In the recent case of Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR, the issue for determination was the constitutionality or otherwise of the offence of criminal defamation created under the provisions of section 194 of the Penal Code. As many may know, section 194 provides that:- “Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.”

Like any high-stakes social media law suit, it all started with a facebook post. It was alleged that “on diverse dates between the month of March 2014 and April 2014 at unknown time and place within the Republic of Kenya, by electronic means of facebook account Buyer beware-Kenya the first petitioner unlawfully published defamatory words concerning the complainants that the persons pictured and named therein were wanted for illegal possession and handling of property. Anyone with information regarding either of the three to get in touch with Face book page-100,000 Likes for justice to be done for Jacky and her Kids. In the case of Jackson Njeru, the second petitioner, it was alleged that, using the Facebook account Buyer Beware on 31st March 2016, he published the following words “unlawfully” “with intent to defame” one Cecil Miller:
“Jackline Okuta vs Cecil Miller (Baby Daddy) sad news coming my way after four years since being charged, numerous hearings, adjournments and seven judgement a member of this group Jacki Okuta alias Nyako Maber has been guilty of misuse of telecommunication device. She is currently at Langata Womens prison I am waiting for her lawyer and mother to call me and will brief the group….. For the evil has no future, the lamp of the wicked will be put out proverbs 24:20.”
As a result of the above facebook posts, the petitioners were arrested and charged under section 194 as stated above. This offence of criminal libel attracted a maximum punishment of two years imprisonment. The petitioners argued that section 194 violates the right to freedom of expression by curbing the printing, writing, painting, gesticulation, speaking or sounding of certain words on grounds that no proximate relation to and stray beyond the orbit of limitations permitted by the constitution under Article 33 (2) (d). The petitioners also contended that even though the freedom of expression is not absolute and can be limited for the protection of rights and reputations of others, criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose, hence criminal sanctions on speech ought to be reserved for the most serious cases particularized under Article 33 (2) (d) and that the offence of criminal libel does not strike a balance between freedom of expression and the limitation clause in Article 24 but instead arbitrarily and excessively invades the right in Article 24 which is not justifiable in a democratic society.
The High Court agreed with the petitioners on the unconstitutionality of criminal defamation provided under section 194 of the Penal Code. According to Justice Mativo, the freedom of expression is secured under Article 33 of the Constitution and for it to be limited, the limitation must fall within the scope and ambit of the provisions of Article 24 of the constitution. Considering the relevant international and regional instruments that Kenya is a party to and considering the offence of criminal defamation and the drastic punishment prescribed for it, the learned judge ruled that the offence cannot be reasonably justifiable in a democratic society, hence, it offends the right to freedom of expression. The crucial portion of the court’s judgment is reproduced below:

“By now, I am persuaded beyond doubt that having regard to all of the foregoing, I take the view that the harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society like ours.
Above all, I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of Article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by Article 33 of that Constitution.
Upon promulgation of the constitution of Kenya 2010, it was expected that certain provisions in our laws were to be amended to align them to the letter and spirit of the constitution, but almost seven years later we still have such provisions in our statutes!”
Despite the above decision from the court, it is important to clarify that criminal libel has not entirely been struck off from the statute books as has been suggested by most mainstream media reports. The effect of the court’s judgment was that: “A declaration be and is hereby issued that Section 194 of the Penal Code, Cap 63, Laws of Kenya, is unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33(2)(a)-(d) of the Constitution of Kenya 2010.”
This effectively means that criminal libel is still constitutional and valid in dealing with those offences not covered by the right to freedom of expression under Article 33 of the Constitution.