Win for Kenyan bloggers as court quashes controversial law

By Omondi Julius Odera, Nairobi, Kenya

Bloggers and social media users in Kenya have with sighed relief with quashing of a contentious section of law that State has been using to prosecute individuals who were mostly perceived to be critics of the establishment.

The provision in the Kenya Information and Communications Act (Kica) creates the offence of 'misuse of a licensed telecommunication device.'  This act which has been used widely to silence any criticism on social media has been declared unconstitutional by High Court Judge Mumbi Ngugi.

The Jubilee government argued that the law was intended to protect the reputation of others from any malicious characters online who find solace in blackmailing. However Justice Mumbi Ngugi ruled it violated some provisions of the Constitution besides being too broad. "If the intention was to protect the reputation of others, then there are clear provisions in the law of libel. I, therefore, come to the conclusion that section 29 of Kica cannot stand," 

The judge explained section 29 of Kica is too broad that it is impossible for one to ascertain what is exactly not permitted. The section, which prescribes a fine of about $500 or a three-month jail term, has been viewed by civil rights activists as an affront on civil liberties and prone to abuse by authorities keen to clamp down on free speech.

The section says 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 Sh50,000 or to imprisonment for a term not exceeding three months, or to both."

The Director of Public Prosecutions and the Attorney General had defended the law, arguing it was meant to prevent the character of others from being tarnished. But the judge cited the article that details instances when rights can be limited, saying the contentious law did not meet the threshold for inclusion.

Since its enactment, the law has been used to prosecute many bloggers and civil rights activists who demand accountability from their seemingly corrupt leaders. Last week, Peter Ekisa was fined $50000 over allegations of accusing his area Member of Parliament Arthur Odera for misusing Uwezo Fund. In delivering the ruling, Justice Mbogholi Msagha relied on the controversial Section 29 of the Kenya Information Communication Act.  

Between January 2016 and March 2016 alone, the controversial act has been used to prosecute over 15 individuals mainly bloggers and social media users.  These statistics indicate the extent at which the state was relying on this act to clamp down any dissenting voice.

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