Social Media, Freedom of Expression and Constitutionality of Telecommunications Law: Revisiting High Court Judgment in Geoffrey Andare v Attorney General & 2 others
Earlier this year, the High Court delivered an important judgment in the case of Geoffrey Andare v Attorney General & 2 others  eKLR which dealt with a challenge to the constitutionality of section 29 of the Kenya Information and Communication Act, Cap 411A (hereafter ‘the Act’). The basis of the challenge is that it criminalises publication of certain information in vague and overbroad terms, has a chilling effect on the guarantee to freedom of expression, and creates an offence without creating the mens rea element on the part of the accused person.
The section in question provides as follows:
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 fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.
On 7th April 2015, Andare was arraigned in court in Milimani Criminal Case No. 610 of 2015, Republic vs Geoffrey Andare and 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, through his Facebook account, posted grossly offensive electronic mail with regard to the complainant, a Mr. 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.
Andare’s case was 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 contended 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.
Andare further contended that the provision is void for vagueness by imposing an offence without defining the target and the conduct sought to be prohibited; that sub-section (a) does not peg the commission of the offence on the intention or ‘mens rea’ of the sender of the material allegedly causing harm, but merely whether the message is subsequently considered ‘grossly offensive’, ‘indecent’, ‘obscene’ or ‘menacing’ by an unnamed, indefinite and unspecified person.
Andare further argued that beside vagueness, the section has a chilling effect on his and the public’s freedom of expression and the right to seek or receive information or ideas. In his view, freedom of expression extends to the right to send messages of the kind prohibited by the section, and while the section limits freedom of speech and expression, the limitation falls outside the four grounds for limitation under Article 33 (2) of the Constitution.
As a result, the court determined that the main issue for consideration is whether section 29 of the Kenya Information and Communication Act is unconstitutional. In addition, the court would consider the question whether there has been a violation of the petitioner’s rights in his prosecution under the provisions of the Act, and whether prohibitory orders should issue against his prosecution.
According to the court, 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. In passing the court noted that as section 24, which deals with the issuance of telecommunication licences illustrates, the Act may not have been intended to apply to individual users of social media or mobile telephony. Individuals such as Andare and others who post messages on Facebook and other social media do not have licences to “operate telecommunication systems” or to provide telecommunication “as may be specified in the licence.”
With regard to the constitutionality of Section 29, the court held that this section imposes a limitation on the freedom of expression in vague, imprecise and undefined terms that go outside the scope of the limitations allowed under Article 33 (2) of the Constitution. According to the court, the State in the present were unable to show that such limitations are permissible under Article 24, or that they are the least restrictive means available. If the intention is to protect the reputations of others, the court held that the prosecution of mean-spirited individuals who post defamatory statements on social media does not achieve that purpose. The court was of the opinion that libel laws provide for less restrictive means of achieving this purpose – citing the case of Arthur Papa Odera vs Peter O. Ekisa, Civil Suit No 142 of 2014 in which the reputation of the plaintiff, who alleged defamation in postings on social media by the defendant, was vindicated in a civil process by an award of Kshs.5m in damages to the plaintiff against the defendant for libel. In the circumstances, the court found that the provisions of section 29 of the Kenya Information and Communication Act is unconstitutional for violating Article 33 of the Constitution, and therefore null and void.