A Win For The Freedom Of Expression In Kenya: Criminal Libel Is Unconstitutional

by | Apr 21, 2017

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About Alvin Attalo

Alvin Attalo is an LL.M candidate at the University of Kent, pursuing his Masters in International Human Rights and International Criminal Law. He is an Advocate of the High Court of Kenya with a Post Graduate Diploma from the Kenya School of Law and a Bachelor of Laws degree from Moi University School of Law. Alvin has a keen interest in Transnational law with a specific focus on international human rights, refugee law and international criminal law. Alvin is also an expert on matters EAC Treaty Law and Regional Integration, having handled a number of assignments pertaining the same in the East African Community.


Alvin Attalo “A Win For The Freedom Of Expression In Kenya: Criminal Libel Is Unconstitutional” (OxHRH Blog, 21 April 2017) <https://ohrh.law.ox.ac.uk/a-win-for-the-freedom-of-expression-in-kenya-criminal-libel-is-unconstitutional/> [Date of access].

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.

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  1. Ruth Kyeva

    A very detailed analysis above. A job well done.kudos

    • Alvin Attalo

      Many thanks @Ruth Kyeva

  2. Lydia Kemboi

    Good work. It’s indeed above and beyond

    • Alvin Attalo

      I’m humbled @Lydia Kemboi

  3. Jacktone

    Critically analysis of the area of law though still young in the Kenyan jurisprudence. Good work Mr. Alvin

    • Alvin Attalo

      Appreciated Jacktone

  4. Bryan

    This is very informative.

  5. Drusilla Kore

    job well done am now able to understand the freedom of speech more widely

    • Alvin Attalo

      Glad to be of service @Drusila Kore

  6. Joy

    It was a good read. well done

  7. Mbaluto

    Good job brother! Nice Article.

  8. Aflonia

    Job well done..kudos

  9. Isoe Joel

    Good piece Attalo…informative indeed

  10. Titus Omani

    Brilliant observation of the laws.Good job

  11. Hon Vujeri Nelson Mandela

    Thanks for all the information you have provided…very informative Kudos my humble senior, good job

  12. Ebby Sonia

    A very informative piece of work, good job.

  13. Ebby Sonia

    A very informative piece of work, good job

  14. Rose

    Very informative counsel. Good work

  15. Eric B.

    Nice piece. Its very educative and informative.

  16. Kalekye

    A well-written and educative piece of work.

    • Alvin Attalo

      Many thanks @Kalekye

  17. Liz Apphia

    Nice piece. Good Job

  18. Derrick Kimani

    Very incisive and informative.

  19. Elisha Mugabo

    Detailed piece of work.

  20. Amina

    A very well detailed and informative piece

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