The Kenyan High court has, in a recent decision, struck a blow for freedom of expression. The case, Jacqueline Okuta& another v Attorney General & 2 others , sought to challenge the constitutionality of the offence of criminal defamation created under the provisions of section 194 of the Penal Code. The petitioners in this case instituted a suit following their arraignment in court on charges of having allegedly published defamatory statements against the complainants on Facebook. The alleged publication stated that the complainants were wanted for illegal possession and handling of property.
The case turned on the question of whether criminal libel was a reasonable or justifiable restriction on freedom of expression. The petitioners contended that criminal libel was a “disproportionate instrument for protecting the reputations, rights and freedoms of others”, and inconsistent with Kenya’s human rights obligations under international law. Article 2 of the Constitution expressly incorporates treaties ratified by Kenya as well as the general rules of international law into Kenyan domestic law. Similar arguments were put forward by Article 19, an NGO which appeared as an interested party in the suit.
Protected under Article 19 of the ICCPR, the freedom of expression can only be subject to limitation(s) where that limitation meets the 3 part test laid down in Article 19(3) of the ICCPR, as interpreted in General Comment 34. This test requires that the limitation must be prescribed by law, pursue a legitimate purpose, and be necessary in a democratic society.
In the present case, the court concluded that the case revolved around whether the limitation imposed by the law had passed the tests of necessity and proportionality.
Necessary in a democratic society
Applying the test in Handyside v United Kingdom, which requires a probing into the existence of a pressing social need,the court questioned whether it was necessary to criminalize defamatory statements so as to prevent individuals from defaming each other. It noted the important role played by freedom of expression in disseminating information and public scrutiny, which often leads to unearthing of corrupt or fraudulent activities. Criminalising defamation would have a chilling effect on this valuable speech.
Referring to Article 24 of the Kenyan Constitution, which stipulates the criteria for limitation of rights and fundamental freedoms, the Court stated that this provision’s purpose was to protect the public interest in general, as opposed to individual interests, yet a scrutiny of criminal defamation sought to protect individual interests. The interference with free expression which criminalising defamation would represent therefore failed to meet any ‘pressing social need’. This meant that Section 194 ran afoul of constitutional requirements. While such an interpretation may have, on the face of things, been plausible, one is left to ponder over the question whether this means that measures restricting rights can never be justified by reference to the protection of an individual interest. If this were the case, there would be a risk that minority rights would be jeopardized.
The question of proportionality
The second test used to scrutinise the constitutionality of criminal defamation entailed examining whether there existed an alternative remedy that satisfactorily and appropriately dealt with the mischief of defamation. Answering in the affirmative, the court stated that the right of action under the tort of defamation offered recourse to a complainant and was a less restrictive alternative.
The court further undertook an assessment of the consequences that would flow from criminal defamation and found that offenders would carry the opprobrium of criminalisation evenwhere the alleged defamation was not serious. The offence also had a chilling effect on the freedom of speech and information.
What also sticks out like a sore thumb in the court’s decision is the erroneous reference to Article 24 as a provision that allows for permissible derogations. This is because Article 24 only provides for limitation of rights and specifically prohibits limitation of a right that may ‘derogate from its core or essential content.’ The court failed to distinguish between limitation of rights under Article 24,and derogation from rights, which is provided for under Article 58(6) of the Kenyan Constitution. An important difference exists between limitation and derogation.
The Court also expressed displeasure that certain provisions within the Kenyan law hadn’t yet been amended so as to conform with the letter and spirit of the Constitution, despite it having been 7 years since the inception of the new constitutional order.
This progressive decision brings Kenya in line with regional human rights courts such as the African Court on Human and Peoples Rights, which in Konate vs Burkina Faso, discouraged the use of criminal defamation laws, stating that they should only be reserved for instances of hate speech and incitement.