High Court Judge Mumbi Ngugi has declared a contentious section in the Kenya Information and Communications Act (KICA) which creates the offense of “misuse of a licensed telecommunication device” as unconstitutional.
In her ruling delivered on Tuesday April 19, Judge Ngugi stated that the provisions of section 29 of the Kenya Information and Communication Act are “unconstitutional for violating Article 33 of the Constitution, and therefore null and void.”
The ruling is the culmination of a case which began exactly a year ago on April 17, 2015 when the petitioner, Geoffrey Andare, moved to court to challenge the constitutionality of section 29 of the Kenya Information and Communication Act, Cap 411A.
The basis of Andare’s challenge was that this particular section criminalises publication of certain information in vague and overbroad terms, has a chilling effect on the guarantee to freedom of expression.
Section 29 of the Act states that “a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding Kshs 50,000, or to imprisonment for a term not exceeding three months, or to both.”
Andare had on April 7, 2015 been charged under section 29 of the Act with the offence of “improper use of licensed telecommunication system” contrary to section 29(b) of the Act.
“The particulars of the offence were that he (Andare), through his Facebook account, posted grossly offensive electronic mail with regard to the complainant, Titus Kuria, in which he stated that “you don’t have to sleep with the young vulnerable girls to award them opportunities to go to school, that is so wrong! Shame on you” knowing it to be false and with the intention of causing annoyance to the complainant,” states the Ruling.
Afterwards, Andare moved to court on April 21, 2015 with an urgent application seeking to stop his prosecution in the criminal case.
Andare argued that that section 29 of the Act is vague and over-broad especially with regard to the meaning of ‘grossly offensive’, ‘indecent’, ‘obscene ‘menacing’, ‘causing annoyance’ ‘inconvenience’ or ‘needless anxiety’. He further argued that the section offends the principle of legality which requires that a law, especially one that limits a fundamental right and freedom, must be clear enough to be understood and must be precise enough to cover only the activities connected to the law’s purpose.
“The Director of Public Prosecutions has the constitutional mandate to determine whether or not to proceed with the prosecution of the petitioner with regard to the facts alleged against him should they disclose an offence under any other provision of law, and this Court will therefore not issue prohibitory orders directed against the DPP,” stated the ruling, adding: “However, in light of the findings of this Court, the Director of Public Prosecutions cannot continue to prosecute the petitioner under the provisions of section 29 of the Kenya Information and Communications Act.”
The Director of Public Prosecutions (DPP), and the Attorney General had argued that the law was intended to protect the reputation of others.
However, the judge found that it does not meet the criteria set in Article 24 of the constitution which provides instances when rights can be limited.