Read Gautam Bhatia’s brief analysis of the case here.
Suhrith (@suhrith) tweeted: Still struck by the court’s brave stance. Had recently read this on censorship in Kenya: https://t.co/1aV5Keu2n7:
Kenya: The Devious Art of Censorship by Alan Rusbridger
In some parts of the world, it is still possible to silence a journalist with a sharp blow to the side of the head. But as newspapers the world over struggle with the financial disruption of digital technologies, governments are finding new ways of controlling the press. Murder is messy. Money is tidy.
Cyberlaw Clinic (@cyberlawclinic) tweeted: "From the blog: @InterwebzNani and @anite_anite on an important free speech win at the High Court of Kenya":
Kenyan Court Knocks Down Criminal Defamation, Safeguards Freedom of Expression | Cyberlaw Clinic
Efforts to create more space for free expression in Africa have been strengthened by the Kenyan Judiciary. In the case of Jacqueline Okuta & Anor vs. AG & Others, the High Court of Kenya on 6 of February 2017 annulled section 194 of the Penal Code that provides for the offence of criminal defamation. This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.
“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,” Judge Mativo of the High Court of Kenya pronounced in his judgment.
The Judge noted that upon promulgation of the Constitution of Kenya in 2010, it was expected that certain provisions in Kenya’s existing laws were to be amended to align them to the letter and spirit of the Constitution. However, seven years later, this expectation had not been met. Relying on regional and international standards on freedom of expression, the Court concluded that criminal defamation is unconstitutional, reasoning that “the chilling effect of criminalizing defamation is exacerbated by the maximum punishment of two years’ imprisonment imposable for any contravention which is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. The Court further held that imprisonment as a sanction was not “reasonably justifiable in a democratic society” and that the availability of civil remedies afforded sufficient redress for injury to one’s reputation.