A high court judge on Monday declared section 194 of Penal Code as invalid, saying it contravenes freedom of expression guaranteed under section 33 of Constitution. Milimani High Court Judge John Mativo has ruled that anyone who is defamed has remedy under civil law to seek compensation and therefore criminalizing defamation is unacceptable in a democratic society.
“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment for any contravention of section 194,” he ruled. “This penalty in my view is clearly excessive and disproportionate for purposes of suppressing objectionable or opprobrious statement. The accomplishment of that objective certainly can’t countenance the spectre of imprisonment as a measure that is reasonably justifiable in a democratic society.”
His judgment arose out of a case filed by Jacqueline Okuta and Jackson Njeru challenging charges of criminal defamation brought against them arising out of a Facebook post.
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Speaking after the ruling Henry Maina, Director of ARTICLE 19 Eastern Africa, said the judgment is a huge win for freedom of expression in Kenya, and an encouraging step towards respect for human rights. “ARTICLE 19 is pleased to see that this substantial threat to freedom of expression has been recognised by the courts in line with the African Commission on Human and Peoples’ Rights,” he said.
He said that ARTICLE 19 welcomes the news that this provision has been declared unconstitutional, and agrees with Justice Mativo that the Kenya government should kick-start the process of reviewing similar laws that unjustifiably limit the right of Kenyans to seek, receive and impart information as enshrined under the Constitution of Kenya 2010.
Maina said that Kenya should fulfill her obligations to meet international freedom of expression standards, as well as the standards set by the Kenya Constitution itself.
[crp]
