/94 (ECtHR, 19 February 1998) para 42.

[14] Onder Bakircioglu, ‘Freedom of Expression and Hate Speech’ (2008) 16 Tulsa J Comp & Intl L 1, 2.

[15] Makali David, Media Law, and Practice: The Kenyan Jurisprudence (1stedn, Phoenix2003).

[16] Palco v Connecticut 302 US 326-7.

[17] Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976) para 49.

[18] Edmonton journal Vs Alberta {1989} 45 CRR 1.

[19]  Zana v Turkey App no 18954/91 (ECtHR, 25 November 1997).

[20]  UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (28 February 2008) UN Doc A/HRC/7/14 (‘UNHRC February 2008 Report’) para 49.

[21] See Bill Kovach ‘An arrest in kenya’ The Washington post 18 July 1990, available at

[22] See Pheroze Nowrojee, ‘The Legal Profession 1963-2013: All This Can Happen Again – Soon’ in Yash Pal Ghai and Jill Cottrell Ghai (eds), The Legal Professions and the New Constitutional Order in Kenya (Strathmore University Press, 2014) at pg 35.

[23]  See Speaker of the Senate & Another vs. Hon. Attorney-General & Another & 3 Others Advisory Opinion Reference No. 2 of 2013 [2013] eKLR where the Supreme Court describes the Constitution as a ‘transformative charter’; See Luka Kitumbi & Eight Others V. Commissioner of Mines and Geology & Another, Mombasa HCCC No. 190 of 2010], Ojwang J (as he then was) held that:

I take judicial notice that the Constitution of Kenya, 2010 is a unique governance charter, quite a departure from the two [1963 and 1969] earlier Constitutions of the post-Independence period. Whereas the earlier Constitutions were essentially programme documents for regulating governance arrangements, in a manner encapsulating the dominant political theme of centralized (Presidential) authority, the new Constitution not only departs from that scheme, but also lays a foundation for values and principles that must imbue public decision-making, and especially the adjudication of disputes by the Judiciary.’

[24] See Makau Mutua ‘Hope and Despair for a New South Africa: The Limits of Rights Discourse’ (1997) 10 Harvard Human Rights Journal 63; See also Benjamin Gregg, The Human Rights State: Justice Within and Beyond Sovereign Nations (Philadelphia: University of Pennsylvania Press, 2016)13; See also René Wolfsteller & Benjamin Gregg, ‘A realistic utopia? Critical analyses of The Human Rights State in theory and deployment: Guest editors’ introduction’ (2017) 21:3 The International Journal of Human Rights219-229.

[25] See Attorney-General & another v. Randu Nzai Ruwa & 2 others Civil Appeal No. 275 of 2012: [2016] eKLR.

[26]Justice Majanja in Samura Engineering Ltd & Others v Kenya Revenue Authority Nairobi petition No. 54 of 2011; See alsoHon. Justice Kalpana Rawal and Others V Judicial Service Commission and Others, Applications No. 11 and 12 of 2016.

[27] Etienne Mureinik in A Bridge to Where? Introducing the Interim Bill of Rights (1994) 10 SAJHR 32

[28]The Supreme Court of Kenya in Karen Njeri Kandie V Alassane Ba (2015) EKLR, Petition No. 2 Of 2015.

[29]Ibid at para 77.

[30] SDV Transami Kenya Limited and 19 Others v Attorney General & 2 Others & another [2016] Eklr.

[31] S v Mamabolo 2001 (3) SA 409 (CC), 2001 (5) BCLR 449 (CC) at para 1.

[32] Karugaba vs. Attorney General [2003] 2 EA 489.

[33] For Post-2010 jurisprudence, see Kituo Cha Sheria & 8 others v Attorney General [2013] eKLR at Para 81 where the Court held that ‘Here, I will add that the burden of justifying the limitation lies on the State to prove that the restriction is in harmony with the limitation clause set out under the Article’.

[34] Paragraph 42 of the Judgement. See also para 73 of the Bake decision.

[35] Randu Nzai Ruwa & 2 Others V Internal Security Minister & Another [2012] eKLR.

[36] Moise v Transitional Local Council of Greater Germiston 2001 (4) SA 491 (CC), 2001 (8) BCLR 765 (CC) at para 19.

[37]See Makwanyane (supra) at para 102.

[38] Matinkinca v Council of State, Ciskei 1994 (4) SA 472 (Ck), 1994 (1) BCLR 17, 34 (Ck).

[39] See Nortje v Attorney-General, Cape 1995 (2) SA 460 (C), 1995 (2) BCLR 236, 248 (C) where the court held that ‘[P]arty who seeks a limitation of [the] right bears the onus of establishing the justification for that limitation’; See also Zantsi v Chairman, Council of State, Ciskei 1995 (2) SA 534 (Ck), 560, 1995 (10) BCLR 1424 (Ck) where the court held that ‘Thereafter the onus is on the party relying on a limitation to prove that it is a lawful limitation’.

[40] See R. Weisberg, Vichy Law and the Holocaust in France (New York: New York University Press,1996).

[41] Philip Allott, Eunomia: New Order for a New World, Oxford University Press, 1990, p. 287.

[42] Reluscher &Deputy Minister, Revenue, Canada, Customs & Excise, 17 D. L. R (4th) 503.

[43] Attorney General versus Dimaya (2013).

[44] O’Connor J., writing for the United States Supreme Court in Kolender v Lawson 461 U.S. 352 at page 357.

[45] United States v. Hudson, 7 Cranch 32, 34 (1812).

[46] Sunday Times vs United Kingdom Application No 65 38/74 para 49.

[47] Constitutional Court of Uganda in Francis Tumwesige Ateenyi versus Attorney General, Constitutional Petition No 36 of 2018.

[48] Geoffrey Andare v Attorney General & 2 others [2016] Eklr.

[49] ibid at paras 77-78.

[50] Re Ontario Film and Video Appreciation Society v. Ontario Board of Censors (1983) 31 O.R. (2d) 583 (Ont. H.C.), p. 592.

[51] Andrew Karamagi and Robert Shaka versus Attorney General, Constitutional Petition No 5 of 2016

[52]  Hattie Mae Ricks v District of Columbia 134 U.S.App. D.C. 201.

[53] Secretary of State of Maryland v J H Munson Co 467 US 947 (1984).

[54] See para 40 of Bake decision.

[55] Para 56 of Bake decision.

[56] IACHR ‘Freedom of Expression and the Internet’ (31 December 2013) OEA/Ser.L/V/II [148].

[57]  Jersild v Denmark App no 15890/89 (ECtHR, 23 September 1994) para 35.

[58] Lehideux and Isorni App no 24662/94 (ECtHR, 23 September 1998) para 57.

[59]  General comment No 34 supra para 47.

[60] Lone Issa Konate vs The Republic of Burkina Faso.                                                                                                                             

[61] Navajo Madanhire and Another vs. A.G, Const. Application No CCZ 78/12.

[62] Jacqueline Okuta & another v Attorney General & 2 others [2017] Eklr.

[63] Cyprian Andama v Director of Public Prosecution & another; Article 19 East Africa (Interested Party) [2019] eKLR

[64] Ibid para 53

[65] H kwasi Prempeh,’A new jurisprudence in Africa’ (1999) 10(3) journal of democracy

Guest author The Platform Magazine